The recent online dumping of classified defense documents and diplomatic cables by the organization WikiLeaks and its subsequent reporting by The New York Times and other news media has sparked a spirited debate over whether the publication of such highly sensitive material violates U.S. criminal law, specifically the Espionage Act, which was passed into law in 1917.
As has been widely reported, the U.S. Justice and Defense Departments are investigating in order to determine whether to prosecute any individuals as a result of these disclosures.
To place this controversial case into historical perspective, I compiled a brief timeline of noteworthy cases involving the criminal prohibitions on the publication of classified defense information, along with measures the U.S. government has taken in order to combat espionage.
1917: Two days after ending diplomatic relations with Germany, the U.S. Congress passed the Espionage Statute of 1917 to protect the country against foreign agents. As many as 2000 were prosecuted during World War I, including journalists from a German language newspaper, a Socialist newspaper, and a left-wing journal.
1939: In the only challenge to the Espionage Act that has reached the U.S. Supreme Court, The Associated Press (3-11-1939) reports that Hafis Salich, a Russian-born former Navy intelligence agent and Mikhail Gorin, a Russian tourist agent, were convicted of violating the Espionage Act by a Federal court in Los Angeles in which Salich transferred data to Gorin and by extension Russian authorities concerning Japanese espionage activities and sabotage plans.
NOTE: Gorin was sentenced in U.S District Court for six years to a Federal penitentiary and fined $10,000 for espionage; while Salich was sentenced to four years in prison and fined $10,000. At the request of the State Department, Gorin was released from prison on probation in 1941 on the condition he leave the United States and return to Russia.
1942: The Office of Strategic Services was founded by Gen. William J. Donovan and charged with coordinating espionage activities behind enemy lines for the branches of the United States military.
1947: The National Security Act created the Central Intelligence Agency (CIA) to coordinate intelligence and the National Security Agency for research into codes and electronic communication.
1950: The Internal Securities Act was passed over President Truman’s veto and became law in September, 1950. Among other provisions, the bill required all "Communist-action organizations" to register with the government, making U.S. citizens liable for prosecution for such ill-defined crimes as "fomenting revolution."
1971: In a landmark decision, the U.S. Supreme Court in a 6-3 decision refused to grant the government’s request for an injunction to prevent The New York Times and The Washington Post from printing a classified study of the U.S. involvement in Vietnam. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment.
1986: CIA Director William J. Casey appeals to the Justice Department to prosecute news organizations under 18 U.S.C. § 798 of the Espionage Act for publishing classified information concerning interceptions of communications by the Libyan government, including the television network NBC for reporting that accused spy Ronald W. Pelton may have provided the Soviets information about an NSA project code-named “Ivy Bells” involving U.S. submarines eavesdropping inside Soviet harbors. No prosecution of news organizations resulted from these incidents.
1988: In the United States v. Morison, the U.S. Court of Appeals for the Fourth Circuit upheld the Espionage Act conviction of former U.S. Navy analyst Samuel Morison, who had mailed secret satellite photos to Jane’s Defence Weekly, a popular British military affairs magazine.
The Court rejected Morison’s appeal that the First Amendment ``offers asylum’ because information was merely passed on to a news organization. The Court reasoned that Morison signed a nondisclosure agreement and additionally took an active role in taking the photos, as opposed to passively receiving information.
NOTE: The Morison case represents the first court case in which a person was convicted for selling classified material to the media.
2002: The Washington Post (10-24-02) reports that Attorney General John Ashcroft said an interagency study of current laws and leaks of classified information has determined that "current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified."
2005: Steven Rosen and Keith Weissman, former lobbyists for the American Israel Public Affairs Committee, are indicted and charged with espionage after government prosecutors say they shared sensitive classified information with their colleagues, journalists, and Israeli diplomats, information they obtained after speaking with an American Defense Department analyst.
NOTE: The U.S. Justice Department moved on May 1, 2009 to drop all charges against Rosen and Weissman.
July, 2010: WikiLeaks obtained more than 91,000 secret U.S. military reports related to the war in Afghanistan and posted the majority of them, unredacted, on its website after first alerting The New York Times and two foreign newspapers, the Guardian (London) and Der Spiegel (Germany), about the pending disclosure.
November 28, 2010: The first 200 or so out of 251,000 US diplomatic cables were published by wikileaks.org; some of which were redacted to protect diplomatic sources.
December 2, 2010: In response to the WikiLeaks publications , Senator John Ensign, R-Nev., introduces The Securing Human Intelligence and Enforcing Lawful Dissemination Act’ (“SHIELD Act”), S. 4004 which would amend the Espionage Act by adding coverage for disclosures of classified information related to human intelligence activities . In addition, the bill would add “transnational threat”(that is, international terrorism, narcotics trafficking, the proliferation of weapons of mass destruction and the delivery systems for such weapons, and organized crime) that threatens the national security of the United States”
Source: Congressional Research Service, `` Reporters or Spies’’? News Media & the Law, November 1, 2006; Columbia Electronic Encyclopedia