WikiLeaks may spawn new sedition act

by Bob Barr

The Barr Code

The infamous Sedition Act, which criminalized speech critical of the federal government and which was passed by the Federalists during another of America’s undeclared wars (that time, against France), lasted only three years, from 1798 to 1801.  However, if the congressional critics of WikiLeaks founder Julian Assange have their way, a new and revised version of the Sedition Act may be in the offing.  

Thomas Jefferson, who became our third president in 1801, was not only a vocal critic of the Sedition Act, but pardoned those who had been punished pursuant to its terms.  Jefferson was, of course, right in his view of this law (which expired before its constitutionality could be determined by the Supreme Court).  His wisdom is well-needed today to quell the blood thirst of those clamoring for Assange’s head because of WikiLeaks’ release of cables and e-mails critical of and embarrassing to, the government. 

The primary vehicle these modern-day Federalists are looking to employ in order to criminalize the publication of information critical of government policies and actions is the venerable, but little-used 1917 Espionage Act.   

Many legal scholars, not prone to the pressures of public sentiment (which polls suggest strongly supports prosecuting Assange), correctly argue there simply is no proper basis for a case against the WikiLeaks founder under the Espionage Act, federal conspiracy laws, or other statutes.  In recent testimony before the House Judiciary Committee, several constitutional scholars eloquently presented the case for not prosecuting Assange; based on a fair reading of the First Amendment to the Constitution, current law, and sound policy. 

One of those who testified, the Hudson Institute’s Gabriel Schoenfeld, also noted in an interview with Politico that the government was “not going to be able to threaten or touch Julian Assange,” pointing out that there were clear conflicts with the First Amendment in steps the Justice Department appeared to be taking in an effort to construct a case against him. 

While some legal scholars, such as former Assistant Attorney General Kenneth Wainstein, encourage the government to prosecute Assange (based largely on a theory that his actions and motives are not those of a traditional journalist), the clear weight of constitutional law and policy argues to the contrary. 

A  Congressional Research Service report, “Criminal Prohibitions on the Publication of Classified Defense Information,” published earlier this month, notes that the relevant provisions in the Espionage Act most frequently cited as a way for the Justice Department to build a case against Assange, have almost exclusively been used to prosecute the individual(s) making the information available without authorization.  In this case, that culprit allegedly is Army Private Bradley Manning; who almost certainly deserves prosecution. 

Reading the Espionage Act the way Assange’s critics would have us do, would open a Pandora’s Box of virtually unlimited reach.  As Benjamin Wittes, a legal analyst from the Brookings Institution, explained on his blog, such interpretation would reach even “casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them – in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents.”  There wouldn’t be enough jails to hold us all. 

Yet such ridiculously broad expansion of federal law, simply to pillory a person who clearly delights in embarrassing the government, would seem to be what some in Washington, including Sen. Joseph Lieberman (I-CT) and Rep. Peter King (R-NY), just might have in mind.  And, unfortunately, there are many in the executive branch who appear to be moving in just such direction; actively constructing what may becomes a conspiracy case against Assange. 

We can only hope Jefferson’s wisdom and understanding will speak from across the ages to shine the bright light of constitutional truth on such dark plans.