Event Summary: WikiLeaks Panel Addreses First Amendment Questions


Fellow in Law and Government Stephen Wermiel used his opening remarks at “Wikileaks, The Espionage Act, and the First Amendment: The Law, Politics, and Policy of Prosecuting Julian Assange,” to bring the audience up to speed on the size and scope of the leaked classified documentation.

"WikiLeaks has released 251, 287 classified cables," Wermiel said. "And just this morning announced the release of more documents coming soon."

Wermiel then introduced the panel of experts, which consisted of Bruce D. Brown, partner, Baker and Hostetler LLP, Abbe Lowell, partner, McDermott Will & Emery LLP, Daniel Marcus, fellow in law and government, American University Washington College of Law, Victoria Toensing, partner, diGenova & Toensing LLP, and Steve Vladeck, professor of law, American University Washington College of Law.

Marcus started the panel introductions by providing a background on First Amendment law, including the landmark Pentagon Papers case of 1971.

"In the wake of the Pentagon Papers case, there had never been an agreement between the government and the mainstream press in which the government will prosecute the leaker, and not the leakee or the mainstream media," Marcus said. "The press, in return, has agreed to behave responsibly."

He went on to mention recent examples of high profile leaks, where the government did not try to stop the publication of the leaked information, including the publication by the Washington Post of secret CIA detention camps for high-value Al-Qaeda operatives.

Abbe Lowell, one of the attorneys in the highly pertinent AIPAC case that saw two lobbyists indicted in 2005 on charges of espionage, explained the flaws of the central law that the WikiLeaks case pivots around: the Espionage Act, signed in 1917.

"The problem with the law is that it is 100 years old and the Pentagon Papers cased revealed its flaws," Lowell said. "It is a single law that applies in all contexts, with the same penalties for different crimes."

He described the contortionist act that the courts have undergone, twisting and shaping the law to make it work in various cases.

"The Espionage Act is old and needs tinkering," Lowell said. "If Congress doesn't make the changes, the courts will try to figure it out."

Bruce Brown, a former reporter and now a partner at Baker & Hostetler, brought his unique dual perspective to the WikiLeaks controversy, highlighting the Bartnicki v. Vopper Supreme Court case from 2001 which examined whether journalists could be prosecuted after the publication of information that was obtained illegally. He also discussed how the Obama Administration has handled the problem of leaked classified information.

"We've seen in the Obama Administration more aggressive prosecution of leakers," Brown said. "We of course would like to see this issue dissipate without extensive tinkering with the law by Congress."

Victoria Toensing got right to the point, expressing incredulity at the government's ability to prosecute WikiLeaks for the publication of classified information, based on past examples of news outlets doing the same without facing government retribution.

"If the government doesn't prosecute the New York Times for past leaks, including some on the NSA, I don't see how they can prosecute WikiLeaks," Toensing said. She also expressed doubt that any European country would be willing to extradite WikiLeaks founder Julian Assange to the United States, and dismissed claims that some mainstream media outlets are making that they are a higher form of journalism than WikiLeaks and smaller outlets.

"In today's modern media, any of us can be a journalist," Toensing said. "Who is the government to say who is worthy of the title of journalist, and who is not? I don't buy the argument that 'we are better than Wikileaks."

Stephen Vladeck listed many reasons why the WikiLeaks case was so important.

"It exposes soft spots in the Espionage Act, incoherence in Supreme Court jurisprudence with regard to free speech and freedom of the press, and the pervasive sweep and depth of overclassification of government documents," Vladeck said.

The event continued on with panelists debating many issues surrounding the prosecution of Assange, and the case's potential impact on First Amendment case law.