The Justice Department would have no problem distinguishing WikiLeaks from traditional media outlets, if it decides to charge WikiLeaks founder Julian Assange with violating the Espionage Act, a former federal prosecutor told lawmakers Thursday.

"By clearly showing how WikiLeaks is fundamentally different, the government should be able to demonstrate that any prosecution here is the exception and is not the sign of a more aggressive prosecution effort against the press," said Kenneth Wainstein (pictured at right), former assistant attorney general on national security, during a House Judiciary Committee hearing about WikiLeaks and the Espionage Act on Thursday.

The hearing was the first to publicly address WikiLeaks. It consisted of testimony from legal scholars and attorneys as well as former Green Party presidential candidate and consumer advocate Ralph Nader. Testimony focused primarily on whether the 1917 Espionage Act should be revised to make it easier to prosecute recipients of classified information.

But Wainstein's remarks, coming from a former prosecutor, hint at arguments the Justice Department is likely to make if it proceeds with prosecuting Assange under the existing Espionage Act.

Wainstein was addressing the strong First Amendment challenges that would arise if the government prosecutes Assange for publishing classified information. Free-press defenders say if WikiLeaks can be charged with espionage for publishing such information, there is no reason why a similar prosecution couldn't be lodged against other news organizations for publishing similarly classified or sensitive information.

But Wainstein said that WikiLeaks has shown itself to be fundamentally different in three ways and is therefore vulnerable to prosecution.

While traditional media outlets focus on publishing newsworthy information to educate the public, WikiLeaks focuses on obtaining and disclosing any official secrets. The media also gather news about sensitive areas of government operations through investigative reporting, he said, while WikiLeaks uses encrypted digital drop boxes to encourage disclosures of sensitive government information and circumvent laws prohibiting such disclosures.

The media also typically limit disclosures only to sensitive information that specifically relates to a particular story deemed to be of public importance, Wainstein said. WikiLeaks, however, releases troves of documents with little or no regard for their relevance.

In his written statement to the committee (.pdf), Wainstein also cited Assange's oft-quoted remark that he "enjoy[s] crushing bastards" as evidence that his release of sensitive information is "more personal rather than simply a public-minded agenda." Furthermore, WikiLeaks' distribution of an encrypted "insurance" file, containing secrets that would be revealed if anything happens to Assange, "reflects a willingness to use his leaked documents for extortion and personal protection rather than simply to advance the values of transparency and public awareness," Wainstein argued.

Washington's hand-wringing over WikiLeaks comes as the organization continues to publish from its leaked trove of 250,000 U.S. State Department cables. Unlike earlier releases, the cables are appearing slowly – only 1,600 have been published thus far – and each cable has been read by a journalist, with some names of U.S. diplomatic sources redacted.

Some of the witnesses at the hearing pointed out that many of the cables published so far have contained information that should not have been classified and took aim at the government's routine over-classification of documents.

"The suppression of information has led to far more loss of life, jeopardization of American security, and all the other consequences now being attributed to WikiLeaks and Julian Assange," Nader said.

Gabriel Schoenfeld, a senior fellow at the Hudson Institute, indicated that as a result of so much secrecy, leaks to the press had become one of the primary ways for the public to be kept informed about what its government is doing.

He criticized WikiLeaks, however, for being reckless in the releasing of what he called LMD - "leaks of mass disclosure." Such leaks are "so massive in volume and indiscriminate" that it becomes difficult to assess the overall level of harm they might cause, he said.

Talk also turned to the so-called Shield Act, which Congress has been mulling as an amendment to the Espionage Act. The amendment would make it illegal to publish the names of informants who provide information to the military and intelligence agencies.

However, Geoffrey Stone, a law professor at the University of Chicago Law School, said the amendment, as it currently stands, would be unconstitutional if applied to nongovernment persons, as it would suppress their right to free speech.

Photo: Kenneth Wainstein

Courtesy National Criminal Justice Reference Service