By Trevor Timm

A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.” –Judge Murray Gurfein, June 1971.

Since August, when Wikileaks first published 91,000 classified documents relating to the Afghanistan War, and in October, when they published approximately 400,000 more relating to the War in Iraq, many conservative commentators have been clamoring for the Justice Department to prosecute Wikileaks for publishing classified information.

But in the United States, generally publishing classified information is not a crime. The sort of information that a news organization can be prosecuted for publishing is limited to: nuclear secrets (Atomic Energy Act), the identities of covert agents (Intelligence Identities Protection Act), and certain forms of communications intelligence (Section 798 of the Espionage Act).

Perhaps lamenting that the U.S. does not have an Official Secrets Act like the United Kingdom, right wing columnists have consistently misinterpreted these Acts, or have cited other provisions of our espionage laws which almost surely do not apply to Wikileaks.

The most commonly cited statute by those who advocate prosecuting Wikileaks is Section 793(e) of the Espionage Act. In August, former Bush speechwriter Marc Theissen linked to this section in an article for the Washington Post when he wrote that Wikileaks is “a criminal enterprise” whose founder, Julian Assange, should be arrested by U.S. forces on foreign soil, international law be damned.

But this provision does not apply to those who publish information.

Section 793(e)reads “Whoever having unauthorized possession of, access to, or control over any document…relating to the national defense…willfully communicates… the same and fails to deliver it to the officer or employee of the United States entitled to receive it…[s]hall be fined under this title or imprisoned not more than ten years, or both.”

As made clear in the Pentagon Papers case, the word “communicates” was never meant “to encompass publication” or to affect the press. Congress included the word “publish” in three other sections of the Act but intentionally left it out of 793. As the legislative history of this provision states, “Nothing in this Act shall…in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States.”

Justice Douglas referenced the legislative history in his concurring opinion, when he wrote of Section 793, “it is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.”

Washington Times columnist Tony Blankley wants Wikileaks charged under a similar provision in the Espionage Act, Section 794(b), which does include the word “publish.” Yet this statute applies only to information that is published with intent to deliver it to the enemy, a fact any prosecutor would have to prove beyond a reasonable doubt. While Wikileaks admits it intended to affect U.S. public opinion of the war (as Daniel Ellsberg did with the Pentagon Papers), this is far different than intending the information for the enemy. The documents were first disseminated to only domestic and allied country newspapers to effect public opinion of the war, and Wikileaks redacted names and other information in the Iraq War logs. And while Wikileaks was criticized for not redacting names in the Afghanistan files, it had asked the government for help redacting names from the documents through an intermediary—the New York Times—and the government declined to help.

Further, Section794 sets out specific information that is prohibited such as troop and ship “movement[s]” and military “plans,” emphasizing future missions, while the Iraq and Afghanistan leaks consisted of after-action reports about what had already taken place. In other words: history.

Regardless of the specificity of Section 794, there is no proof the documents have led to any harm of U.S. soldiers. Although Chairman of the Joint Chiefs of Staff Admiral Mike Mullen said Wikileaks will have “blood on its hands,” the Pentagon later admitted, “We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the Wikileaks documents.” Admittedly, that U.S. forces haven’t be harmed by the publication of these documents yet is not guarantee against a harm yet to come. Still, it is worth noting that despite the hysteria of the conservatives, and their predictions of disaster resulting from Wikileaks’ leaks, we know of no ramifications from the publication whatsoever.

Other commentators have cited Section 798 of the Espionage Act, a provision that has previously alarmed journalists because it has no intent requirement like Sections 793 and 794. In other words, someone can be prosecuted under this act, no matter the motivations behind publication or the audience it was intended for. But these commentators do not seem to have analyzed the law beyond that point. If they did, they would realize, as Salon.com columnist Glenn Greenwald points out, Section 798 covers “only very narrow categories of information (i.e., cryptography, signals communication intelligence, or interception of foreign governments’ communications) which plainly do not encompass the leak of the Afghan [or now Iraq] war documents.”

No media outlet has ever been charged under Sections 793, 794 or 798. The Bush Administration—not exactly a friend to the press—considered prosecuting the New York Times under Section 798 for its story on the NSA’s most likely illegal warrantless wiretapping program, which fits more squarely under the definition of communication intelligence. Yet even then, the Justice Department declined to do so.

Perhaps realizing these realities, during the most current leak of Iraq War documents, many commentators seem to have dropped the pretense that Wikileaks could be charged under a specific statute at all.

Jonah Goldberg openly wondered in the Chicago Tribune and several other newspapers last week, “Why wasn’t Julian Assange garroted in his hotel room years ago? It’s a serious question.” Mr. Goldberg most likely knows the answer is because assassination is illegal (Er, at least it used to be).

The New York Sun, after asking “What would our greatest leaders expect President Obama to do in respect of Julian Assange?” suggested FDR or Lincoln would have tried Assange for treason. The Sun probably knows Assange is a foreign citizen, making a treason charge impossible.

And former Bush State Department official Christian Whiton said the Wikileaks organization should be deemed “enemy combatants, paving the way for non-judicial actions against them.” Judging by Whiton’s refusal to elaborate on his comments, he probably knows that will never happen either.

All of this evidence suggests that the Justice Department’s statement saying they are “exploring possible criminal charges” against Wikileaks is just posturing.

As Timothy Matusheski, a lawyer working with Wikileaks and Mr. Assange, said, “They accuse him of breaking the law. But they haven’t said what law.” Perhaps because they can’t find one.