Top House Democrats struggled Wednesday to find legal avenues by which the United States could prosecute WikiLeaks founder Julian Assange, saying the Espionage Act’s antiquated and sweeping language distorts several key differences involving sensitive material, rendering it toothless in the Internet age.
A congressional committee hearing Thursday investigated the implications of prosecuting the organizations that have publicly released thousands of classified cables over the past year including the most recent dump of exchanges between diplomats.
Panel Chairman Democratic Rep. John Conyers set the tone of the hearing saying that “prosecuting WikiLeaks would raise the most fundamental questions about free speech, about who is a journalist and what citizens can know about their government.”
Other Representatives were equally concerned about any prosecution under the current Espionage Act.
“What Wikileaks did was illegal,” said Virginia Democratic Rep. Bobby Scott. “We have been agonizing over this.” Scott, however, stressed that “we need to take our time and get [legislation] right.”
Virginia Republican Rep. Bob Goodlatte was much more clear in expressing the panel’s frustration with trying to find a way to punish Wikileaks and Assange.
“I’m looking for practical ways to solve the problem… for us to legislatively reassert our authority,” he said.
The expert witnesses before the Committee on the Judiciary panel generally agreed with Conyers, saying that any prosecution under the current Espionage Act would raise a variety of legal questions for news organizations as well as threaten basic 1st Amendment rights. Instead, the experts called for an overhaul of the Espionage Act of 1917 in order to reflect the changing information-sharing landscape.
“Spying (or real espionage), disclosure of national defense information and mishandling of classified information … should be set out in separate provisions of the law, each that clearly defines the offense it seeks to address,” said Abbe D. Lowell, a lawyer with the McDermott, Will and Emery firm.
“The Espionage Act of 1917 was designed and intended to deal with classic acts of espionage,” said Stephen I. Vladeck. Like the other witnesses at the panel, the American University Professor of Law suggested several changes to solve the “uncertainty surrounding the Act’s applicability in the present context.”
Both witnesses and committee members said the current amount of classified material is far too much and called for narrowing the standards for what the U.S. government retains and deems “classified.”
Conyers said he expected the next judicial committee under Republican leadership to pursue revisions of the Espionage Act.
A spokesperson for the Judiciary Committee’s Republicans said Chairman-elect Lamar Smith “wants to ensure that the Espionage Act conforms to modern day technologies and will work with the Justice Department to determine whether a legislative fix is necessary.”