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On Sunday, the website Wikileaks published the first batch of more than 250,000 leaked U.S. embassy cables, confidential documents that chronicle sensitive State Department secrets. The federal government is, to say the least, not happy.
And that means the now-dubbed CableGate will join a long list of political scandals worthy of the “gate” suffix to result in at least one criminal prosecution. Already the United States Army has charged its prime suspect, twenty-three-year-old Private Bradley Manning, as the source of the leak. Attorney General Eric Holder told reporters Monday that the federal government would continue its probe into the leak for other responsible parties.
That could be bad news for the Wikileaks staff. Representative Peter King, ranking Republican for the House Committee on Homeland Security, said Sunday that the federal government should charge Julian Assange, Wikileaks editor-in-Chief, for conspiring to violate the Espionage Act.
The first section of the Espionage Act, one of Manning’s charges, punishes for “up to ten years” defendants who collect information prejudicial to national defense with intent or a reason to believe that “the information is to be used to the injury of the United States.” Section 793(g) punishes all defendants who conspire to violate another provision of the statute.
Conspiracy might be more difficult to prove than Representative King thinks. In general, to prove conspiracy, the government must show beyond a reasonable doubt that the defendant entered into an agreement to commit the underlying offense. If Private Manning uploaded the documents unassisted, as the website allows, arguably the government could not show an agreement. Other Espionage Act provisions, however, punish transmitting national defense information, which possibly implicates Assange. The Supreme Court of the United States has yet to squarely address the statute’s application to the press (though the members of the Court did discuss it via concurrences in the Pentagon Papers case, New York Times Co. v. United States).
But you can bet on fewer gray areas in Private Manning’s prosecution. He faces four counts of violating Article 92 of the Uniform Code of Military Justice, which prohibits violating general military regulations, and eight counts under Article 134 for committing crimes that bring discredit to the armed forces–more specifically, violating the Espionage Act and committing fraud in connection with computers. Depending on whether those charges collapse into a single incident, Manning could face a grand total of fifty-two years in prison.
– Michael Walker
Tagged with: armed forces • Bradley Manning • Cablegate • conspiracy • criminal law • Eric Holder • Espionage Act • homeland security • internet • journalism • Julian Assange • national defense • New York Times v. United States • Peter King • technology • The Espionage Act • Uniform Code of Military Justice • wikileaks
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