With British courts now having issued a formal order approving the extradition of Julian Assange, the debate sparked by Assange’s continuing legal saga will undoubtedly embrace the controversial question of whether Assange and others charged with unlawfully disclosing U.S. national security information should be afforded the opportunity to assert a “public interest” or “public accountability” defense; that is, to argue to a judge or jury that the public interest served by their disclosure of classified information warrants either full exoneration or the mitigation of any sentence imposed upon conviction.

The concerns of the press regarding the Assange prosecution

The indictment of Assange has struck close to home for many journalists. Gabe Rottman at the Reporters Committee for Freedom of the Press declared that the Justice Department “now seeks to punish the pure act of publication of newsworthy government secrets under the nation’s spying laws.” According to the Society of Professional Journalists, the concern is with “the effects this [the Assange prosecution] could have on journalists seeking to publish lawfully obtained classified information in the public interest.” In truth, however, at least with respect to journalists, “lawfully obtained classified information” is a non sequitur. Lawful access to classified information requires possessing both the requisite level of government security clearance and what is described as the “need to know” reflecting that access is needed for the holder to perform a prescribed task. This two-pronged justification required for access to any particular piece of classified information represents a standard that cannot be “lawfully” met by any uncleared journalist coming into possession of that information.

The opening paragraph of the Assange indictment illustrates why it is so difficult to draw a distinction between Assange and mainstream reporters: “To obtain information to release on the WikiLeaks website, ASSANGE recruited sources and predicated the success of WikiLeaks in part upon the recruitment of sources to (i) illegally circumvent legal safeguards on information, including classification restrictions and computer and network access restrictions; (ii) provide that illegally obtained information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing classified and hacked information to WikiLeaks for distribution to the public.”

As many journalists in the mainstream media seem to recognize, this is precisely what national security reporters and their publications often encourage government employees or contractors to do. Experienced journalists reporting on national security, intelligence, and defense-related matters will generally know, or strongly suspect, that the information they are pursuing or, put more accurately, that they are encouraging others with access to pursue, is classified. As Jack Goldsmith has described, the news organizations’ encouragement of this almost clandestine pursuit of classified information “is underscored by the mechanisms they provide for sources to convey information securely and anonymously.” They also know that individuals who furnish them with such classified information are violating the law—hence, the extensive security precautions (like SecureDrop) available for sources to transmit the information to the media. In much the same way as WikiLeaks, these mainstream media outlets encourage sources to provide them with classified information and to obtain that information in whatever manner it can be secured and transmitted, regardless of legality.

One other facet of the Assange indictment that resonates uncomfortably with reporters is the government’s emphasis on the WikiLeaks website’s acknowledgement that “WikiLeaks accepts classified, censored, or otherwise restricted material of political, diplomatic, or ethical significance.” These “standards” mimic those that publishers and editors of mainstream publications apply in making their own decisions regarding the publication of classified information. As former Washington Post editor Leonard Downie once acknowledged, “‘Highly classified doesn’t mean anything to me… The question is, is it important for the American public to know that its government is acting in its name in this particular way?”

In response to the Assange indictment, his supporters and others advocating on behalf of journalists generally argue that applying the espionage laws to Assange’s conduct threatens press freedom. They insist that U.S. espionage laws must be amended or interpreted to provide for a “public interest” defense.Echoing the sentiments voiced by Len Downie and others, they argue that U.S. government classification standards must be tempered by consideration of the “public interest” served by disclosure because secrecy only serves to insulate from external correction the internal organizational dynamics of the national security establishment.

Despite this call to reorient U.S. espionage laws to allow for a “public interest” or “public accountability” defense, the legislative history of those laws and consideration of congressional action in other areas involving the public disclosure of government information confirm that expressly or implicitly incorporating such a defense into the application of those laws is unnecessary and, as a practical matter, unworkable.

The concept of a “public interest” defense

Secrecy understandably breeds suspicion, particularly in a democracy, and journalistic examination of national security operations performs an important role, because the mechanics of U.S. national security are performed by an enormous bureaucracy susceptible to the errors and dysfunction that pervade large organizations generally. Conversely, the unique activities performed by the nation’s national security organizations require addressing those errors and dysfunctions in a manner consistent with preserving the level of secrecy that is a necessary corollary to the effective performance of those activities. Admittedly, it is a delicate balance because the secrecy essential for many national security activities can also serve to insulate internal organizational dynamics from external scrutiny and hence correction. 

Congress has a long legislative history of protecting national security information against unauthorized disclosure. None of the Espionage Act provisions that Assange is alleged to have violated contain any language permitting a defense predicated upon the assertion that the “public interest” is served by disclosure. Critics and Assange supporters have argued that the World War I-era espionage laws are superseded because they predate recognition of the benefits served by public disclosure, but these arguments overlook Congress’ more recent addition to the espionage laws, 18 U.S.C. § 798 passed in 1950. This statute dedicated exclusively to the protection of information related to the communications intelligence activities of the United States omits any reference to a “public interest” defense while specifically criminalizing the act of publishing classified information that meets the criteria described in the statute.

The absence of a “public interest” or “public accountability” defense from the Espionage Laws represents a deliberate legislative choice that is reinforced by the congressional determination that even the broad provisions mandating public disclosure in the Freedom of Information Act  (FOIA) must be tempered by exempting certain categories of information from disclosure, including the “b(1) exemption” providing that FOIA’s disclosure mandate does not apply to information properly classified under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy. The multitude of statutes in U.S. law (including one specifically directed to the U.S. Intelligence Community) providing protection for whistleblowers demonstrates a congressional intent to use specific legislation to protect those whistleblowing disclosures falling within carefully prescribed parameters while intuitively confirming that the unauthorized disclosure of classified national security information is unlawful. Thus, the default position reflected in U.S. law evinces a congressional determination that the unauthorized disclosure of classified national security is pro tanto wrongful and prohibited.

The impracticality of a “public interest” defense to unauthorized disclosure

Engaging in the unauthorized disclosure of classified national security information involves arrogating to oneself the superior right to publicly disclose that which the representatives of the polity have determined should remain secret. In so doing, the “leaker” rejects the security decision made in accordance with standards implemented by democratically elected officials and usurps the right to say what is and is not a legitimate state secret. Proponents of creating a “public interest” defense often speak of the necessity of offering it to protect whistleblowers. However, it is a substantive mistake, not just an error of nomenclature, to label those who make unauthorized disclosures of classified information as “whistleblowers.” “Whistleblowers” make disclosures through the legal channels created by law that afford specific protection for such disclosures. Those who equate “leakers” with “whistleblowers” and seek to make a “public interest” or “public accountability” defense available to the former are ignoring the specific legal avenues created by Congress for genuine statutory “whistleblowers.”

Efforts to construct a “public interest” or “public accountability” defense face immediate problems in establishing a functional terminology. Those advocating for a “public accountability” defense, for example, would make it available to individuals who violate the law on the “reasonable belief” that by doing so they will expose to public scrutiny “substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality.” Whether described in terms of “public interest” or “public accountability,” those proposing acceptance of this defense to unauthorized disclosures leave its application to the courts, but the standards proposed for judicial application are inherently ambiguous. Advocates insist, for example, that access to information can be restricted only “to protect a legitimate national security interest” and that such interest can be lawfully circumvented whenever a leaker has a “reasonable belief” that doing so will expose “substantial wrongdoing.” The inherent subjectivity of terms like “legitimate,” “reasonable,” and “substantial wrongdoing” necessarily contemplates judges making substantive decisions impacting critical national security issues for which jurists are institutionally ill-equipped.

Under this expansive public interest rationale, it is likely that every defendant will seek to pressure the government by insisting that demonstrating the “public interest” served by the disclosure requires the exposure of increasing amounts of classified detail. Indeed, the argument for a “public accountability” defense specifically predicts that “[m]any aspects of the defense will require the court’s consideration of materials that have not been declassified or disclosed.” This is the paradigm “graymail” scenario with the media and foreign intelligence services anxiously following every legal move. Protective measures like the Classified Information Procedures Act passed by Congress to limit such “graymail” scenarios will offer little protection against the dangerous exposure of classified information because the initiative in asserting a “public interest” defense necessarily lies with the defendant who made the wrongful unauthorized disclosure in the first instance.

In this hypothetical of the “public accountability” defense, all of this process involving the nation’s secrets would rely on a federal judge’s sifting through highly technical and sensitive evidence. Ironically, despite the conceptual predicate of transparency and disclosure that purportedly compels creating this “public accountability” defense, its proponents argue that “in camera proceedings may be appropriate for some aspects of a case.” Thus the ultimate acceptance of the defense presumably is still left for decision by a jury afforded access to all of the classified information admitted into evidence.

Moreover, foreign governments can learn a great deal about U.S. intelligence activities by knowing the types of information of interest to U.S. intelligence agencies. Even small collections of data “may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself.” These observations are drawn directly from a U.S. Supreme Court decision and cogently express the danger posed to U.S. national security by any ill-advised effort to endow those who engage in the unauthorized disclosure of national security information with a “public interest” defense that can be employed to force the government into additional disclosures designed to escalate the costs of prosecution.

Picture, for example, an intelligence collection program where the United States surreptitiously enters the territorial waters of a foreign nation in order to gain access to that foreign government’s sensitive communications network. Access is gained by tapping into underwater cables in those foreign territorial waters. Imagine that in doing so, the United States also gains access to certain commercial communications links that carry both foreign and U.S. person communications. The methods employed to access these communications are technically sophisticated and considered beyond the capability of U.S. adversaries, and the collection produces timely and valuable intelligence unobtainable from any other intelligence source. The U.S. person communications acquired in this collection effort are processed, retained, and disseminated only in accordance with minimization procedures approved by the attorney general.

Consider further that highly classified information describing this collection program and the intelligence sources and methods used in its execution are leaked to a journalist. While the leak and its subsequent reporting are likely to be inaccurate in certain respects, the reporting is sufficient to prompt the foreign target to take countermeasures that compromise the collection activity and seriously reduce the intelligence acquired. After investigation, the FBI successfully identifies the leaker who is indicted under provisions of the Espionage Act, including 18 U.S.C. § 798.

Under the construct advanced by proponents of a “public interest” or “public accountability” defense, this defendant would be entitled to assert an affirmative defense that compels the government to make significant public disclosures which reveal additional sensitive aspects of the program. These matters are widely reported since the trial is covered by both print and broadcast media. As collateral damage, the widespread reporting of the disclosures the government is required to make at trial to prove its case prompts another foreign government to institute countermeasures that neutralize similar collection activities, unknown to the leaker, directed at its communications. Additional critical foreign intelligence information unavailable from any other source is lost.

All too frequently, this is the anatomy of an unauthorized disclosure and the consequences it produces. Disclosures directly revealing sensitive intelligence operations create enough problems, but leakers and the journalists who publish their leaks often have little or no appreciation that what they reveal can contain sufficient detail to allow an American intelligence target, through use of its own proficient intelligence capabilities, to capitalize on the disclosure by either: (1) deducing the suspected source of the intelligence information published; (2) uncovering unique details of U.S. intelligence tradecraft; or (3) ascertaining the level and capability of U.S. exploitation to neutralize that source. Even worse, capable adversaries may exploit the disclosure to facilitate the communication of future misleading disinformation. These dangers would be exacerbated by the disclosures that advocates contemplate as a mandatory part of a “public interest’ or “public accountability” defense.

The tale of the U.S. government’s effort to extradite and try Julian Assange remains ongoing but the recent order issued by the British courts suggest that Assange’s transfer to the United States is closer than it has been since he first took refuge in the Ecuadorean embassy in London. If Assange ever faces the indictment now pending in the Eastern District of Virginia, it would be a significant blow to protecting the nation’s secrets if his available legal defenses, or those supplied to any future defendant charged with the unauthorized disclosure of classified information, include a “public interest” defense forcing the government to reveal ever more classified information as the cost of securing a conviction. Congress should pay careful heed if a vote is held seeking to make such a “public interest” defense law.

George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. You can follow him on Twitter (@GeorgeCroner) and find a list of his publications at FPRI.org.

The opinions expressed in this post are those of the author and do not necessarily represent CERL’s official views.