By Victoria Baranetsky

In the past few months WikiLeaks has attracted substantial global attention concerning its release of thousands of confidential U.S. government documents including information about the wars in Iraq and Afghanistan.  Everyone has commented on the leaks from the New York Times and the Wall Street Journal to Saturday Night Live but it was Ron Paul, Texas Congressman, who finally seemed to ask a poignant question several days ago, “[Which events caused more deaths,] lying us into war, or the release of the WikiLeaks papers?” Congressman Paul’s question also intimates the more crucial legal question; did Wikileaks strike the right balance between transparency and secrecy?

The Espionage Act of 1917, which the New York Times reported Wikileaks founder Julian Assange might be prosecuted under, in fact delves into this balancing act. The Espionage Act makes it a felony for an unauthorized person to possess or transmit “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”

In essence, the crucial question under the Act is whether the felon “posses[ed] or transmit[ed]” the information or whether he simply published it, as a journalist.  If he possessed it, he will be prosecuted and secrecy wins. If he simply published it, transparency will be the victor. Therefore is he a carrier or a journalist? This then begs the question that has caused much confusion in the past decade, who is a journalist?

In recent history two people have been prosecuted under the Espionage Act.

First, Daniel Ellsberg was prosecuted for possessing and stealing the Pentagon Papers during the Nixon administration. After the Supreme Court rebuked President Richard Nixon’s attempt to enjoin newspapers from publishing those papers, a federal judge threw out the Espionage Act charges because of government misconduct in trying to get information on Ellsberg.

Second, under the Reagan administration Samuel Loring Morison, a civilian intelligence analyst for the Navy, was convicted under the Espionage Act for supplying a British publication, with photos of a Russian aircraft carrier. Morison pled he was simply a journalist, but he was sentenced to two years in prison.

So the question here is whether Assange, is like Ellsberg and Morison and can be liable for leaking the information or is he merely publishing available information as a journalist? Is Wikileaks a journalistic endeavor that struck the balance between secrecy and transparency?

Supporters and critics of Wikileaks disagree on these questions. First, they disagree on the balance. Supporters of the leak call attention to the government’s ever increasing dependency on secrecy (see Peter Galison’s film), especially since the Bush Administration, and argue that it comes at the cost of an uninformed electorate. They defend Wikileaks as a valiant watchdog fighting in the name of transparency and find that the openness outweighs the danger. Critics, however, argue that secrecy is necessary for safety and therefore transparency is not categorically justified (see Prof. Noah Feldman’s article). They argue that Wikileaks failed to strike a balance because the site risked our security with countries like China (big cost) for no benefit. Unlike Daniel Ellsberg’s leak of the Pentagon Papers, Wikileaks had no message, they argue.

As to whether Assange acted as a journalist, the question often end runs into a discussion of character. What was Assange’s motivation for publication? Was it simply to gossip and garner eyeballs? Or was he motivated by valiant reasons like freedom of information, truth seeking and peace, like a Bob Woodward or Carl Bernstein of our time? Critics argue that Assange did not behave like a journalist because he was motivated by his hubris instead of his message (as can be supported by his many press releases and bravado attitude). Wikileaks, they continue, advertises itself not as a news source but only as a publishing house for smoking guns. Therefore, as Floyd Abrams, attorney who defended the New York Times in the Pentagon Papers case, stated, Assange may be prosecuted under the act because he appears to have acted with “scienter.”  In other words, Assange intended to publish something controversial and hyperbolic not as journalism but as scandalous chatter.

However others seem less certain about the line between journalism and mere gossip. Supporters say that Wikileaks maps nicely onto the New York Times’ role in the Pentagon Papers situation because it simply published available information. Others even argue that,  “This is kind of the shot heard round the world — this is Lexington,” said John Perry Barlow, a co-founder of the Electronic Frontier Foundation, a civil liberties organization that advocates for a freer Internet, reported the New York Times. These supporters also cite that “The courts have been somewhat reluctant to draw a line of demarcation between what we call mainstream media and everyone else,” said Washington attorney Stan Brand to the Associated Press. On a more technical note, John G. Palfrey, a Harvard Law School professor told the New York Times, “This is less about stealing than it is about copying.”

However, in a letter sent to Mr. Assange and his lawyer on November 27, 2010, State Department Legal Adviser and former Dean of Yale Law School, Harold Hongju Koh, “warned in strong terms that the documents had been obtained ‘in violation of U.S. law and without regard for the grave consequences of this action,” as reported the Wall Street Journal.

In response to former Dean Koh, Ron Paul’s question seems operative, “which events caused more deaths; lying us into war, or the release of the WikiLeaks papers?” If Wikileaks caused little danger to our security; if it revived a mood of transparency in a decade of opacity; and if we view journalists not in stereotypical terms of 1950s newspapermen – then don’t Assange’s acts seem justified. The Courts will eventually let us know.