WikiLeaks actions legal? How can this be?

There has been a lot in the news over the last couple of months about the WikiLeaks site publishing classified documents. Here is one recent article.

People with security clearances can get in big trouble for passing these documents along to someone who does not have the appropriate clearance and need-to-know. But why isn’t it illegal to posses such documents without the property authority? And further, why isn’t it illegal to publish it?

It doesn’t make sense that they can shut down a Craigslist category for a little sex (yes, I understand this was a voluntary action, but under a huge amount of pressure) but the government cannot enjoin a web site from publishing classified documents the publication of which could endanger lives.

Falls under the first amendment I should think. I could see how it would be extended to protect someone who was in possession of classified material as well. It would be bad trouble to be caught breaking in to get it, or leaking it yourself, but just having it can’t be a crime. You’d have to show that the person performed a criminal act to acquire it directly.

You are making the Fallacy that America has jurisdiction outside its borders, or you are making a fallacy that the servers have to be inside the USA.

Neither is true in this case.

It may not be a crime in fact today, but I don’t see why it isn’t. Possession of stolen property is a crime, for example. Why hasn’t it been made a federal crime to possess classified documents without authorization?

FuzzyOgre, this is a good point, and I do not know where WikiLeaks operates.

The first amendment does not allow you to publish classified material. WikiLeaks’ organization and servers are located outside the United States.

PFC. Bradley Manning has been charged with supplying classified material to WikiLeaks, and is probably severely boned.

From the Wikipedia

He faces a max prison sentence of 54 years, if convicted. Severely boned is an understatement. What’s happening to him these days? Last I heard, he was being taken to solitary confinement - that was back in the end of July.

That’s less severe than I thought. Isn’t espionage punishable by death under the UCMJ? Not that I think he’d every actually be executed, but yeah, he’s in deep shit.

As to the OP, it sounds like it’s up to the Swedes to deal with WikiLeaks and they have no interest in doing so.

He hasn’t been charged with espionage. (I think that requires deliberately transmitting information to an enemy; leaking documents wouldn’t count.)

I really hope something unfortunate doesn’t happen to their servers, it would be almost to convientent

From Glen Greenwald re: the Espionage Act of 1917:

And regarding 18 USC 1978:

There’s opinion and commentary in the post about his thoughts on the state of the law. The quotes I posted here are limited to factual assertions about the state of the law itself, since this is GQ.

I thought Wikileaks were using Tor hidden services and Freenet. I could be wrong though.

They also have a standard website at

America does have jurisdiction outside its borders. If a US law explicitly gives a court jurisdiction on foreign soil then the US effectively has jurisdiction. If a law isn’t explicit then jurisdiction can be established through principles of international law. One of which is that the US has jurisdiction over actions that harm the US.

This doesn’t mean that the US will exercise such jurisdiction, but our courts can prosecute foreigners for acts on foreign soil if they want. Whether we do that or not depends on how willing we are to upset another country.

Well there’s also the little matter of getting said foreigner from foreign soil to American soil.

True, but the US hasn’t even tried to extradite the wikileaks guy. And in general, I don’t think the US gov’t goes after publishers of leaked classified info (as opposed to the people whom, like Manning, did the actual leaking).

And the courts have found that there is a first amendment to publish classified info, though in that case the issue was an executive order to stop publishing rather then criminal charges.

That’s it. I’m done buying cheap-but-cleverly-designed housewares.

But that means that my Allen Wrench collection will stop growing. Hey, new one with every bookshelf or end table… I was up to 233.

you can keep growing your Allen wrench collection. The Swedes have charged him with a sex crime. Not that it is stopping him, but it might be interpreted as a warning to others.

Just adding this because I find it interesting and semi-relevant.

Even though the information has been leaked to the entire world, it is still considered Classified by the US Government. Therefore, it is still unlawful for service members or government contractors possessing a security clearance to transmit the information over unsecured networks or process the information on unsecured computers.
So, technically, I can go to jail for simply possessing the wikileaks documents on my computer or a thumb drive. Even simply downloading the information from the Wikileaks site onto a government computer with Classified Accreditation would be illegal since the network connecting Wikileaks to the computer is not a Secure Classified network.

Needless to say, I haven’t read any of it. I’ll just have to wait until some civilian I know downloads it onto their computer and lets me read it.

I know that a British nerd is facing a Kafaesque nightmare due to the previous British government’s pussified capitulation to an asymmetric extradition treaty with the US, for crimes commited from the UK on US government systems… but would the fact that a Swedish server is visible in the US actually be a crime, or even one that could trigger an extradition request? Who would you extradite - the guy whose idea it was (Australia) or the person who runs the server (Sweden)? What treaties are there between those countries and the US?