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Editor’s Note: The rumblings in Washington about prosecuting WikiLeaks for posting thousands of documents about the war in Afghanistan may just be a U.S. government bluff, but it’s extraordinary nonetheless that the idea is even being bandied about.

The suggestion that a journalistic entity can’t publish documents that it receives from a government insider has a troubling totalitarian ring, a concern that the Independent Institute’s Ivan Eland addresses in this guest essay:

The U.S. Justice Department is apparently considering prosecuting Julian Assange, the founder of WikiLeaks, which is a Web site that publishes classified documents from governments, under the rarely used Espionage Act of 1917.

Such a prosecution would have adverse effects on the American people’s right to know what their government is doing in a republic that is supposed to be run by them.

Ironically, the U.S. government may have leaked the threat of prosecution to coerce Assange into giving back 76,000 classified documents on the war in Afghanistan and deleting them from his Web site, which the Pentagon has demanded.

More important, this threat may be meant to intimidate Assange from making public another 15,000 documents that he says will be even juicier than the previous release.

The Espionage Act, originally passed during World War I, was designed to prosecute spies from foreign powers. Yet Assange, who is Australian and spends most of his time in Belgium, Iceland, and Sweden, is hardly a foreign spy.

While spies operate in the shadows and try to help foreign governments against the United States, Assange gets documents employees of various governments willingly give him and publishes them widely so citizens can see what their governments are up to.

The threatened prosecution may be just a bluff, because the Justice Department recently was forced to drop a similar case against two American pro-Israel lobbyists for taking documents from Larry Franklin, a Department of Defense employee who was successfully prosecuted for violating his secrecy oath.

It is probably kosher, although somewhat hypocritical, for the government to prosecute government employees, such as Franklin and Pfc. Bradley Manning, a U.S. intelligence analyst who allegedly leaked a video of U.S. helicopter gunships killing a Reuters journalist in Iraq and who is suspected of leaking the treasure trove of documents from Afghanistan.

The hypocrisy comes in because the Justice Department leaked the threat of prosecuting Assange, intentions that are usually kept secret, and high-level government officials regularly leak highly classified information to further their own policy agendas during bureaucratic turf battles.

However, prosecuting people who just publicize leaks threatens all journalists who regularly publish stories using leaks from government officials.

Such journalistic stories are valuable and necessary, because much hush-hush information is over-classified, is kept under wraps only because it is embarrassing to the U.S. government, or is classified to keep the public in the dark about questionable government policies or actions.

During the Cold War and continuing to this day, the American public is often the last to know information that is common knowledge among intelligence agencies of adversarial nations. Excessive government secrecy is a serious and underrated problem in a republic and has been exacerbated by the spike in clandestine government actions in the Bush-Obama war on terror.

If the government of a republic is going to keep secrets from its own people for their own good (faith is required here), they should keep the restricted information to the minimum.

If the government drastically reduced its vast storehouse of secrets to what was truly needed to protect intelligence agents and troops in the field, whistleblowers such as Manning would have much less reason to leak and would likely have more respect for the necessity not to disclose the remaining vital information.

Most important, if a republican government cannot keep its secrets secret, it should not prosecute third-party, non-governmental recipients of the material, but should concentrate on plugging the leaks in its security system.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland has spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. His books include The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

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