Criminal Prohibitions on the Publication of Classified Defense Information
"The recent online publication of classified defense documents by the organization Wikileaks and
subsequent reporting by the New York Times and other news media have focused attention on
whether such publication violates U.S. criminal law. The Attorney General has reportedly stated
that the Justice Department and Department of Defense are investigating the circumstances to
determine whether any prosecutions will be undertaken in connection with the disclosure.

The report identifies some criminal statutes that may apply, but notes that these have been used
almost exclusively to prosecute individuals with access to classified information (and a
corresponding obligation to protect it) who make it available to foreign agents, or to foreign
agents who obtain classified information unlawfully while present in the United States. Leaks of
classified information to the press have only rarely been punished as crimes, and we are aware of
no case in which a publisher of information obtained through unauthorized disclosure by a
government employee has been prosecuted for publishing it. There may be First Amendment
implications that would make such a prosecution difficult, not to mention political ramifications
based on concerns about government censorship. To the extent that the investigation implicates
any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may
carry foreign policy implications related to the exercise of extraterritorial jurisdiction..."