The State Department is demanding that Wikileaks halt the imminent release of its next batch of classified U.S. government documents. The latest batch reportedly will include thousands of State Department cables. Some are believed to be highly sensitive, others merely embarrassing — to the U.S. and to foreign governments.
In a letter emailed yesterday to WikiLeaks founder Julian Assange and his lawyer, State Department Legal Adviser Harold Koh calls for Wikileaks to return the classified documents:
If you are genuinely interested in seeking to stop the damage from your actions, you should: 1) ensure WikiLeaks ceases publishing any and all such materials; 2) ensure WikiLeaks returns any and all classified U.S. Government material in its possession; and 3) remove and destroy all records of this material from Wikileaks’ database.
The AP paraphrases the letter as stating “that publication of the documents would be illegal and demanding that they stop it.” There’s little doubt that whoever within the U.S. government had access to the documents and leaked them did so in violation of the law — but whether Wikileaks bears any criminal liability in the U.S. for their publication is an entirely different issue.
Reading the letter closely, I think Koh stops short of stating that publication of the documents would be illegal, as the AP suggests. That would get Koh into “prior restraint” territory. The closest Koh comes to saying Wikileaks has broken the law is when he accuses Wikileaks of “furthering the illegal dissemination of classified documents.” He also claims that the documents were “illegally obtained” and that so long as Wikileaks retains the documents then “the violation of the law is ongoing.” Parsing Koh carefully, his ire is directed at Wikileaks but the punch of his legal argument is aimed at the original leaker(s).
The Koh letter also reveals that Wikileaks has given the latest batch of materials in advance to the New York Times, the Guardian and Der Spiegel. That’s consistent with Wikileaks’ prior practice of leaking the leak, as it were, in advance under embargo to major news outlets.
Wikileaks is expected to post the documents online today.