A CRS Report on Lawfare=WikiLeaks

[I]t seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate the types of documents at issue, as long as the intent element can be satisfied and potential damage to national security can be demonstrated. There is some authority, however, for interpreting 18 U.S.C. § 793, which prohibits the communication, transmission, or delivery of protected information to anyone not entitled to possess it, to exclude the “publication” of material by the media.  Publication is not expressly proscribed in 18 U.S.C. § 794(a), either, although it is possible that publishing covered information in the media could be construed as an “indirect” transmission of such information to a foreign party, as long as the intent that the information reach said party can be demonstrated. The death penalty is available under that subsection if the offense results in the identification and subsequent death of “an individual acting as an agent of the United States,” or the disclosure of information relating to certain other broadly defined defense matters. The word “publishes” does appear in 18 U.S.C. § 794(b), which applies to wartime disclosures of information related to the “public defense” that “might be useful to the enemy” and is in fact intended to be communicated to the enemy. The types of information covered seem to be limited to military plans and information about fortifications and the like, which may exclude data related to purely historical matters. Moreover, the statutes described in the previous section 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.