The Prosecution of Wikileaks
Just because you can leak embarrassing, classified national security information doesn't mean you should. And just because the American government may be able to prosecute someone for it doesn't mean they should, either. But in the case of the Wikileaks, prosecution - to the extent that U.S. law allows it - is warranted. Because Julian Assange isn't revealing the systematic deception of the American people by its elected officials (for example, the Pentagon Papers), exposing a concerted campaign of lawbreaking (e.g. warrantless wiretapping by the NSA) or even helping to promote transparency in government. At the end of the day, Wikileaks is shaming U.S. officials, putting allies in jeopardy, undermining American foreign policy and putting lives at risk simply because it can.
Which is why the Obama administration is right to prosecute Assange - inasmuch as the law allows it. As the Washington Post reported today, that may not be easy:
Federal authorities are investigating whether WikiLeaks founder Julian Assange violated criminal laws in the group's release of government documents, including possible charges under the Espionage Act, sources familiar with the inquiry said Monday.
Attorney General Eric H. Holder Jr. said the Justice Department and Pentagon are conducting "an active, ongoing criminal investigation.'' Others familiar with the probe said the FBI is examining everyone who came into possession of the documents, including those who gave the materials to WikiLeaks and also the organization itself. No charges are imminent, the sources said, and it is unclear whether any will be brought.
Former prosecutors cautioned that prosecutions involving leaked classified information are difficult because the Espionage Act is a 1917 statute that preceded Supreme Court cases that expanded First Amendment protections. The government also would have to persuade another country to turn over Assange, who is outside the United States.
If prosecution of leakers under the arcane Espionage Act of 1917 sounds familiar, it should. Conservative commentators and Bush administration officials alike urged the same thing after the December 2005 revelations of illegal domestic surveillance by the NSA.
But the very illegality of the warrantless wiretapping of Americans ordered by President Bush justified the whistle-blowing of former DOJ official Thomas Tamm published by the New York Times. Before Congress codified it in August 2007, the consensus of legal experts was that the Bush regime of domestic surveillance violated both the United States Constitution and the Foreign Intelligence Surveillance Act (FISA). Even President Bush, who in 2005 called the publication a shameful act" that is "helping the enemy," in his new memoir admitted "in retrospect, I probably could have avoided some of the controversy and legal setbacks by seeking legislation." Tamm and Times reporters Eric Lichtblau and James Risen exposed widespread and methodical criminality by the U.S. government. Wikileaks' alleged source BradleyManning and broker Julian Assange are doing no such thing.
Nor is Wikileaks revealing a years-long effort by the American government to deceive its own people as was the case with the Pentagon Papers. Policymaker turned whistle-blower Daniel Ellsberg showed the American people that their government systematically lied about the origins, conduct and progress of the Vietnam War. The 6 to 3 Supreme Court majority that refused to block the papers' publication in 1971 said as much. As Justice Hugo Black put it:
"In my view, far from deserving condemnation for their courageous reporting, The New York Times, The Washington Post and other newspaper should be commended for serving the purpose that the Founding Fathers saw so clearly," he said. "In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the founders hoped and trusted they would do."
It appears, as Kevin Drum and Laura Rozen have argued, that Wikileaks' revelations about the U.S. conduct of the wars in Iraq and Afghanistan as well as its diplomacy contain little that is new or genuinely surprising. But that's not to say that the declassification engine that is Wikileaks isn't doing what Justice Potter Stewart deemed "direct, immediate, and irreparable damage to our nation or its people."
Contrary to the claims of Rep. Peter King and Sarah Palin, the Australian Julian Assange is not a terrorist or a traitor. But while Daniel Ellsberg may see Assange and Manning as "kindred spirits," they are neither heroic whistle-blowers nor their press conduits providing an invaluable public service. Instead, Assange operates as a 21st century leak broker. And his disclosures don't just make the tough diplomatic tasks of dealing with Iran, safeguarding Pakistani nuclear material, containing North Korea and so much else that much more difficult. They will also be counterproductive, as Heather Hurlburt suggests in the New Republic, by "slowing the movement towards declassification and openness in national security."
In the last few years, there has been some progress toward classifying fewer documents and using the more rarefied classifications less frequently. This series of leaks will almost surely reverse that progress. A top-secret classification would have kept any of these documents off the shared network from which they were allegedly downloaded by a very junior soldier.
Meanwhile in Washington, Secretary of State Hillary Clinton and Attorney General Holder threatened prosecution over the Wikileaks affair. "This is not saber-rattling," Holder said. Anyone found to have broken American law "will be held responsible." Because Wikileaks isn't the Washingon Post or the New York Times publishing the Pentagon Papers, details of illicit domestic spying or news of potential war crimes authorized by the government of the United States. For the most part, it appears that Wikileaks is going public with U.S. secrets not because it had to, but because it could.