Conspiracy charges are often nebulous affairs, but again, as Josh Gerstein, a Politico reporter who specializes in legal and transparency issues, pointed out, it’s not so clear that kind of charge wouldn’t also be able to capture traditional national security reporting. While there have been suspicions that WikiLeaks’s interactions with their alleged source crossed some line that would make them less a passive recipient of his information and more of a collaborator in spiriting out the information, there’s been nothing extraordinary publicly offered. Manning reportedly claimed that Assange had created a special way for him to leak documents, so they wouldn’t be swamped by other submitters to WikiLeaks. If that’s the stiffest kind of cooperation prosecutors find, how legally different would that be from a reporter giving a source their home phone number, or coordinating two free signup e-mail accounts?
Either one of these kinds of prosecutions could have a serious impact on long standing precepts in journalism law. But the presence of WikiLeaks seems likely to shape the law in other ways. The Free Flow of Information Act, the formal name for the federal reporters’ shield law, was closer than ever to passage before the year of WikiLeaks began. The law would have given reporters some protection against being forced to divulge the identity of confidential sources, or information obtained from them, in federal court.
The Obama administration had, after some revisions, agreed to support it, and the House had overwhelmingly passed a version. All that remained was Senate floor passage. A lead lobbyist for the bill told CJR in August that he believed there were “close to seventy” votes in favor of the bill. Even with that filibuster-proof majority, he nonetheless expected that they’d have to face a drawn out cloture process, even if Senate leadership was willing to call a vote on the bill. How many of those votes have evaporated in the climate brought on by WikiLeaks, and how eager was anyone to have that fight?
There’s no indication that the law will be passed by this Senate in its waning days. The Radio Television and News Directors’ Association, a major trade group that supported the bill, recently cast doubt on the bill’s chances in the next Congress, pointing to the decreased Democratic Senate majority, the November losses of several bill supporting legislators, and the control of the relevant House committee passing to an anti-bill Republican.
That’s to say nothing of the introduction of legislation by Senators Lieberman and Kyl to modify the Espionage Act to make publication of classified information a crime, or other similar efforts.
It seems that virtually every government official who has ever had to grapple with the government’s classification system—from front-line grunts to cabinet secretaries to archivists and presidents—has concluded that the system is irrational, that information that would be harmless—or even beneficial—if made public or shared more widely is improperly classified. Beyond dysfunction, classification can be abused to hide waste, wrongdoing, poor decision making, or flat illegality.
The classification system has been established by our democratically elected officials to obscure the hand of the state. Sometimes it rightly keeps us safe, and sometimes it wrongly keeps us in the dark.
The hard part is knowing when classification stampings are not only sincere and well-founded, but outweigh other concerns about a democratic society’s right to be informed about the operations of its government.
Given the current state of affairs, one can and should question the efficacy of the checks and balances that have been constructed to ensure that classification serves the public foremost. The fact remains that such mechanisms exist and do from time to time allow greater public access where that should be the case.
But the fundamental problem is that the government cannot be trusted to make these decisions for themselves. (The classification system itself, full of anodyne or merely embarrassing documents, is the best example of this fact.)