behind the news

The WikiLeaks Equation

Secrets, free speech, and the law
December 28, 2010

Call it the Year of WikiLeaks. From April 5, when the site posted a grainy video showing the death of two Reuters employees from a U.S. helicopter attack, to November 28, when mainline journalism organizations began releasing stories based on a trove of some 250,000 diplomatic cables, the secret-sharing site shaped the news cycle. It also threatened to upend America’s working assumptions about journalism and free speech.

Of course, WikiLeaks has been around for years, posting anonymously sourced documents that others would have rather been kept hidden. But it was this year that people noticed.

The helicopter video—easy for cable news to broadcast, and shocking in its graphic depiction of death—captured world attention. In June, Wired broke the news—based on a tip from the hacker who turned him in—that federal officials had arrested Bradley Manning, a young army intelligence analyst who claimed to be a WikiLeaks source. And then came three “mega leaks”—the cables most recently, but action reports and logs from the Afghanistan and Iraq wars, before that—where WikiLeaks gave journalists and analysts advance looks at the data, providing them the chance to report out stories from the documents.

The old WikiLeaks model had simply been to post the documents on their own site, perhaps with a short amount of explanatory analysis. Even when the site had truly important documents, they didn’t get the attention they perhaps deserved. Exclusivity matters to journalists, who are always picking and choosing which stories are most worth their limited time to write and report.

While the four recent high profile releases are quite different that the site’s previous fare, there’s no denying these documents got far more attention than any that were released under the previous model. (And it has clearly netted WikiLeaks more attention—some positive; some quite negative.)

But this year of WikiLeaks must be footnoted by the fact (a reasonable and well supported presumption, really) that the origin of the megaleaks, and of the video, is a single source who is now locked up, and will, no matter what happens at his trial, never get access to classified documents again. Are there people, who hold positions like Manning once did, inclined to leak massive tranches of documents? Maybe yes, maybe no.

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It there aren’t, and WikiLeaks continues to partner with news organizations by giving them advance looks at documents they receive, well, this becomes a much more vanilla enterprise—something like ProPublica with an anonymous dropbox.

Of course, there is always the potential that WikiLeaks—or OpenLeaks, or any other site that would copy or expand their model—will again get massive troves of U.S. secrets. That has led some to the conclusion that the U.S. secrecy regime must be rewritten to match this threat.

But the month since the cables began being reported on have allowed for some serious thought, and some serious deep breaths.

Despite protests from members of the Obama administration that the leaks would greatly damage national security—and even more strident cries from members of Congress, media commentators, and other political hangers-on—the full impact of the leak on America’s long term national security interests is unknown, but likely quite “modest,” according to no less an authority than Secretary of Defense Robert Gates.

“Now, I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think – I think those descriptions are fairly significantly overwrought,” Gates said. “Other nations will continue to deal with us. They will continue to work with us. We will continue to share sensitive information with one another. Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”

David Sanger, The New York Times’s chief Washington correspondent, and the author of several articles based on the leak, recently said that has heard from his sources inside government that they think having more information in the public domain on China’s cyber warriors, and on Middle Eastern governments’ true feelings toward Iran’s nuclear program—two major stories to emerge from the leak—may ultimately be salutary.

Naturally, Sanger also said that members of the foreign policy bureaucracy were worried that the publication of the material would convince foreign leaders, midlevel bureaucrats, and dissidents that the United States cannot protect their words offered in confidence.

There’s no arguing that point—the cables were never meant to be seen by unauthorized users, and, to say the least, they now have been. (Whether or not that means that some will be more circumspect in what they tell the U.S’s emissaries is another question, and if that were the case, its impact on national security yet another.)

But blaming WikilLeaks for exposing the fact that the U.S. cannot always keep its secrets seems bizarre. The leaker of the documents is the person who broke the rules, not the publisher. And while it’s the leaker who, under the tradition and precedent of U.S. law, would bear legal responsibility, it’s worth a moment’s thought as to the responsibility of the government for creating conditions under which such a massive trove of classified documents could be squired out so easily—perhaps on a burned CD marked up to look like a Lady Gaga mix.

Take a step back and assess what WikiLeaks has actually done, and how it differs from long accepted and protected aspects of traditional national security reporting. The simplest narrative is that the organization, having hung out a Leaks Welcome sign, obtained some classified material. Then they published it, or provided it to reporters who published stories based on it.

With that dispassionate rendering of events, it’s quite difficult to see significant legal differences between what WikiLeaks has done and what newspaper, television, and magazine reporters do all the time. To offer one example, think of when The New York Times published cables from the U.S. ambassador to Afghanistan, Karl Eikenberry, in January 2010. That diplomatic cable was more heavily classified than the vast majority obtained by WikiLeaks, but it followed a similar course. It was given to the Times by someone, and the Times published it with some minor redactions—just as WikiLeaks has so far done with the cables.

The United States has never convicted a journalist for publishing classified information—they’ve never even undertaken such a prosecution. Attempts to prosecute non-journalistic third parties for transmitting classified information that they received from government employees have been rare, too—the most prominent case, involving two pro-Israel lobbyists, was brought in 2005 by the Bush administration, and finally fell apart in 2009.

The case drew well-founded concerns that if the two were convicted, it would establish a court precedent that could create something akin to Britain’s Official Secrets Act, which does prohibit the dissemination—and not only the leaking—of some national security secrets. It could mean prohibiting a category of speech—reproducing classified documents, or perhaps even just describing their contents—by persons (journalists, other publishers) who have no official obligation to keep them secret.

The pitfalls of such a law are immediately clear: it would allow journalists to be prosecuted for reporting on classified matters. Large swaths of our government—the State Department, the military, the Department of Energy, the Department of Homeland Security—would immediately become a legal minefield for reporters seeking to give citizens as complete a picture as possible.

So far, the only indications that the government has been serious about its feints towards prosecuting WikiLeaks have been from Assange’s own lawyers, who have said that they expect his indictment under the Espionage Act is “imminent” and that they’ve heard word (through the Swedes, not directly from U.S. sources) that a grand jury has been empanelled to look at the case.

In mid-December, The New York Times reported that the government hoped to sidestep the sticky questions surrounding a charge based on the publication of classified information by instead focusing on Assange’s alleged interactions with Manning, in hopes that they crossed the line into something approaching conspiracy to leak documents.

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.)

Editors and journalists have always had to weigh these competing interests when deciding whether or not a classified document or other sensitive information should come to public light. There’s something uneasy about the idea that these professionals—who have no formal training—get to make this call. But it’s clear that the press has exposed vital stories—in the last decade alone, warrantless wiretapping, detainee abuse, and black-site prisons—that were classified programs.

There are certainly other stories that we don’t know, because journalists decided it was unsafe to tell them.

One of the main lines of attack against WikiLeaks is that in a handful of releases of classified information it has unnecessarily jeopardized the safety of individuals and of society.

In the Afghanistan case, while the organization agreed to withhold some documents out of safety concerns, the released documents did expose some Afghans who work with U.S. forces, and put them at risk. On the U.S. government’s own word, there’s no evidence that any came to serious harm.

WikiLeaks’s handling of the State Department cables has been markedly different. Rather than make the mass of documents available in a single bulk disclosure, WikiLeaks has instead been publishing cables drip by drip, redacting sections of some after weighing input from the newspapers who sought comment from U.S. officials. Of a 250,000-document trove, just a small fraction have been put online, many with redactions recommended, in full or in part, by the news organizations who had access to the documents and who likely went to the government for comment.

Assange spelled out his motivation for using this method in an interview with The Times of London.

“In our case nearly every single redaction [to the cables] has been done for political reasons. It’s not a moral question. It was done to prevent journalistic opportunists and the U.S. Government from trying to distract from the main game,” Assange said.

That quote suggests that Assange might not see the moral necessity of redacting the names of innocents who could come to harm from having their names exposed. Nonetheless, for now, WikiLeaks is releasing documents with more caution.

Replicating WikiLeaks is easy, and there’s nothing to say that every future iteration of something like WikiLeaks would do the same. It’s a frightening prospect.

But the idea that the solution to this potential problem lies in uprooting freedom of speech, and the status quo that has allowed the press to be a persistent, comprehensive watchdog of the national security state is frightening, too.

Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.