By Victoria Baranetsky
In the past few months WikiLeaks has attracted substantial global attention concerning its release of thousands of confidential U.S. government documents including information about the wars in Iraq and Afghanistan. Everyone has commented on the leaks from the New York Times and the Wall Street Journal to Saturday Night Live but it was Ron Paul, Texas Congressman, who finally seemed to ask a poignant question several days ago, “[Which events caused more deaths,] lying us into war, or the release of the WikiLeaks papers?” Congressman Paul’s question also intimates the more crucial legal question; did Wikileaks strike the right balance between transparency and secrecy?
The Espionage Act of 1917, which the New York Times reported Wikileaks founder Julian Assange might be prosecuted under, in fact delves into this balancing act. The Espionage Act makes it a felony for an unauthorized person to possess or transmit “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
In essence, the crucial question under the Act is whether the felon “posses[ed] or transmit[ed]” the information or whether he simply published it, as a journalist. If he possessed it, he will be prosecuted and secrecy wins. If he simply published it, transparency will be the victor. Therefore is he a carrier or a journalist? This then begs the question that has caused much confusion in the past decade, who is a journalist?
In recent history two people have been prosecuted under the Espionage Act.
First, Daniel Ellsberg was prosecuted for possessing and stealing the Pentagon Papers during the Nixon administration. After the Supreme Court rebuked President Richard Nixon’s attempt to enjoin newspapers from publishing those papers, a federal judge threw out the Espionage Act charges because of government misconduct in trying to get information on Ellsberg.
Second, under the Reagan administration Samuel Loring Morison, a civilian intelligence analyst for the Navy, was convicted under the Espionage Act for supplying a British publication, with photos of a Russian aircraft carrier. Morison pled he was simply a journalist, but he was sentenced to two years in prison.
So the question here is whether Assange, is like Ellsberg and Morison and can be liable for leaking the information or is he merely publishing available information as a journalist? Is Wikileaks a journalistic endeavor that struck the balance between secrecy and transparency?
Supporters and critics of Wikileaks disagree on these questions. First, they disagree on the balance. Supporters of the leak call attention to the government’s ever increasing dependency on secrecy (see Peter Galison’s film), especially since the Bush Administration, and argue that it comes at the cost of an uninformed electorate. They defend Wikileaks as a valiant watchdog fighting in the name of transparency and find that the openness outweighs the danger. Critics, however, argue that secrecy is necessary for safety and therefore transparency is not categorically justified (see Prof. Noah Feldman’s article). They argue that Wikileaks failed to strike a balance because the site risked our security with countries like China (big cost) for no benefit. Unlike Daniel Ellsberg’s leak of the Pentagon Papers, Wikileaks had no message, they argue.
As to whether Assange acted as a journalist, the question often end runs into a discussion of character. What was Assange’s motivation for publication? Was it simply to gossip and garner eyeballs? Or was he motivated by valiant reasons like freedom of information, truth seeking and peace, like a Bob Woodward or Carl Bernstein of our time? Critics argue that Assange did not behave like a journalist because he was motivated by his hubris instead of his message (as can be supported by his many press releases and bravado attitude). Wikileaks, they continue, advertises itself not as a news source but only as a publishing house for smoking guns. Therefore, as Floyd Abrams, attorney who defended the New York Times in the Pentagon Papers case, stated, Assange may be prosecuted under the act because he appears to have acted with “scienter.” In other words, Assange intended to publish something controversial and hyperbolic not as journalism but as scandalous chatter.
However others seem less certain about the line between journalism and mere gossip. Supporters say that Wikileaks maps nicely onto the New York Times’ role in the Pentagon Papers situation because it simply published available information. Others even argue that, “This is kind of the shot heard round the world — this is Lexington,” said John Perry Barlow, a co-founder of the Electronic Frontier Foundation, a civil liberties organization that advocates for a freer Internet, reported the New York Times. These supporters also cite that “The courts have been somewhat reluctant to draw a line of demarcation between what we call mainstream media and everyone else,” said Washington attorney Stan Brand to the Associated Press. On a more technical note, John G. Palfrey, a Harvard Law School professor told the New York Times, “This is less about stealing than it is about copying.”
However, in a letter sent to Mr. Assange and his lawyer on November 27, 2010, State Department Legal Adviser and former Dean of Yale Law School, Harold Hongju Koh, “warned in strong terms that the documents had been obtained ‘in violation of U.S. law and without regard for the grave consequences of this action,” as reported the Wall Street Journal.
In response to former Dean Koh, Ron Paul’s question seems operative, “which events caused more deaths; lying us into war, or the release of the WikiLeaks papers?” If Wikileaks caused little danger to our security; if it revived a mood of transparency in a decade of opacity; and if we view journalists not in stereotypical terms of 1950s newspapermen – then don’t Assange’s acts seem justified. The Courts will eventually let us know.
Thank you for your Essay.
We are definitely living in interesting times ,the internet has put users in a powerful position and governments in a less powerful environment.
Long live freedom of speech .!
Ellsberg and Morison were both US citizens, Assange is not. Proving “grave harm” to enable him to be prosecuted, while he himself did not “steal” any documents whatsoever, could be a wee bit troubling under US law… unless you plan to also prosecute The Guardian, Der Spiegel, and other media outlets who basically did the same thing Assange did… to publish documents which were given to them.
If you are Private Manning, and your job requires you to analyze all the data that was in all those documents that are being released by wikileaks. Would it not be safe to conclude that at some point you would possess enough information to make a judgement as to what that data shows? And if that data indicates wrong doing on the part of your superiors and other officials. How and what are your options? On the one hand you have a contract with your employer. In this case. The American people and it’s commander in chief. “The President” On the other hand you have balance your own perception of what is right,ethical and moral. Given the nature of animal. Could it not be assumed that Mr. Manning may have concluded that wikileaks was his only option? How many of those Viet Nam veterans inhabiting our nations freeway on and off ramps with, “WILL WORK FOR FOOD” signs are there because their minds have broken because of their ordered involvement in events like the Melai Massacre had there been a wikileaks for them to turn to? As I recall. Because of that abomination our military enacted rule changes that were supposed to provide safe haven for soldiers that disobeyed orders that he or they considered illegal or morally wrong. What were his options? That contract he signed when enlisting in the military was a contract with the American PEOPLE. Not the American POLITICIANS and their corporate MASTERS. The American people and indeed the world needs Wikileaks type options.
Mr Assange is not a US citizen and did not act on US territory. Therefore US law does not apply to him. Simple as that – your precedents are not relevant here.
The question “did Wikileaks strike the right balance between transparency and secrecy?” implies the right balance did exist, while it most probably didn’t!
The really crucial question “did Wikileaks-induced balance shift from secrecy to transparency is favorable or unfavorable?”
I’m concerned in this situation that while we wait for the courts to let us know whether Wikileaks’ actions were illegal, banks and credit card companies have already begun to act as if they have been determined as such. Visa, Mastercard, Bank of America, and possibly others have stopped processing payments to Wikileaks because their actions might be illegal. The courts have not spoken on the subject, and Wikileaks or anyone associated with it has not been charged with a crime.
Without evaluating the moral or political implications of the releases, or predicting the ultimate legal result, I’m concerned about the precedent. Financial institutions should not be able to act unilaterally to block payments without an official declaration of the illegality of the actions. Otherwise, banks and credit card companies may be to use their control over customers money to limit the flow of funds to any group engaging in activities with which they disagree or who have accused, even wrongly, of illegal activity. My mind goes back to any number of situations recently in which conservatives have used accusations of illegal activity to limit the effectiveness of their opponents.
If sensationalism, exaggeration, and outright lies can be used to create an impression of illegality, and financial institutions can then act unilaterally on that impression without actual legal action, the potential for abuse is great. I hope the authorities and the courts act quickly to settle the question of the illegality of the releases, and I hope they see past the current overreaction to take a hard look at the actions of these financial companies.
1. i second @Julia Iskandar’s entry. it baffles me how the topic of trying him for breaking US law is even sustained.
2. the ron paul question is comparing apples and oranges for rhetorical effect. there’s little way to make accurate correlations between leaked cables and people’s deaths. and if there were, we’d need to wait equivalent time periods to see how it all will play out over a decade.
Is Ron Paul qualified to queston anyone?
The history of Ron Paul contain several racist remarks — including one that says order was restored to Los Angeles after the 1992 riots when blacks went “to pick up their welfare checks.”
The controversial newsletters include rants against the Israeli lobby, gays, AIDS victims and Martin Luther King Jr. — described as a “pro-Communist philanderer.”
One Ron Paul newsletter, from June 1992, right after the LA riots, says “order was only restored in L.A. when it came time for the blacks to pick up their welfare checks.”
Another says, “The criminals who terrorize our cities — in riots and on every non-riot day — are not exclusively young black males, but they largely are. As children, they are trained to hate whites, to believe that white oppression is responsible for all black ills, to ‘fight the power,’ to steal and loot as much money from the white enemy as possible.”
The quotes are numerous and well documented.
“We shouldn’t forget, though, that when it comes to secrecy, transparency, like sunlight, is only a figure of speech — one that disappears the closer you look at it.” (February 10, 2009 issue of The New York Times Magazine.)
While an interesting article and comments – I’m surprised a note hasn’t been made that many are comparing apples to trains; one box car from Washington State with apples certainly doesn’t make the train an apple.
Wikileaks peddled in known stolen goods. It was a massive dumping of private communications. It wasn’t used to expose any relevant information regarding lies of weapons of mass destruction; specific government corruption; systematic lies to the American people or Congress (unlike the Pentagon Papers). If they had only released specific information to “expose” corruption and promote “transparency”, they would have a lot more credibility and legal defense. Wikileaks did not engage in any sort of journalist enterprise to report a story or contradiction of any relevant news story. They created news by embarrassing the US and many other countries, again with known stolen information.
A company that has acknowledged it is in possession of stolen government and private banking documents – I would certainly refuse to do business with them as well, as did many institutions. Promoting and supporting illegal enterprises is in itself illegal.
Wikileaks is a pawn broker for stolen information looking for profit; aka where’s my deposits, I can’t get my money! They missed an opportunity to be effective and instead chose to be a sensationalist enterprise of no purpose than to embarrass as many as possible with their stolen data and create news … instead of reporting it.
You own a law office and a disgruntled clerk posts on-line all your personal emails and discussion regarding every judge your law office presents before: some judges are called fat, old, pain in the butt, know it all, egotistical emperor without clothes that you would not be surprised if they had ties to organized crime … whose been wronged in this scenario, or it’s just open transparency?