This is a repost from an article I put together back in December of 2010. Amid accusations that Wikileaks was breaking the law and putting Americans in danger, I decided to collect as much information as I could about the issue. What follows is a collection of links and news stories that I believe answers the question, “Has anything published or released by Wikileaks directly affected the safety of anyone serving the United States?” In light of the recent news about Private Bradley Manning, I felt this was worth republishing.
One of the key issues in the WikiLeaks case, perhaps the most important one, is whether or not Julian Assange and his team of whistle-blowers have committed a crime by releasing so-called “sensitive” government documents. The leaks, which center on American foreign relations and military actions in Afghanistan and Iraq, have triggered harsh retaliation from numerous American politicians, including Secretary of State Hillary Clinton, Rep. Peter King (R- NY), Sen. Joe Lieberman (I- CT), Sen. Dianne Feinstein (D- CA), White House spokesman Robert Gibbs, Defense Secretary Robert Gates, former President Bill Clinton, and Sarah Palin. These critics propose two basic arguments:
- WikiLeaks is breaking the law by releasing secret government documents. The core of this argument depends on the Espionage Act and numerous other US Codes or acts, which are described below.
- WikiLeaks is endangering American lives by releasing sensitive information that could put American troops, spies, and other diplomats at risk. This argument rests on the assumption that the material in the WikiLeaks documents is descriptive enough to single out particular individuals in particular and “sensitive” scenarios.
These allegations have been strongly refuted, however. Numerous journalists, scholars, and legal experts have commented on the Wikileaks scandal, and virtually all of them have concluded in the same fashion.
We’ll begin with the Washington Post:
“Although the Justice Department has taken the position that media organizations could be prosecuted for printing leaked classified information under the legislation, that prospect is unlikely because of official aversion to running afoul of the First Amendment, experts said. Indeed, the Justice Department has never brought such a case, they said.
‘Whenever you’re talking about a media organization, the department is going to look very closely to ensure that any prosecution doesn’t undermine the valid First Amendment functioning of the press,’ said Kenneth Wainstein, former assistant attorney general in the national security division.”
The Justice Department knows this is a slippery slope. Arguing that Wikileaks has broken the law means classifying the organization as something other than a news outlet, like the New York Times or the Guardian. While politicians have advocated censoring WikiLeaks, the Justice Department is at least a little wiser, fearing it will run aground on First Amendment issues.
Sen. Lieberman, on the other hand, believes that organizations like the New York Times should be prosecuted for releasing sensitive documents, too, whether they’re news-worthy or not. The danger associated with enforcing that kind of censorship is obvious.
The Washington Post article continues,
But, said former federal prosecutor Baruch Weiss, that statute raises difficulties of its own. “How do you prove that a particular cable about secret negotiations with Russia was dangerous to national security? You have to disclose more classified information to explain to the jury the damage brought about by the disclosure,” he said.
Perhaps the most significant issue is the Constitution’s protection of people’s right to speak freely and to exchange ideas.
“If the government were to prosecute the person who received and disseminated the classified information – as opposed to the individual who leaked it from within the government – mainstream media would express the concern that they could face prosecution for reporting information they routinely receive from government insiders,” Wainstein said.
Fundamentally, Weiss said, the WikiLeaks case “is not about the disclosure of troop movements to al-Qaeda or giving the recipe for the plutonium bomb to North Korea. This is the widespread publication of information that is important in determining the future policy of the United States, that could be very important for people in assessing how well our government is doing its job. It’s a good example of the problems created by the First Amendment clashing with criminal law, the law protecting national defense information.”
Again, we find that the heart of the matter is a debate over whether or not WikiLeaks is a legitimate news organization. Matthew Ingram at Gigaom and Dan Gillmor from Salon have argued that WikiLeaks is a media entity and deserves the same protections available to the New York Times. If that is the case, then we might reliably say that WikiLeaks has committed no crime insofar as releasing government documents is concerned. If, however, we want to argue that Wikileaks isn’t a news organization, then we have to go through the trouble of determining why. I’ve yet to see an argument of that kind and I can’t personally imagine one. The only difference between a newspaper like the St. Louis Post-Dispatch and Wikileaks is the kind of information it has access to, but even that’s a shaky distinction to make. Their essential function is reporting, and their defining features will concern how accurately and completely they report on the information they have.
The Pentagon Papers case from 1971 is related to this very issue. Trevor Timm, from a New York Law School-associated blog, has posted an excellent article defending WikiLeaks and he uses the Pentagon Papers to explain why and how it is operating within the law. The following are excerpts from that piece:
Since August, when Wikileaks first published 91,000 classified documents relating to the Afghanistan War, and in October, when they published approximately 400,000 more relating to the War in Iraq, many conservative commentators have been clamoring for the Justice Department to prosecute Wikileaks for publishing classified information.
But in the United States, generally publishing classified informationis not a crime. The sort of information that a news organization can be prosecuted for publishing is limited to: nuclear secrets (Atomic Energy Act), the identities of covert agents (Intelligence Identities Protection Act), and certain forms of communications intelligence (Section 798 of the Espionage Act)….”
The most commonly cited statute by those who advocate prosecuting Wikileaks is Section 793(e) of the Espionage Act. In August, former Bush speechwriter Marc Theissen linked to this section in an article for the Washington Post when he wrote that Wikileaks is “a criminal enterprise” whose founder, Julian Assange, should be arrested by U.S. forces on foreign soil, international law be damned.
But this provision does not apply to those who publish information.
Section 793(e)reads “Whoever having unauthorized possession of, access to, or control over any document…relating to the national defense…willfully communicates… the same and fails to deliver it to the officer or employee of the United States entitled to receive it…[s]hall be fined under this title or imprisoned not more than ten years, or both.”
As made clear in the Pentagon Papers case, the word “communicates” was never meant “to encompass publication” or to affect the press. Congress included the word “publish” in three other sections of the Act but intentionally left it out of 793. As the legislative history of this provision states, “Nothing in this Act shall…in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States.”
Justice Douglas referenced the legislative history in his concurring opinion, when he wrote of Section 793, “it is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.”
Regardless of the specificity of Section 794, there is no proof the documents have led to any harm of U.S. soldiers. Although Chairman of the Joint Chiefs of Staff Admiral Mike Mullen said Wikileaks will have “blood on its hands,” the Pentagon later admitted, “We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the Wikileaks documents.” Admittedly, that U.S. forces haven’t be harmed by the publication of these documents yet is not guarantee against a harm yet to come. Still, it is worth noting that despite the hysteria of the conservatives, and their predictions of disaster resulting from Wikileaks’ leaks, we know of no ramifications from the publication whatsoever.
No media outlet has ever been charged under Sections 793, 794 or 798. The Bush Administration—not exactly a friend to the press—considered prosecuting the New York Times under Section 798 for its story on the NSA’s most likely illegal warrantless wiretapping program, which fits more squarely under the definition of communication intelligence. Yet even then, the Justice Department declined to do so.
Note the link to the Pentagon statement, which admits no harm has come to anyone as a result of the WikiLeaks documents. Secretary of Defense Robert Gates has actually said the same thing, even though he continues to denounce WikiLeaks. Politicians claim over and over that WikiLeaks is harming American soldiers, informants, spies, and other diplomats, but there’s simply no proof of that.
Other sources have also reported on the precautionary measures taken by Wikileaks, the New York Times, and others:
Before Sunday’s release, news organizations given access to the documents and WikiLeaks took the greatest care to date to ensure no one would be put in danger. In statements accompanying stories about the documents, several newspapers said they voluntarily withheld information and that they cooperated with the State Department and the Obama administration to ensure nothing released could endanger lives or national security.
The newspapers “established lists in common of people to protect, notably in countries ruled by dictators, controlled by criminals or at war,” according to an account by Le Monde, a French newspaper that was among the five news organizations that were given access to the documents. “All the identities of people the journalists believed would be threatened were redacted,” the newspaper said in what would be an unprecedented act of self censorship by journalists toward government documents.
“After its own redactions, The (New York) Times sent Obama administration officials the cables it planned to post and invited them to challenge publication of any information that, in the official view, would harm the national interest,” The New York Times said in a story published on its website Sunday. “After reviewing the cables, the officials — while making clear they condemn the publication of secret material — suggested additional redactions. The Times agreed to some, but not all.”
The paper said it also passed the government’s concerns to WikiLeaks “at the suggestion of the State Department.”
The newspapers said WikiLeaks had agreed to release only the documents used in preparation for articles that appeared in the five publications, which in addition to Le Monde and The New York Times included Great Britain’s Guardian, Germany’s Der Spiegel and Spain’s El Pais.
Not only is WikiLeaks practically indistinguishable from the New York Times, it is taking active measures to protect sensitive information, which could potentially affect American troops, spies, and diplomats in the field. Oddly, the Pentagon has refused to help WikiLeaks redact sensitive information, perhaps because of the embarrassment caused by the leaked documents. But, were the government actually concerned with the safety of Americans, wouldn’t they want to play a more active role in protecting them?
In a superb article written by Glenn Greenwald of Salon.com, it is revealed that WikiLeaks attempted to work with the US Government on at least one other occasion:
Schmitt, wanting to side with his Pentagon friends, publicly suggested that Assange was lying when he claimed that he offered to allow the Government to suggest redcations, even as Schmitt himself acknowledged that “Assange wrote that WikiLeaks would consider recommendations made by the International Security Assistance Force ‘on the identification of innocents for this material if it is willing to provide reviewers’,” an offer Schmitt says he conveyed to the White House. In other words, Schmitt defended the Pentagon’s denials that Assange made this offer even as he himself described the very events which proved Assange was telling the truth. At the very least, WikiLeaks clearly indicated its willingness to have government officials review the documents and make recommendations about redactions — something those officials refused to do.
But yesterday, WikiLeaks the DoD itselfreleased a letter — dated August 16 (two days before the Newsweek article) — which makes clear that WikiLeaks did exactly that which DoD officials denied they did: namely, they asked DoD for help redacting these remaining documents. That letter, written by DoD Legal Counsel Jeh Charles Johnson to WikiLeak’s counsel, Timothy Matusheski, explicitly recounts — contrary to the emphatic denials in Newsweek — that WikiLeaks’ lawyer had contacted the Pentagon and requested help in the “harm minimization” process. The DoD, however, is explicitly refusing to offer any help whatsoever…
Why the Pentagon would refuse to protect individuals they claim are in danger is still something of a mystery. Greenwald has written extensively about this topic and is probably the best journalist covering the Wikileaks story. His research shows time and time again that the leaked documents have done no harm to anyone:
The Heritage Foundation’s Conn Carroll was on BloggingheadsTV yesterday with The Atlantic‘s Conor Friedersdorf, and Carroll raised the article I wrote on Saturday regarding the Pentagon’s refusal to help WikiLeaks redact the Afghanistan war documents in order to protect Afghan sources. Carroll was beside himself that anyone could even suggest that the Pentagon ought to make recommendations for redactions — apparently, the oh-so-righteous concern for the well-being of Afghan sources evaporates in the face of the desire to delegitimize WikiLeaks…
Even the Pentagon admits that there is no evidence whatsoever to support Carroll’s factual claims. FromThe Washington Post, August 11: “‘We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents,’ [Pentagon spokesman Geoff] Morrell said.” It’s plausible to speculate that WikiLeaks’ disclosure creates some risk of future harm, but to assert that “American and Afghani people” have been killed by such disclosures is just a total fabrication.
For anyone in denial that Assange is redacting information to protect American lives, this is a necessary read.
Newsweek‘s Mark Hosenball follows up on the issues raised here in a new article today, with more evidence proving that WikiLeaks has been attempting to secure the Pentagon’s cooperation in redacting names — exactly as Assange has been explaining — while the Pentagon has been issuing multiple false denials of these facts. Shouldn’t anyone who criticized WikiLeaks for its lack of redactions also be criticizing the DoD for refusing WikiLeaks’ requests for redaction assistance (and then falsely denying it happened)?
Further evidence of the legality of WikiLeaks’ endeavor can be found here.