First Amendment protection should extend to WikiLeaks
With his prematurely white hair and Australia-tinged English, 39-year-old Julian Assange has become the face and voice of what is surely the most massive leak of U.S. classified documents in history.
His online organization, WikiLeaks, devotes itself to government and corporate whistleblowers and the documents they offer. It stands as a buffer between them and whomever had the secrets being bared, whether documents on Cayman Islands bank accounts, video showing Americans firing on civilians in Baghdad or Sarah Palin’s e-mail.
But none of that came close to the disgorgement of classified military documents. WikiLeaks served as conduit for 92,000 pages of material from a military insider to The New York Times, the Guardian of London and der Spiegel in Germany.
The three published front-page analyses and excerpts, which give on-the-ground accounts of the war in Afghanistan, its failings, its brutality and its corruption.
Assange acts as a document launderer of sorts, an intermediary between the gatherer of the documents, who faces prosecution, and news organizations, which don’t.
What about the man in the middle? His organization? Can it be prosecuted?
Assange has been staying out of the United States, just in case. But it’s probably unnecessary. The First Amendment’s free-press protection shields those who merely publish classified documents that others take.
The need for that protection should be obvious. “Only a free and unrestrained press can effectively expose deception in government,” the Supreme Court said in 1971 in the Pentagon Papers case. Prosecutors then charged the leaker, military analyst Daniel Ellsberg, but had to drop the case because of government misconduct, like breaking into Ellsberg’s psychiatrist’s office. And The New York Times was free to publish the 7,000-page internal history of the Vietnam War, revealing that president after president had lied about what the U.S. was doing in the region and the chances for success. It helped turn the tide of public opinion. The Obama administration has decried the possibility that the document dump could expose those cooperating with the U.S. to retaliation from the Taliban. WikiLeaks and the news organizations say they scrubbed the material to rid it of that risk.
No big lies have fallen out of the field reports WikiLeaks made public, although it looks like two administrations have made the war sound more winnable than it probably is.
“This material shines light on the everyday brutality and squalor of war,” Assange told der Spiegel. It “will change public opinion and it will change the opinion of people in positions of political and diplomatic influence.”
As he makes clear, WikiLeaks is more an advocacy group than news organization. Its chief aim is to make governments and corporations more transparent, and it is especially eager to unveil possible abuses of power.
But that doesn’t weaken its First Amendment protection.
“We are a publication,” Daniel Schmitt, a WikiLeaks spokesman said. However different from a newspaper, “We are a publishing organization.”
Unless the group or someone inside it solicited the documents or helped the insider obtain them, it probably has little to fear from U.S. criminal law.
Nor could WikiLeaks be forced to disclose its sources. The group located its headquarters in Sweden because it has one of the world’s strongest shield laws to protect confidential source-journalist relationships.
“We have been legally challenged in various countries,” Assange said. “We have won every challenge.”
Bank Julius Baer Co., based in Switzerland, sued because WikiLeaks posted accountholder information from its Cayman outpost amid allegations of money laundering and tax evasion. The bank filed suit in San Francisco against California-based Dynadot, WikiLeaks’ domain registrar.
The bank won a short-lived court ruling that attempted to shut WikiLeaks, which had sent no lawyer to argue. Once it did, and once freespeech groups intervened to tell the judge the First Amendment forbids such an order, the judge dissolved his earlier decision and the bank abandoned the case.
WikiLeaks says it doesn’t dig for dirt or urge others to. “We do not solicit any information,” Schmitt says. If it did, it could find itself in a conspiracy to violate the Espionage Act of 1917. That is the law that bans the release of confidential military and national security information. News organizations are exempt, but only if they don’t solicit.
Still, the organization may begin skating closer to the edge. It’s planning an educational effort for would-be leakers that will say “why leaking is a useful thing” and “how to do it properly,” Schmitt says.
And last year, the group compiled a list of the “Most Wanted” documents, based on suggestions from people around the word.
Among the entries: the East German secret police file on German Chancellor Angela Merkel and a list of political prisoners in Egypt.
For now, at least, Assange and WikiLeaks seem to be in the clear. Not so for the 22-year-old Army intelligence analyst, Pfc. Bradley Manning, suspected as a source.
Already in custody and blamed for an earlier submission to WikiLeaks, Manning is a “person of interest” in the secret Afghanistan reports, The Wall Street Journal has reported.
Assange, meanwhile, isn’t taking any chances. He canceled an appearance in Las Vegas and said at a news conference in London that he had been told he would be arrested if he came to the U.S.
No doubt authorities would like to invite him in for a chat. But jail him? Not likely.