First Amend­ment pro­tec­tion should ex­tend to Wik­iLeaks

Austin American-Statesman - - OPINION -

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.

Ju­lian As­sange

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