Wikileaks, The Pentagon Papers, And The First Amendment

The lawyer who argued The Pentagon Papers case points out how Julian Assange is not Daniel Ellsberg, and how prosecuting him could have disastrous results for press freedom in the United States.

Veteran First Amendment lawyer Floyd Abrams, who argued the Pentagon Papers case before the Supreme Court in 1971, had an interesting column this week in The Wall Street Journal arguing that the ongoing Wikileaks story is not at all like the case he was involved in 40 years ago:

In 1971, Daniel Ellsberg decided to make available to the New York Times (and then to other newspapers) 43 volumes of the Pentagon Papers, the top- secret study prepared for the Department of Defense examining how and why the United States had become embroiled in the Vietnam conflict. But he made another critical decision as well. That was to keep confidential the remaining four volumes of the study describing the diplomatic efforts of the United States to resolve the war.

Not at all coincidentally, those were the volumes that the government most feared would be disclosed. In a secret brief filed with the Supreme Court, the U.S. government described the diplomatic volumes as including information about negotiations secretly conducted on its behalf by foreign nations including Canada, Poland, Italy and Norway. Included as well, according to the government, were “derogatory comments about the perfidiousness of specific persons involved, and statements which might be offensive to nations or governments.”

The diplomatic volumes were not published, even in part, for another dozen years. Mr. Ellsberg later explained his decision to keep them secret, according to Sanford Ungar’s 1972 book “The Papers & The Papers,” by saying, “I didn’t want to get in the way of the diplomacy.”

(…)

WikiLeaks is different. It revels in the revelation of “secrets” simply because they are secret. It assaults the very notion of diplomacy that is not presented live on C-Span. It has sometimes served the public by its revelations but it also offers, at considerable potential price, a vast amount of material that discloses no abuses of power at all.

The recent release of a torrent of State Department documents is typical. Some, containing unflattering appraisals by American diplomats of foreign leaders of France, Germany, Italy, Libya and elsewhere, contain the very sort of diplomacy-destructive materials that Mr. Ellsberg withheld. Others—the revelation that Syria continued selling missiles to Hezbollah after explicitly promising America it would not do so, for example—provide a revealing glimpse of a world that few ever see. Taken as a whole, however, a leak of this elephantine magnitude, which appears to demonstrate no misconduct by the U.S., is difficult to defend 8on any basis other than WikiLeaks’ general disdain for any secrecy at all.

Mr. Ellsberg understood that some government documents should remain secret, at least for some period of time. Mr. Assange views the very notion of government secrecy as totalitarian in nature. He has referred to his site as “an uncensorable system for untraceable document leaking and analysis.”

As Abrams goes on to point out, the Wikileaks site is really nothing more than a huge receptical for documents that it has obtained, either legally or surreptiously, which purport to uncover the “secrets” that Assange and his disciples believe should not exist. They offer no analysis of the information, they don’t try to place the information in any kind of historical or contemporary context, and they make little to no effort to hide indentifying information that could cause harm to others. For those reasons it’s hard to equate them with what we traditionally know as journalism.  Additionally, as UCLA”s Mark Kleiman pointed out back in November, the “all information wants to be free” ethic that the Wikileaks crew champions could be both dangerous and wrong:

The notion that governments should have no secrets sounds attractive until you run the game back one step: if there can’t be any secrets, then you can’t write down anything you don’t want to see on the front page of the New York Times. That’s a sure formula for making executive-branch deliberations as content-free as Congressional debates.

The choice is not between a world with secrets and a world in which all the citizens know whatever the government knows. The choice is between a world in which officials can share information and carry out reasoned debates with one another and a world in which nothing can be written down. Really, that’s a not a hard choice.

On the legal side, however, Abrams points out that the only way the Federal Government can maintain a case against Assange individually or Wikileaks as an organization is by means of a legal argument that has dangers of its own:

The Justice Department is well aware that if it can prove that Mr. Assange induced someone in the government to provide him with genuinely secret information, it might be able to obtain an indictment under the Espionage Act based upon that sort of conspiratorial behavior. But the government might not succeed if it can indict based only upon a section of the Espionage Act relating to unauthorized communication or retention of documents.

Section 793 of the Espionage Act was adopted in 1917 before the Supreme Court had ever declared an act of Congress unconstitutional under the First Amendment. The statute has been well-described by former Supreme Court Justice John Marshall Harlan as “singularly oblique.” Its language is sweepingly overbroad, allowing prosecution of anyone who “willfully” retains or communicates information “relating to the national defense” he or she is not “authorized” to have with the knowledge that it “could” damage the United States or give “advantage” to a foreign nation.

On the face of the statute, it could not only permit the indictment of Mr. Assange but of journalists who actually report about or analyze diplomatic or defense topics. To this date, no journalist has ever been indicted under these provisions.

(…)

Mr. Assange is no boon to American journalists. His activities have already doomed proposed federal shield-law legislation protecting journalists’ use of confidential sources in the just-adjourned Congress. An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense. If he is not charged or is acquitted of whatever charges may be made, that may well lead to the adoption of new and dangerously restrictive legislation. In more than one way, Mr. Assange may yet have much to answer for.

Given his record as the nations pre-eminent First Amendment attorney, we would do well to heed Abrams’ words and to recognize that, although there is nothing admirable about what Assange and his ilk do for a living., the consequences of trying to bend the law to prosecute him may be far too great to be worthwhile.

FILED UNDER: Intelligence, National Security, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Tlaloc says:

    “For those reasons it’s hard to equate them with what we traditionally know as journalism.”

    given the state of modern “jounalism” I think that comparison heavily favors wikileaks. And with all due respect to Mark Kleiman, any executive since Nixon should damn well know that such discussions may very well come to light.

    The world might be a lot better if we had a lot less BS about how we’re all one big happy family and more honesty about what’s really going on. More to the point when our government engaged in illegal activities, violating its own laws and international law, it forfeited *any* right to secrecy until such time as we citizens can be confident it has stopped such activity. It’s grounded. We’re the parents and we’re going to search under the bed to see what the kids have stashed there. If the kids don’t like it they shouldn’t have screwed up so as to lose our trust.

  2. Simon says:

    Couple of quick comments:

    “and they make little to no effort to hide indentifying information that could cause harm to others”

    There’s actually some evidence that Wikileaks tried to work with the US Gov to redact names from the documents, but was rejected, and neither side could come to an agreement. Wikileaks claims it tried to get the documents redacted, and the US gov has both denied AND confirmed that some talks did take place through an intermediary. What the actual situation was is unclear, but I think it’s unfair to say they made “little to no effort.”

    “Taken as a whole, however, a leak of this elephantine magnitude, which appears to demonstrate no misconduct by the U.S…”

    I’m pretty sure if the US press found out about ANY other nation doing this, we’d be labeling it as misconduct.
    http://www.guardian.co.uk/world/2010/nov/28/us-embassy-cables-spying-un

  3. Eric Florack says:

    Arguments about what constitutes “journalism” aside for the moment…

    Does anyone remember Valarie Plame?

    Of course you do. You will recall the left was having kittens over the mere suggestion that someone might have leaked her name to the press. There were calls for life imprisonment, etc., from the usual suspects.

    Yet these same people treat Julian Assange, who leaked thousands of such names and a great deal more like a conquering hero, and pay large sums to keep him out of jail.

    Seems to me somewhere in there is the explanation for the inconsistency in position between Else\erg and Assange. Hmmm?

  4. michael reynolds says:

    Eric:

    Sorry to blow up your straw man, but I disapprove of both.

    Whether we can or should prosecute Assange is an open question, but that doesn’t change the fact that he’s an insufferable human being, a smug, self-serving, air-headed, egomaniacal little c**t.

    Which description also matches the perpetrator in the Plame affair, a certain vice president who in addition to being all those things is also a war criminal who evidently ordered Americans to commit torture.

    If you like, I’ll compromise with you: let’s send them both to prison.

  5. steve says:

    “Does anyone remember Valarie Plame?”

    High level government official leaks CIA agent name for political purposes = public names being released by a nobody for unclear reasons? Shouldn’t we expect more responsible behavior from our senior govt than a foreigner?

    Germaine to the recent posts on the Constitution and its plain meaning, Wikileaks just needs to declare it is part of the press.

    Steve

  6. Dave Schuler says:

    The Wikileaks folks aren’t journalists, they’re activists. It is possible to be one, the other, or both. IMO journalists should eschew activism but that’s been a distinctly minority osition for the last several decades.

  7. Clovis says:

    “Which description also matches the perpetrator in the Plame affair, a certain vice president who in addition to being all those things is also a war criminal who evidently ordered Americans to commit torture.”

    Had no idea Dick Armitage was VP, a war criminal and a “smug, self-serving, air-headed, egomaniacal little c**t.”

    Well, self-serving, air-headed and c**t, perhaps; but do not recall anyone calling him smug, nor particularly “little.”

  8. Eric Florack says:

    Shouldn’t we expect more responsible behavior from our senior govt than a foreigner?

    This would seem to assume guilt, where none has ever been proven.

    Whether we can or should prosecute Assange is an open question, but that doesn’t change the fact that he’s an insufferable human being, a smug, self-serving, air-headed, egomaniacal little c**t.

    No argument here. But apparently the great Rotundo Moore disagrees, for example.
    (snicker)

  9. Ben Wolf says:

    Michael,

    You are aware that it is not against the law for someone who does not work for the U.S. Government to publish classified information, aren’t you? It would be difficult to send Assange to prison when he hasn’t committed a crime, though with this government, such niceties as guilt and conviction seem to be of diminishing significance.