I am a great fan of Wikileaks. I think they are playing an extremely valuable role in “promoting the climate of transparency and accountability necessary for an authentically liberal democracy” *. As Clay Shirky puts it,
Citizens of a functioning democracy must be able to know what the state is saying and doing in our name, to engage in what Pierre Rosanvallon calls “counter-democracy”*, the democracy of citizens distrusting rather than legitimizing the actions of the state. Wikileaks plainly improves those abilities.
Still, I see the concerns of those who are worried that ongoing leaks from the US embassy cables will affect diplomacy adversely, push things further under the carpet, hurt the interests of the US and other nations, maybe even increase the chance of war. These concerns are legitimate and I will not try to go into a detailed explanation here as to why I think they are overwrought. Suffice it to say that I believe that the status quo is so much to the side of government secrecy these days that that, not too much transparency, is by far the greater danger.
So this post will not defend the thesis that Wikileaks is good and Julian Assange is a hero. That is a thesis both true and worth defending, but not what I wish to write about today. This post will be much more personal. It will be about darkness and disillusionment. It will be about the reaction to Wikileaks, and what it forebodes for freedom in the US.
Consider for a moment, what has been the reaction to Wikileaks from prominent US politicians and much of the mainstream American media.
(*) That Assange should be treated as a “traitor” and murdered with no due process has been strongly suggested by Marc Thiessen, Seth Lipsky (with Jeffrey Goldberg posting Lipsky’s column and also illiterately accusing Assange of “treason”), Jonah Goldberg, Rep. Pete King, and The Wall Street Journal.
Not all of the bullies were content with merely making statements. Joe Lieberman, chairman of the Senate’s committee on homeland security, contacted Amazon and pressured the company into cutting off Wikileaks from hosting its files on its cloud server. He did the same with Tableau, a small software company that was merely hosting some charts summarizing the material released by WikiLeaks , such as the charts counting the documents which originated from each country, the number of documents by year, etc. none of which is classified.
There is also strong evidence that the US government has itself been involved in compelling private companies, such as Paypal and Visa, to cut off Wikileaks’ fund sources. Moreover there has been absurd and sad attempts at censorship of American college students. A State Department official warned students at Columbia University’s School of International and Public Affairs that anyone who will be applying for jobs in the federal government could jeopardize their prospects by posting links to WikiLeaks online, or even by discussing the leaked documents on social networking sites (!)
And while I think it is irresponsible to make any definite conclusions about the legitimacy of the rape charges for which Assange is wanted in Sweden, going by the fact that the handling of the case has been highly irregular, I will not be too surprised if it turns out that the charges are essentially bogus and the prosecution is acting under pressure from the US so that they can hold on to him till the US formally submits an extradition request.
Note that neither Assange nor Wikileaks has ever been held directly or indirectly responsible for even a single death by their disclosures, and Robert Gates, the US defence secretary himself admitted that while some of the cable leaks were embarrassing or awkward, the consequences for US foreign policy would be “fairly modest”. All of this makes the extra-legal pursuits by the authorities, the dictating of terms to private companies and the equating of an information disseminator like Assange with actual violent terrorists extremely shocking. I think Shirky is right on the money here:
When authorities can’t get what they want by working within the law, the right answer is not to work outside the law. The right answer is that they can’t get what they want.
The Unites States is — or should be — subject to the rule of law, which makes the extra-judicial pursuit of Wikileaks especially nauseating. (Calls for Julian’s assassination are even more nauseating.)
But yet, strangely enough, it is not the extra-legal methods and the skirting of due process that disturb me the most about the whole affair. It is the fact that if the American authorities ever manage to get Assange extradited and then succesfully prosecute him (neither will be easy) for these disclosures, it will mean the end of the First Amendment as we know it.
Reports suggest that such action is being considered at the highest level. Eric Holder confirmed a couple of weeks ago that there is “an active, ongoing, criminal investigation” about Wikileaks. More recently, there have been reports that the Obama DOJ has convened a Grand Jury to consider bringing charges against WikiLeaks and Julian Assange. If this is correct, it would be a greater assault on press freedom than anything attempted by the much reviled Bush, indeed perhaps the greatest assault on press freedom in the last fifty years.
At this point, it is necessary to clear a few things.
1. For the purpose of American law, Wikileaks most definitely qualifies as a member of the press. Note that Wikileaks does not solicit newsleaks directly and they do not contact potential leakers. If the leaks come to them voluntarily, they simply take steps to protect the identity of the source, and eventually, if deemed newsworthy, the leaks are published on their site, along with commentary and explanations. If Wikileaks did not exist, the leakers would go to traditional newspapers, such as the New York Times. As far as this case is concerned, there is no intellectually coherent way to distinguish between Wikileaks and other members of the press that have also published the same leaked cables (NY Times, Guardian, Der Spiegel…), often before Wikileaks has.
2. Some have suggested that Wikileaks could be prosecuted for possession and distribution of stolen property. It seems ridiculous to have to point out something so elementary, but information isn’t and has never been “property”. A property exists in physical form and has a unique copy. In this case, the computer files were not stolen, but copied. If someone takes a book and makes unauthorised copies of it, he is not charged with violating property laws. He is charged with violating copyright laws, a very different beast. And there are no copyright issues involved in distributing embassy cables, because according to American law, any work “prepared by an officer or employee of the U.S. Government as part of that person’s official duties” is not entitled to copyright protection. Yes, the person who actually leaked the cables can still be charged with high-level breach of contract, but Assange is not the leaker, and there is no evidence he or anyone at Wikileaks helped the leaker with the unauthorized copying.
3. Some have suggested that all these laws and protections don’t apply to Assange because he is not an American citizen. Apart from the gross immorality of such a stance and the terrible consequences it would lead to if actually implemented across the board, it is also factually untrue: once the US takes jurisdiction of someone, any prosecution must be in accordance to the law and the defendant, whether US citizen or not, typically enjoys all the constitutional protections (with a few exceptions that are not relevant in this context).
4. Some have suggested invoking privacy laws to go after Wikileaks. But privacy laws are very specific; they apply only to sensitive personal details (medical records, private letters) of private individuals and not to public figures in their official government correspondence.
But there is one law that Assange on a literal reading seems to have broken, and that is the Espionage Act of 1917, passed during the First World War. The language of the Act is breathtakingly broad: it makes it a felony for any person “having unauthorized access to…any document…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, willfully…[to] cause to be communicated delivered, or transmitted [any document]…to any person not entitled to receive it.” So on a literal reading, this Act would apply to the actual leaker as well as Wikileaks and the various newspapers that republished it, and even your next door neighbour who puts a link to Wikileaks on his Facebook profile. As American University law professor Stephen Vladeck told ABC News , “one of the flaws of the Espionage Act is that it draws no distinction between the leaker or the spy and the recipient of the information, no matter how far downstream the recipient is.”
There is just one problem. The Espionage Act has never been successfully used to prosecute a media organization. It is generally believed that such a prosecution would fail because of the First Amendment, which protects freedom of speech.
There is little doubt that the First Amendment applies in this case. Wikileaks is certainly a member of the press; besides, as the Supreme Court once noted, “Freedom of the press is a ‘fundamental personal right’ which is not confined to newspapers and periodicals.” Indeed, the freedom belongs to everyone from “the lonely pamphleteer who uses carbon paper or a mimeograph . . . [to] the large metropolitan publisher.”
Let me repeat that for emphasis. Wikileaks and its leaked cables is exactly the sort of thing that the First Amendment protects. Free speech gives Wikileaks, and other members of the press, the right to disseminate any information provided by a source, regardless of whether the said source obtained this information legally or illegally, so long as the material is not libelous (and even this would only invite a civil penalty) or incite imminent lawless action (which is a very high standard to meet and is certainly not the case here).
The closest parallel to Wikileaks was the Pentagon Papers case. There, the federal government took the New York Times to court under the Espionage Act because it was about to publish classified documents relating to the Vietnam war. The government lost that case. The New York Times went ahead and published the truth about the Vietnam war in what was a watershed moment in American history.
Dan Ellsberg, the whistleblower behind the NY Times Pentagon Papers leaks, is a fan of WikiLeaks in particular and whistleblowers in general. He argues that WikiLeaks founder Julian Assange “is serving our democracy and serving our rule of law… I’ve sort of been waiting for somebody to do this for forty years.”
Based on the Pentagon Papers precedent, it may seem obvious that Wikileaks is in no real danger of prosecution. But there is a small problem. In the Pentagon papers case, the government wanted the Supreme Court to issue a prior restraint injunction barring the publishing of the documents by the NY Times and other newspapers. The Supreme Court declined to do so on First Amendment grounds. But what if the government had gone to court again after the fact and sought to punish the newspapers for breaking the law? How would the judges have ruled then? It is unclear.
What is clear is this. In the unlikely event that the government succeeds in convicting Assange under the Espionage Act, it will set a tremendous precedent. It will mean that the Court will for the first time have ruled that when applied to the press, secrecy and national defence interests protected by the Espionage Act trump the First Amendment when the two are in clash. Previously only actual spies and leakers were under the ambit of this Act. Now everyone, in particular all journalists, bloggers and whistleblowers, will be. Since there is no limit to what governments can classify, it will have a breathtaking effect on the future of investigative and political journalism. As I have already made clear, there is no intellectually coherent way to distinguish between Wikileaks and traditional newspapers. They will all be at risk from future prosecution. During the Bush administration, there were in fact several explicit threats to prosecute members of the press for reporting things the government wanted kept secret. The Bush administration never went ahead and did so because they thought such a prosecution could not succeed. If the Obama administration succeeds in this case, nothing will stop them, or future governments, from using their new found power to censor free speech whenever they want to. Without the First Amendment as an effective bulwark against government overreach, it will be easy for the government, especially in times of war or fear thereof, to haul up dissenters and silence journalists. In fact the Espionage Act, as written, does not even require that information need be classified for its disclosure to be actionable.
Even the newspapers, previously detached or pro-prosecution, have started realising the grave danger. The Washington Times‘ reporter Eli Lake wrote: ”I oppose the application of the espionage statute to Assange because the same kind of prosecution would make me a criminal too.” The New York Times‘ Eric Lichtblau and The Washington Post‘s Dana Priest warned that prosecuting WikiLeaks would endanger investigative journalism generally. The Washington Post Editorial Page came out in opposition to prosecuting WikiLeaks on Sunday, recognizing that “the government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets” and that “doing so would criminalize the exchange of information and put at risk responsible media organizations.”
But I have not yet really explained why I am so bothered by all this. I am not an American citizen; nothing binds me to that land. And if one takes the universal moral standpoint — why, yes it is immoral and rights-violating to persecute Wikileaks for its exercise of free speech — but there are far worse violations of rights happening around the world on most days. It may seem almost silly that I find the Wikileaks episode so disturbing and am less affected by the various attacks on individual liberty by the government of my home country, India.
Now, I despise collectivism. I am an Indian citizen who has lived in the US, but I owe allegiance to no country, and never will. But here’s the thing; as a principled libertarian, I don’t get to see our cherished principles in action very much. Even the US is not really particularly libertarian, it is better than most, but worse than many, especially on social issues. And the US foreign policy over the last sixty years has been as unlibertarian and violative of rights as one can possibly get.
But on the single issue of freedom of the press, the US has for the most part, been outstanding. And there is really one reason for that. It is the First Amendment.
Laws — and the rights granted therein — are the engines that sustain modern liberal democracies. And of all laws, there is none as special as the First Amendment. Of the innumerable fundamental rights enshrined in the constitutions of various countries, the First Amendment is the most amazing, the most successful, the most astonishing. It is, to me, the jewel of the entire legal compendium.
The greatness of the First Amendment lies in its absoluteness. Other countries that had incorporated weaker versions of free speech protection, — i.e. with caveats — were ultimately left with no real free speech at all. As I have often pointed out, it is only speech that offends that requires government protection. Recent events in Canada and Europe have amply displayed the chilling effects of hate-crimes legislation.
In the US one can insult entire groups and not be charged with hate speech. One can write books on how to commit suicide or pamphlets about how to be an effective anarchist and generally have no fear that the government will ban them. One can criticize the government or make parodies of well-known figures without fear of legal trouble. One can burn the American Flag if one chooses, even though most people think it should be illegal to do so, and not worry about ending up in jail.
Yes the First Amendment, or rather the version as currently applied after numerous interpretations by the courts — is not perfect. For instance, courts have ruled that obscene material — usually extreme pornography — that have no other social value do not enjoy First Amendment protection and can be banned. I think that is a huge blemish on the First Amendment. The First also, sadly, does not fully protect certain sorts of commercial speech. But we do not live in a libertopia, and these are some of the few rare blemishes. Overall, the free speech rights in the US exceed that of any country I know of and comes pretty close to being perfect. There are some other restrictions on free speech that the First Amendment does not protect, such as libel, or words that lead to imminent lawless action, but I think those restrictions are more or less justified.
Ah, free speech. It’s such a radical concept, if you think about it historically. And the fact that the founders of the US put in this clause in the constitution, without caveats or modifiers, over 200 years ago, is nothing short of astounding. There have been many proposed US laws that have been — rightly — ruled unconstitutional because they violated the First. It is almost a miracle to see a sentence make so much difference, often working against heavy popular opinion.
As a NY Times commenter once put it, the point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting. The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible. Without such protections, core values of our civil society are at risk.
It is the rigorous application of the First Amendment that has, more than anything else, preserved these core values in America. And of all the forms of speech, none is as valuable as political speech, and by extension political reporting. It is this form of speech that governments and tyrants will seek to clamp upon, often in the guise of the national interest. It is important to be extremely vigilant against any attempt at doing so. Ben Franklin once wrote “Where liberty dwells, there is my country.” If the First gets distorted beyond recognition, as a successful Wikileaks prosecution will undoubtedly do, that country will not be the US.
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