Outside the Beltway

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.

Doug Mataconis · Saturday, January 1, 2011 · 9 comments

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.”

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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.

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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.