Why Wikileaks isn’t just a test case for freedom of speech, but for protection from the largess of government.
The world is mired in the sensational trial to extradite Wikileaks’ founder Julian Assange to Sweden; to face questioning over potential rape and sexual misconduct charges. But even now, his lawyers are preparing for an almost omnipotent threat. The fear is that Sweden could be used as a political stepping-stone for what his lawyer calls the ‘end game’; an Espionage Act trial in the United States which could carry the death penalty. Precedent is on Assange’s side; but the case is by no means open-and-shut.
The case for and against Wikileaks, will be almost certainly built around the first case, since the Civil War, in which the US government sought to prevent the publishing of classified information in the United States. In New York Times Co v United States Richard Nixon attempted to prevent the New York Times from releasing the highly classified Vietnam War ‘encyclopaedia’; the Pentagon Papers. Leaked to the newspaper in 1971 by Assange’s idol, Daniel Ellsberg, they were a complete secret history of the war including atrocities, illegal bombing campaigns and deliberate public deception. Defence Secretary Robert MacNamara ordered the creation of the 4,000 page document toward the end of the Johnson administration and, even though he claimed it was to be a reference for future historians, he kept the Papers secret from the President and classified it ‘Top Secret’.
The facts of Times v US were largely undisputed by both sides and serve as a remarkable mirror of the facts acknowledged by Wikileaks and the current US government. Both cases have at their heart a government, a document, a leaker, a publisher and a war. Both governments (Nixon and Obama), accuse both publishers (the Times and Wikileaks), of publishing secret documents (the Pentagon Papers and the War Diaries/Diplomatic Cables), leaked to them by government employees (Daniel Ellsberg and Bradley Manning), which relate to national defence, particularly in relation to ongoing wars (Vietnam and Afghanistan/Iraq).
While Ellsberg was, and Manning will be, tried separately for their role in disclosing the documents in the first place, the prosecution’s case against the publishers rely on one particular subsection of the near-century old Espionage Act (1917). Section 793(e), in almost unprintable legalese, in essence makes it a crime for:
“Whoever having unauthorised … access to … a 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 communicates, delivers, [or] transmits… the same to any person not entitled to receive it.”
At issue in Times v US, as it is now, is whether this Act applies to the case at hand, whether it applies to publishers in general, and whether the law is even constitutional in relation to the First Amendment protection of freedom of speech.
The mention of the different entities (leaker and publisher), and their matching roles, is an important one because even high profile commentators have made basic errors when comparing the current situation to Times v US. Even The Economist got it wrong when an article appeared in an edition in October last year titled ‘Wikileaks: This time is different’. There, the author attempted to hold Wikileaks, and particularly Assange, to the standard of Ellsberg.
First, the accusations are less than earth shattering. They raise complaints that ‘Ellsberg turned himself in’ while ‘Wikileaks distributes its servers to take advantage of whistleblower laws’, that ‘Mr Assange seems unwilling to reflect on the risks of what he is doing’ and that ‘[a]fter the release of the Pentagon Papers, Mr Ellsberg lost many friends and had to start a new life’. The distinctions are mostly arbitrary, especially in a legal sense, but it demonstrates the fundamental mistake often made when the two situations are compared.
Secondly, this has led to a failure to grasp even the basic legal distinction between leaker and publisher. In the first story the whistleblower is Ellsberg (who narrowly escaped thirty years in jail on a technicality) and the publisher is the New York Times (which is found not guilty in the Supreme Court). However, the whistleblower (the Daniel Ellsberg) of the second story is absolutely not Julian Assange. The man who is actually facing similar charges of releasing classified information and decades in jail is Private Bradley Manning, who has boasted of being the source for both the War Diaries and the Diplomatic Cables.
The original context of the Espionage Act is strange when considering its use in the case against Wikileaks and the Times. When it passed in 1917, the United States had just tentatively entered into the First World War. Most of the major convictions under the Act (that didn’t apply to actual spies) centre on speech that directly supports American enemies and undermines the war effort at home. The landmark case Schenck v United States, for example, features the successful conviction of an anti-draft pamphleteer who used mailouts to try to to sway the opinion of would-be conscripts. Other cases succeeded in banning plays harming the reputation of key allies and many socialist pamphlets opposed to the government’s war time activities. President Woodrow Wilson intended the law to help win a World War by keeping unity at home. But thanks to the ambiguity and catch-all nature of the law, subsequent American governments have attempted to use the law in the much broader field of ‘espionage’, which is why publishing glorified government status updates could land Wikileaks in front of the Supreme Court.Assange and Wikileaks acquire the role of the Times because they are merely the recipients and publishers of this information and are therefore entitled to the legal protections of the free press against government largesse. It also means that Manning and Wikileaks face radically different charges under the Espionage Act. With, Wikileaks lawyers having a much easier job.
In Times v US the big differences between anti-government agitators in the middle of a world war and a publisher compelled to expose documents listing conscious government deceit became apparent. For a start, the nature of the publications is radically different. While the agitators attempted to undermine the war effort with conjecture and malicious opinion, Ellsberg and the Times have more of a classic whistleblower dynamic. They released documents to the public written in the government’s hand which exposed wrongful and deceitful behaviour by officials dealing with the Vietnam War.
Had the organisation been a corporation or an NGO, instead of the government, Ellsberg in particular would’ve been automatically protected by a number of powerful statutes. But the sad reality of a self-interested state, meant that the White House was well within its powers to convict him. Had Nixon not ordered illegal wiretapping to be carried out by the same men who were involved with Watergate, Ellsberg would possibly still be in prison forty years later. Bradley Manning probably won’t be so lucky.
If Wikileaks and Julian Assange are to win this potential court case the argument they’ll raise will likely follow the Times.
They must establish, once again, that applying this law can only be appropriate in a truly wartime scenario; where the whole national effort is channelled into survival. It is not enough, particularly for America, to say that wartime is simply a period where troops are deployed in fighting a war, because there is not a single 20th century president whose term would therefore qualify as peacetime.
Following that, they will probably argue that Section 793(e) does not apply to the Wikileaks team. An exhaustive list can be drawn up as to why the Act doesn’t entirely apply to them. ‘Unauthorized access’ may not necessarily mean ‘classified’ if those people classifying of documents are covering up crimes, of which there are many in the Diaries and the Cables. ‘The national defence’ may be, as Justice Thurgood Marshall thought, too broad of a description to apply to anything outside direct military strategy (like ship departure times and current troop locations).
Does Wikileaks knowingly seek to harm US interests, or do they seek to benefit all Americans by allowing them free access to their government’s decisions and their consequences?
Should the American people really be described as people ‘not entitled’ to this information in the first place? It’s even worth asking whether the constant and exclusive use of ‘communicate’, ‘deliver’ and ‘transmit’ (in the full text) suggests that the provision does not apply to ‘publish[ing]’ into wide circulation.
Most of these legal ‘get out’ clauses suggest once again that the Act is not intended for, essentially civil, cases like Times v US and Wikileaks. They are exclusions to prevent the conviction of people who aren’t working for hostile foreign governments, who aren’t engaged in espionage, and who are only seeking to strengthen civil society.
More fundamental still is the argument that the application of the law to publishers is unconstitutional. Assange himself seems serenely confident in the First Amendment’s ability to protect him from any American prosecution. Certainly in Times v US, the free expression granted in the Amendment weighed heavily on the six Justices who found the Times not guilty. The idea of it being illegal to publish a true fact, even before it is published, is particularly abhorrent in the US.
Avoiding ‘prior restraint’, as it’s known, was basically the one thing all six judges could actually agree on, other than the verdict. But new cases continue, rightly or wrongly, to erode away at the absolute nature of the First. The clear and present danger test was unthinkable before Schenck v United States, the ‘imminent lawless action’ test was seen as unthinkable prior to Near v Minnesota and many people were shocked when, in 2001, Bartnicki v Vopper established that it was illegal to distribute information gathered in a way the distributer knew was illegal.
This most recent ruling in particular has thrown the Times’ and Assange’s First Amendment defence into question. Wikileaks looks to be far better pursuing the inadequacy, rather than the unconstitutionality, of the Espionage Act. The reality is that American free speech guarantees are a lot less reliable than they used to be.
The Pentagon Papers case left many loose ends that haven’t been addressed since.
Is the act appropriate for use in peacetime and against civilians?
Can it truly apply to publishers of leaked material from whistleblowers?
And does the First Amendment protect people as much as it used to?
Of course only time will tell.
For now, Julian Assange is only on the first leg of what looks to be a labyrinth of extradition hearings and court cases. But if an Espionage Act trial is ‘the endgame’ this extraordinary process arrives at, then we have to be prepared to consider the basic question: ‘How much truth can we unlock from our governments, and how can we get away with it?’