The Wikileaks scandal: Is the hallmark of security maximum disclosure?

            In August 2010, Wikileaks published 91,000 classified documents relating to the Afghanistan War.  In October 2010, Wikileaks published nearly 400,000 more documents relating to the War inIraq.  The issue discussed in this blog post is whether or not the publication of these documents is a crime for which the Justice Department can prosecute Wikileaks.

            This is not the first time in America’s history that the judicial branch has been faced with the government’s attempts to limit the content being published by American newspapers.  Most notably is the case New York Times Company v. United States, 403 U.S. 713 (1971), in which the United States sought to enjoin newspapers from publishing classified historical studies on Vietnam policy. The Court, in a per curiam opinion, held that the Government did not meet its burden of “showing justification for the imposition of such” restraint against the freedom of the press.  Id. at 714 (citing Organization for a Better Austin v. Keefe, 402U.S. 415, 419 (1971)).  Justice Black, in his concurring opinion, stated that both the “history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”  403U.S. 713, 717 (Black, J., concurring). 

             Justice Douglas concurred under the reasoning that there was no statute that prohibited the publication of the materials the newspapers wished to use.  403 U.S.713, 720 (Douglas, J., concurring).  The Espionage Act was the law thought to be applicable to the case, but Justice Douglas dismissed all relevant sections of the Act as inapplicable.  Id.  (The relevant sections of the Espionage Act will be discussed at length later in this blog post).  18 U.S.C. §793(e) makes punishable the unlawful communication of “unauthorized possession of, access to, or control over any document, writing * * * or information relating to the national defense * * * [that] could be used to the injury of the United States or to the advantage of any foreign nation.”  Id. at 721.  Justice Douglas dismissed the use of this section in this case due to the fact that “[t]here are eight sections in the chapter on espionage and censorship, ss 792-799.  In three of those eight ‘publish’ is specifically mentioned . . . [t]hus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.”  Id.

            Justice Stewart, in a concurring opinion, discussed the issue of international diplomacy and the confidentiality necessary for mutual trust amongst the nations.  403 U.S.713, 729 (Stewart, J., concurring).  In answering the dilemma faced by the need for secrecy and confidentiality as opposed to the freedom of the press and the right of the people to be informed, Justice Stewart states that the “hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.”  Id.  Thus, though some things must absolutely be kept confidential by our Government, “when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical.”  Id. 

            Justice Blackmun, in his dissenting opinion, argued for a “weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent.”  403 U.S.713, 761 (Blackmun, J., dissenting).  The problem was that standards were not development in 1971, and the parties could not agree on standards, though both sides conceded that there are times where restraint is constitutional.  Id.

           With this precedent established, I now turn back to the Wikileaks issue.  People who want Wikileaks prosecuted are again arguing that the Espionage Act should be the law under which Wikileaks is prosecuted. 

           18 U.S.C. §793 governs the gathering, transmitting or losing of defense information:      

               (e) Whoever having unauthorized possession of, access to, or
    control over any document, writing, code book, signal book, sketch,
    photograph, photographic negative, blueprint, plan, map, model,
    instrument, appliance, or note relating to the national defense, or
    information 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, transmits or causes to be communicated,
    delivered, or transmitted, or attempts to communicate, deliver,
    transmit or cause to be communicated, delivered, or transmitted the
    same to any person not entitled to receive it, or willfully retains
    the same and fails to deliver it to the officer or employee of the
    United States entitled to receive it;
               Shall be fined under this title or imprisoned not more than ten
    years, or both.”
 
18 U.S.C. §798, governing the disclosure of classified information, also seems applicable:

        “(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of theUnited Statesor any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of theUnited Statesor any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

        Shall be fined under this title or imprisoned not more than ten years, or both.”

The issue then is: can Wikileaks be prosecuted under either of these statutes?  If, as Justice Douglas stated in the New York Times case (above), the words “publish” and “communicate” do not mean the same thing under the statute, what is actionable here? 

            Trevor Timm, in his article published on a New York Law School website, “Legal As She is Spoke,” argues that Wikileaks has committed no crime and that is why a lawsuit has not yet been filed against it.  Timm, Trevor, “Wikileaks has committed no crime”, http://www.lasisblog.com/2010/11/12/wikileaks-has-committed-no-crime/, November 12, 2010.  Mr. Timm again harps on the distinction between the definition of “communicate” under that statute, and the definition of “publish”.  Honing in further on the language of the statute, Mr. Timm criticizes that “Section 794 sets out specific information that is prohibited such as troop and ship ‘movement[s]’ and military ‘plans,’ emphasizing future missions, while the Iraq and Afghanistan leaks consisted of after-action reports about what had already taken place. In other words: history.”  When Wikileaks published these documents, it states that it did so to effect public opinion of the war, not to aid an enemy.  The documents only reported past events – they did not reveal future plans of the Defense Department.  Furthermore, the U.S. Government was unable to prove any harm resulting directly from the release of these documents – the Government could not prove that any soldiers died directly as a release of these documents, nor that Government locations were revealed from these documents.  Mr. Timm further notes that no media outlet has ever been charged under Sections 793 or 798, and that it is clear the Justice Department is not going to start prosecuting media outlets under these sections now, or they would have already done so.  Mr. Timm concludes his article by stating that Wikileaks has not been charged with breaking a law because, “perhaps they can’t find one” that was broken.

            So what, if any, action can the government take against Wikileaks, if they have not broken any law?  Representative Peter King (R-NY) has suggested taking action by designating Wikileaks as a foreign terrorist organization (FTO).  If designated as an FTO, it would then be illegal for anyone to give aide to Wikileaks – whether it is in the form of monetary support or free legal aide.  Furthermore, Wikileaks’ assets could be seized.  The idea behind designating Wikileaks as an FTO is that if it is not breaking any laws by publishing these documents and thus cannot be prosecuted, the government will cut off it’s power supply so that the organization cannot continue on, and then prosecute anyone who aides them.

            While I do not personally agree that Wikileaks’ action rise to the level necessary to designate them as an FTO, this issue does raise substantial questions about criminal law in the virtual context.  Where confidential information can now be stolen and disseminated in such a rapid fashion due to the use of new technology, the Government will has almost zero response time before this information can be published to the world.  While technology has greatly aided our national defense agencies, it has also left those same agencies vulnerable in situations such as this where privileged or confidential information can be published in such a rapid fashion with little recourse under the law.

 

 

 

 

 
 

 

 

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~ by lindsayufl on September 18, 2011.

9 Responses to “The Wikileaks scandal: Is the hallmark of security maximum disclosure?”

  1. As I am just a 3L, Justice Douglas clearly knows more than me about the law and the history of the Espionage Act. I am confident he did much research into the Act’s language, the legislative history of the Act, and is much more of an expert on it than I will ever be. That being said based on the language presented in the blog, I have to disagree with his assertion about the difference between “communication” and “publish”. It seems to me that “communication” is a much broader and far encompassing word than publish. One can communicate something without publishing it, but I would argue that common sense says you are always communicating something when you publish it. If publishing something isn’t a form of communication, then how is it protected by free speech? For that reason, I would argue the Espionage Act would apply to Wikileaks.

    I agree with the argument that Wikileaks is only publishing “history” and after the fact reports. If Wikileaks is not putting anyone in danger, then they should be able to publish whatever they want. If the government is upset because the reports shed light on bad war practices or government lies that could make our friends and enemies mad at us, too bad. Don’t do the actions if you can’t handle the backlash if and when it becomes public. I think your blog is right when it talks about Wikileaks not being charged with a crime being the result of the fact the government can’t prove any law was broken.

    Finally, I think Wikileaks argument that they are only trying to change public opinion, but not endanger anyone is garbage. Of course, they are going to say that. Moreover, what does it matter what their intent is if what they do does indeed jeopardize national security. If their leaks get people killed, then the fact that they didn’t mean for people to die doesn’t really matter. In that case, they did endanger national security. One could also argue that turning public opinion against the government is a form of aiding the enemy. I don’t agree that Wikileaks should be named a terrorist organization just because we can’t find a crime to charge them with. Be able to reasonably show that the information endangers national security or be able to live with it being published. That’s why we have a free press and a free press is necessary for a democracy to be trusted.

  2. In the course of my daily internet browsing, I often see a lot of “public outcry” (posts on Reddit) about how Wikileaks is the greatest thing since broadband (I had to change the analogy for the internet, sorry for the terrible joke…). It seems that everyone who posts wants to raise hell about the lack of ubiquitous public disclosure, and how something like Wikileaks is the answer to all of our problems. The thought process seems to be that if everyone had to disclose everything, there could be nothing to hide behind. This goes for politics as well as big players in our country’s financial markets. I’m going to use the example of financial markets for the remainder of this post.

    In the “hypothetical” instance that a large investment bank was exposed as corrupt and full of insider trading, bad deals, and huge golden parachutes for its executives, what would exposing this accomplish? In my opinion, nothing. By the time email threads and financial records are being hacked and published, the damage is done. For that matter, the stock market is only based on what people THINK will happen – knowledge is instantaneous, if not based on future events. Finding out that Company A is corrupt is just going to make their stock tank, which in the face of corruption, was already bound to happen anyway. Some people may find out a bit sooner than they would have, but maybe the public finding out this information causes an overreaction instead of an appropriate one.

    For those of you who have seen Fight Club (which I hope is everyone), Wikileaks, to me, seems like Project Mayhem. I’m not saying they are out to cause chaos or harm, but they go against the societal grain of being passive and letting the chips fall where they may. Personally, I think Wikileaks is a great concept, but it realistically doesn’t accomplish much other than inciting those already looking for ammunition. I think public disclosure, especially of moral and legal wrongs, is a great way to deter illegal and unethical behavior. That being said, I feel like it just gives conspiracy theorists the fuel they need to rant on the internet, or even take action to damage any entity allegedly committing wrongs, which in my opinion only worsens any existing problem.

  3. First off, I wanted to clarify the difference between “communication” and “publishing”. I’m not really sure there is as distinct a difference as Justice Douglas made it seem. To me, I picture communication as a broad, overarching umbrella term encompassing a variety of means to spreading information (ie. communicating) like in-person conversation, calling someone on the phone, transmitting a news report, and publishing the material whether it be in a newspaper, online news article or website posting, or through a series of text messages between cellular users. Communication is not just the receipt of information between individuals, but rather encompasses the entirety of the sequence–both the input, delivery, and the noise and events in between. I must respectfully dissent from Justice Douglas’s decision that the Espionage Act does not encompass, nor govern, the Wikileaks scandal. However, that is not to say that i agree that Wikileaks should be held liable for the information they transmitted; I am simply exerting my belief that the Espionage Act does in fact govern the circumstances.

    The situation is a sticky one to navigate. The First Amendment is prided among Americans as allowing citizens the right to speech, publication, and communication unhindered by overbearing governmental taxation, restriction, and regulation. While there are some stipulations (ie. communications cannot incite violence), overall, Americans enjoy a broad freedom when it comes to communication mediums as well as what exactly is conveyed. But, even still, I have to take the position against Wikileaks. Even though Trever Timm’s article clearly explains that Wikileaks merely published past-dated documents with the intent of affecting the public opinion of the war, not aiding the enemy, and reported past events, not future plans of the Defense Department, I find it hard to imagine that the US Government didn’t withhold the information for some reason. In addition, the government oftentimes must conceal certain information from its citizens and, while I don’t always completely agree with the government’s chosen actions, I have to believe that during this time (in the short years following the 9/11 attacks) the government worked diligently to protect the American people, preserve the public sentiment, as well as prohibit governmental communications from being shared with the opposing side. Even something that we as everyday citizens don’t feel is beneficial to the opponent, the governemnt might realize the opposite. The government might have motive behind its censoring of certain materials.

    I’m not sure how I feel about designating Wikileaks as a foreign terrorist organization (FTO). I don’t know enough about the materials published and if they–despite what Trevor Timm writes–had some impact overseas. A part of Peter King’s commentary that I’m particularly unsettled about is his motivation behind suggesting such a label for Wikileaks (if no law broken, the government can cut off power supply). To me, this gives the impression that the Government is an all-powering being that has unlimited control over any situation and if one road fails, there is an alternative to equally resolve the problem. I understand that with new technology comes a greater and more time-efficient risk for criminal law violations in a virtual context, but without my knowledge, I am uncertain that Wikileaks’ actions account for terrorist activity. But to play devil’s advocate, the United States is often prided for its proactive behavior, no matter how stringent it may seem at first. So if this is what it takes to set strict precedent, rather than a lax loophole or exception, then it might be necessary to take such precautions. It’s always easier to be proactive then have to reactively respond to a devastating attack on our troops overseas or here in this country.

  4. Diplomacy as Art

    I believe that there is a lot going on here beneath the surface. I am fascinated by the empty spaces and what they could be filled with. Is WikiLeaks distribution of classified documents a crime? For PFC Manning, the answer is yes. PFC Manning took several oaths and signed commitments that he clearly violated. He will be punished under the Uniform Code of Military Justice (UCMJ), and all the legal theory about the implications of what WikiLeaks did after it received classified documents from PFC Manning does not take away from the fact that PFC Manning is pretty much toast.

    As I mentioned in my first comment, I believe WikiLeaks should be prosecuted, but it should not be classified as a Foreign Terrorist Organization. Mr. Timm’s argument is interesting that the U.S. government hasn’t yet prosecuted because they can’t find a law that was broken. On the surface you have this diplomatic catastrophe because of the actions of a loan Private First Class and foreign activist group with shady morals; and the U.S. government can’t find a law to apply.

    I agree that distinguishing “publish” from “communicate” can raise legal issues. Additionally, the New York Times v. United States case (1971) was before the context of “publishing” and “communicating” in the internet age. Furthermore, freedom of the press issues must weigh heavily on the analysis. I suspect there are diplomatic concerns that govern this issue, however.

    Diplomacy can be described as the art of conducting negotiations and international relations. What does tough diplomacy look like in the internet age? I remember 2008 Candidate Obama promising to shift International Relations away from militarism and towards tough diplomacy.

    See example:

    Diplomacy’s definition is fluid, but President Obama did promise to use “carrots and sticks.” The WikiLeak’s publication of diplomatic cables and other documents in August and October of 2010 contained massive amounts of embarrassing information for the international community. In the Wired article, PFC Manning seemed to think this information looks bad for the US. On the contrary, the documents reveal very little negative about our country. Imagine the WikiLeak from a Nazi soldier, a Saudi Arabian prince, or a Chinese official…

    President Obama has promised tough diplomacy. A few months after the Oct 2010 WikiLeak, the Arab Spring started in Tunisia. Whether the U.S has merely spun some negatives into a positive or if the invisible hand of diplomacy has strengthened over the past few years, the international scene is incredibly transformed since President Obama took office (and we got Bin Laden).

  5. At first glance, I was convinced that there must be a crime for which the Justice Department could prosecute Wikileaks. However, after reading Timm, Trevor, “Wikileaks has Committed No Crime”, http://www.lasisblog.com/2010/11/12/wikileaks-has-committed-no-crime/, November 12, 2010, my answer is no. For all of the reasons pointed out by Timm. These reasons include the following:

    (i) Section 793(e) of the Espionage Act prohibits the communication of classified information but not the publishing of classified information. The legislature drew a distinction between “publish” and “communicate” in Section 793. Section (e) specifically mentions “communicate” but not “publish”. Three other sections of the statute include the word “publish” in three other sections of 793, but “publish” is not mentioned in section (e). This section does not apply to Wikileaks because Wikileaks published the classified information, not just communicated the information.

    (ii) Section 794(b) is distinguished from Section 793(e) because the word “publish” is included in Section 794(b). However, Section 793 also does not weigh in favor of a prosecutable offense because this section only applies to information published with the intent to deliver to the enemy. Wikileaks published the classified information, as stated by Timm, initially within the United States and to newspapers in allied countries. Although, I agree with Timm’s analysis, I have two concerns. First, Wikileaks was aware of the global dissemination of information by using the Internet to publish the classified information. It was inevitable that enemies of the United States would become privy to the disseminated information. Second, there is no certainty that Wikileaks intentions were as altruistic as they say, i.e. to affect U.S. public opinion of the war. It is possible that Wikileaks or its agents meant for the information to reach enemies of the United States.

    (iii) Timm then moves his analysis of Section 794 which prohibits dissemination of troop and ship movement and military plans, in other words, future movements. Of all the sections cited by Timm, this section seems the least likely to contain a basis for prosecution of Wikileaks based on Timm’s interpretation of the section as only applicable to future plans. To further support his argument, Timm stated that Wilileaks has not directly contributed to any harm of U.S. soldiers. Again, although I agree, I have a concern. Wikileaks has to date only released classified information on past events, will it continue to do so? I believe that Wikileaks will disseminate any information that it believes is newsworthy whether that information is a future plan or not. Wikileaks was fortunate that this section of the Espionage Act only applies to future plans and PFC Manning was only privy to past classified information. If PFC Manning was privy to future classified information, I believe that Wikileaks would have published the future classifed plans regardless of the national security risk as long as it was newsworthy.
    (iii) Section 798, according to Timm, does not have an intent requirement, but this section is narrow, pertaining only to certain types of information, i.e. cryptography, signals communication intelligence, or interception of governments’ communications). This was not the type of information which Wikileaks leaked. LOL!!! Again, had PTC Manning been privy to this information Wikileaks would have published the information and then attempt to hide behind a loophole in the law or the First Amendment to escape prosecution.

    Although, I agree with Timm, I am afraid that the holes in the law mean that the press is virtually blameless to disseminate any information whether it classified or not. This should not be the message that is sent to the press and hackers or employees of government organizations who aid in the dissemination of classified information.

  6. I agree completely with jramsey and the lack of difference between “communication” and “publish.” As I was reading the post, I had faith the justices would reach the correct decision if even through flawed logic. The problem with the wikileaks issue is that it’s so hard to show the damage they have caused. You can’t simply link the death of Private Fuzzy to wikileaks when his squad was ambushed. It’s an area that to an extent you actually do have to trust military officials when they tell you it’s dangerous. Labeling what was leaked “history” is not an accurate reflection of what actually occurs. Yes, it’s called an after-action-review, but the effects of its disemination affects the future. In an AAR, officials talk about weaknesses(emphasis added) in their operations and ways to improve them. When this gets out, we all learn the trends and weaknesses of our combat forces which allows the enemies to exploit them. They also learn how the military evolves and gives them the opportunity to prepare for how US forces will engage them. 18 U.S.C. §793(e) has to apply to wikileaks. “… or information relating to the national defense * * * [that] could be used to the injury of the United States or to the advantage of any foreign nation.” If the US cannot label them an FTO, they should send Seal Team Six after Julian Assagne at a minimum.

  7. Any prosecution taken against Wikileaks, regardless of the charges, is undoubtedly going to be the most epic legal battle we will probable see in our lifetimes. Why? Because any prosecution would undoubtedly be a battle against free speech — arguably the most fundamental right granted to us by the US Constitution. Saying that someone who is merely disseminating truthful political information on the internet is committing espionage or treason seems to be a bit absurd.

    There is a huge difference between someone directly stealing (or aiding someone in stealing) secret government documents and someone merely disseminating documents they received to the general public. Do we really want to set the dangerous precedent of criminally prosecuting someone or something (a newspaper, television station, etc.) for simply disseminating truthful information just because it paints our government in a bad light? Don’t the citizens of our country have a fundamental right to know just what the government is doing behind closed doors? Honestly, it seems to me that most of the governmental outcry regarding the illegality of Wikileaks is aimed at distracting the general public from the not-so-pretty picture the released documents paint of our government.

    Although I completely understand the argument that these documents are highly sensitive, have the potential to threaten national security, and may not be in the best interest of our country’s foreign policy, we shouldn’t forget that Wikileaks is merely the messenger here. I have yet to come across any evidence that Wikileaks has resulted in any casualty — directly or directly, in any attack or threat to our country’s national security, or that it has irreparably damaged any of our relations with other countries.

    Frankly, the NYT case shows that our justice system has already declared that disseminating leaked governmental documents is protected by the First Amendment. The precedent has been set that “the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints.”

    In my opinion, Wikileaks is moreso about the messenger than the message. If a for-profit media outlet is guaranteed the freedom to disseminate leaked governmental documents, how can we possibly say that an individual or independent outlet do not also have that freedom? I highly doubt that the first amendment, when written, was intended only to apply to mainstream media giants! Such outlets were not always r. At their birth, most of these outlets were independent watch-dogs, much like Wikileaks.

  8. Great post, Lindsay. After 9-11, there was a lot of criticism aimed at America’s intelligence community for failure to “connect the dots.” America’s 16 or so intelligence agencies did not share information with each-other, and information was restricted so vigorously that not enough analysts were able to see enough of the pieces to grasp the reality that Al-Qaeda was planning a large attack in New York City. After the attacks, the intelligence community was reformed, and a great effort was made to get send more information further down the military and intel hierarchy. The belief was that if more people in the military and intelligence community had access to this information, the more likely they would be to make use of it- to stop another attack from occurring. This is why Bradley Manning was able to gain access with ease to so much sensitive information. How the military and intelligence community responds to the leak has the potential to impact us even more than the legal implications of Wikileaks publishing the data.

    The publishing of the documents by Wikileaks also shows how seriously we take openness and the freedom of the press in our society. It is a shame that our security and our values are in opposition here. Perhaps it is true that no one can point to a single death caused by the leaks. And in fact, perhaps videos like Collateral Murder expose more truth than danger. However, intelligence agencies in countries throughout the world have been given a glimpse into the world’s largest intelligence community ($60 billion annual budget). The value of the leaks to foreign intelligence agencies (say, perhaps, China’s) is invaluable. This is not history. This is the present.

  9. Wiki-leaks presents an interesting issue. It stands for the freedom of information. We are supposed to be afraid of it because it could cause an uprising. But as a people we do not really seem to care. In my day to day life I have not needed to bother with looking through Wikileaks. I tried, but found it uneventful and copious. So the project stands for freedom of information for those who want it. I am too busy with what I got going on though. How has wikileaks affected your life? It has not affected mine at all.

    There are those of us that want to know the secrets the Government is keeping from us. And I don’t blame them. If someone is able to get the information and post it, I don’t think they should be prosecuted. Good for them. Government secrets are secrets for a reason. Someone has decided the information is not suitable for the populous. I personally am offended that someone or some entity is deciding what is and what is not ok for me to know, but like most Americans I am to lazy to do anything about it.

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