November 29, 2011 · 0 Comments
Source: Electronic Frontier Foundation
By Trevor Timm:
(11/28/2011) One year ago today, WikiLeaks started publishing a trove of over 250,000 leaked U.S. State Department cables, which have since formed the basis of reporting for newspapers around the globe. The publication has given the public a window into the inner workings of government at an unprecedented scale, and in the process, has transformed journalism in the digital age.
In recognition, WikiLeaks founder Julian Assange was just awarded Australia’s version of the Pulitzer Prize, in addition to the Martha Gellhorn journalism prize he won in the United Kingdom earlier this year. As Salon’s Glenn Greenwald observed, “WikiLeaks easily produced more newsworthy scoops over the last year than every other media outlet combined.” Yet at the same time, the Justice Department has been investigating WikiLeaks for criminal violations for doing what other media organizations have been doing in the U.S. for centuries—publishing truthful information in the public interest.
Here is a look at Cablegate’s impact on journalism surrounding six countries central to U.S. foreign policy, and why it is vital for the media to stand up for WikiLeaks’ First Amendment right to publish classified information.
This past summer, Senator John McCain was the most vocal member of Congress cheering for more aggressive military action to remove Libya’s then-leader Muammar Gaddafi. But a WikiLeaks cable revealed just two years earlier, Sen. McCain had personally promised to arm Qaddafi with U.S. military equipment. Yet Gaddafi was one of the strongest critics of the WikiLeaks publications. The cables exposed the greed and corruption of his regime, and, according to some reports, seemed to drive him crazy. He even accused the CIA of leaking the documents to undermine him.
Long before U.S forces secretly entered Pakistan to kill Osama bin laden in August, the cables confirmed the U.S. military was already covertly operating inside the country—a fact that the U.S. government had previously denied for months. Despite public support for the Pakistani government, the cables also showed U.S. diplomats have long thought of thePakistani intelligence service, the I.S.I., as a “terrorist organization” that tacitly supports al-Qaeda and the Taliban.
One of the first cables released in 2010 confirmed reports of another undeclared military action that the U.S. had previously denied—drones strikes in Yemen. At the same time, the cables detailed the secret deal the Yemeni President made with the U.S. to allow the strikes, which he lied to his people about in the process. When the C.I.A. extra-judicially killed alleged al-Qaeda leader and U.S. citizen Anwar al-Awaki with a drone in October 2011, the U.S. publicly announced the death but refused to officially release any information about the strike. A cable published by WikiLeaks provided a blueprint for how the attack was carried out.
During the Egyptian revolution, the cables gave the rest of the world a stark and unflinching look at the brutality of Mubarak and his regime, facts of which Egyptians were already well aware. The cables painted a “vivid picture” of the U.S.’s close ties with the regime, but alsoconfirmed to the international community that police brutality in Egypt was “routine and pervasive” and that “the use of torture [was] so widespread that the Egyptian government ha[d] stopped denying it exists.”
The cables have been credited with directly influencing what came to be known as the Jasmine Revolution. In the early stages of mass political protests in Tunisia, Nawaat—the influential Tunisian blogging group—set up a website called Tunileaks and widely distributedthe cables to Tunisian citizens. The cables confirmed that the U.S. viewed Tunisian President Ben Ali as a corrupt and brutal tyrant and fanned the flames of the already smoldering revolution. Amnesty International would credit WikiLeaks and its media partners as “catalysts” in the people’s successful ouster of Ali.
In what may turn out to be WikiLeaks’ most lasting legacy, CNN reported a month ago that a WikiLeaks cable played a role in expediting the return of all U.S. troops from Iraq and ending the decade long war. Negotiations to keep U.S. troops in Iraq longer than the original 2011 deadline were strained when Wikileaks released a cable showing the U.S. tried to cover up an incident where soldiers knowingly killed innocent women and children in Iraq. Iraqi negotiators indicated the cable gave them excuse to refuse to extend the troop presence.
This, of course, only scratches the surface, as the cables have shed light on almost every major foreign policy story of 2011. In April, Atlantic Wire reported that nearly half of 2011’sNew York Times issues relied on WikiLeaks documents. And while all of the cables have now been released, the impact is still reverberating. Zimbabwe’s notorious dictator Robert Mugabe may be next to feel the effects. The BBC recently reported that WikiLeaks revelations may force him to step down from power, a notion that was previously “unthinkable.”
As we look back at how the WikiLeaks cables have enriched and colored our understanding of recent history, it’s impossible to ignore that the Justice Department is currently investigating individuals allegedly associated with WikiLeaks, reportedly for possible violations of the Espionage Act of 1917—an outdated relic of World War I—which has recently been used to punish government leakers.
No media organization has ever been indicted, much less convicted, under the Espionage Act. Constitutional scholars almost uniformly agree that a prosecution of a media organization would be devastating for press freedom and violate the First Amendment. The Justice Department has reportedly tried to avoid this constitutional problem by trying to craft charges against Wikileaks leader Julian Assange for soliciting or inducing classified information from his source under “conspiracy to commit espionage” theory.
Of course, asking sources for information is part of the normal news gathering process for any reporter, which is why Yale law professor Jack Balkin said the Justice Department’s strategy “threatens traditional journalists as well.” Secrecy expert Steven Aftergood argued that a prosecution under this theory could criminalize “ordinary conventions of national security reporting.” And former New York Times general counsel James Goodale remarked the Justice Department might as well be investigating WikiLeaks for “conspiracy to commit journalism.”
Yet the mainstream press, most notably the New York Times, has done little to defend WikiLeaks’ right to publish, despite the fact that legal observers on both the left and right have said it’s impossible to distinguish WikiLeaks and the Times under the letter of the law.
Assange’s rocky relationship with the Times and other media partners may be the reason for the Times’ silence. But, no matter what one thinks of Assange, failing to defend WikiLeaks’ right to publish government secrets is dangerously short sighted. With all the attention WikiLeaks has received, it’s easy to forget that newspapers have been publishing secret information for decades. In fact, in the past year, stories based on non-WikiLeaks classified information about Afghanistan, Pakistan, Russia, Yemen, Somalia, Libya, Iran, China have graced the pages of the country’s most established publications. And much of the information on which those stories were based is of a higher classification level than anything WikiLeaks published.
The New York Times may feel safe in the Justice Department’s indication that they are not the target of any investigation, but the “trust us” argument will only last until the next big scoop. It was less than a decade ago that then-Attorney General Alberto Gonzalesrepeatedly claimed he would like to investigate the New York Times under the Espionage Act for its NSA warrantless wiretapping investigation. New York Times reporters James Risen and Eric Lichtblau won a Pulitzer Prize for exposing gross constitutional violations that also happened to be classified “Top Secret.” But with a successful WikiLeaks prosecution, a threat like Gonzales’ could force a paper to kill such a story, or worse: the next Pulitzer Prize winner may be forced to accept his or her prize from a jail cell.
The mainstream American press has the most to lose from a WikiLeaks prosecution. Whether or not Julian Assange is indicted can’t extinguish the idea WikiLeaks represents. We now know the technology and expertise exists to create anonymously driven whistleblower platforms that can advocate for government transparency by publishing all over the world. As the Economist said, “Jailing Thomas Edison in 1890 would not have darkened the night.” And despite the established press’s unwillingness to defend WikiLeaks, they are also trying to copy WikiLeaks’ model.
As the media look back on the WikiLeaks cables’ wide-ranging impact on journalism this week, it’s important they also defend the idea behind WikiLeaks. Because if they do not stand up for WikiLeaks’ right to publish, in the end, it will only be harder to preserve the publication rights of mainstream organizations like the New York Times. The real casualty in a Wikileaks prosecution will not be Julian Assange; it will be the death of a free press and the First Amendment itself.
Trevor Timm is an Activist at the Electronic Frontier Foundation. He specializes in free speech issues and government transparency.