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Saturday, October 23, 2010

Wikileaks, Genies, and Bottles

Julian Assange, founder of WikiLeaks, is at it again.  First he released 77, 000 secret government documents from the war in Afghanistan, and he has now released 391, 832 field reports from Iraq. 

The New York Times profile of Assange gives some indication of his motive.  He apparently believes his disclosures may curb what he sees as dangerous aggression by the U.S.   More significantly, he is a  (former, alleged) computer hacker who apparently believes in disclosure at all costs, even if the costs are human lives. 

Assange apparently feels a kinship with Daniel Ellsberg, but Assange's disclosures are far more dangerous and potentially deadly than Ellsberg's were during the Vietnam War.  The Pentagon Papers purloined by Ellsberg--the original documents, that is--were filtered through real journalists and editors at the Washington Post and the New York Times.   These "intermediaries" exercised judgment about what should be revealed and what shouldn't based on some consideration of the safety of American military personnel and whether the disclosures truly served the public interest.  Apparently no such editorial judgment is at work behind the Wikileaks disclosures.  Assange is determined to disclose, devil take the consequences, and the Internet gives him the power to release the 391, 932 documents in an instant to the entire world.

In the U.S., I fear that the Wikileaks incident may doom passage of the federal shield bill (the Free Flow of Information Act).  The shield bill, which contains a broad exception to protect national security,  gives reporters limited protection from being forced to reveal the identities of confidential sources in response to federal subpoenas.  It had passed the House and the Senate Judiciary Commitee, when it stalled over the definition of "journalists" entitled to its protection--thanks in significant  part to Wikileaks' original release of Afghan war documents.  This second release by Wikileaks probably spells an end to any desire legislators may have to limit the discretion of the Executive Branch in pursuing leakers of any stripe. 

If anything, the Wikileaks controversy ought to illustrate the important role played by the institutional or so-called "mainstream" media and ought to give Congress more confidence in adopting a narrow definition of "journalists" entitled to the protections of the shield law.  The released documents appear to contain information suggesting governmental abuses of power in the conduct of the war in Iraq.  This information is of vital public interest, and had the documents been leaked to a responsible news outlet, it would no doubt have analyzed, organized, and assembled the information to focus primarily on the items of public interest while minimizing the risks to our troops, our allies, and our national interests.  The fact that the institutional media  have no protection from federal supoenas may in fact have  helped convince the person who leaked the documents to give them to an alleged computer hacker based offshore rather than a responsible outlet such as the Wall Street Journal or the New York Times.  Even if the mainsteam media are flawed, they still have institutional checks and balances and mechanisms for enforcing institutional norms that "non-mainstream" media lack.  The important role the Fourth Estate plays in democracy deserves protection even if it means Congress must draw messy lines excluding others who are occasionally capable of playing that same role. 

Posted by Lyrissa Lidsky on October 23, 2010 at 08:14 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink

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Lyrissa,

I'm happy to see the Shield Law go down in flames, but I won't be surprised if that is a minority position here. I wonder if you still adhere to your view (from your 2007 Minnesota piece) that everyone should get the privilege?

Although I agree that Wikileaks provides ample reason for caution in creating privileges, I'm think the definitional distinction goes the other way: how much more could it possibly take for this guy to qualify as a "reporter"? I agree that the best of the mainstream media perform the screening functions you identify, sometimes, but it's not 1971 anymore. That is, I'm a little less confident about the quality and consistency of mainstream filters than I think was generally believed a generation ago. And the blurring lines between the Assanges of the world, and NYT.com, etc., leave me even less so.

I'm very skeptical that this is a line that can be constitutionally, and enduringly drawn.

Posted by: Adam Scales | Oct 23, 2010 9:05:51 PM

"Assange apparently feels a kinship with Daniel Ellsberg, but Assange's disclosures are far more dangerous and potentially deadly than Ellsberg's were during the Vietnam War."

CNN: "The online leak of thousands of secret military documents from the war in Afghanistan by the website WikiLeaks did not disclose any sensitive intelligence sources or methods, the Department of Defense concluded....

The assessment, revealed in a letter from Secretary of Defense Robert Gates to the Chairman of the Senate Armed Services Committee, Sen. Carl Levin (D-Michigan), comes after a thorough Pentagon review of the more than 70,000 documents posted to the controversial whistle-blower site in July....

The defense secretary said that the published documents do contain names of some cooperating Afghans, who could face reprisal by Taliban.

But a senior NATO official in Kabul told CNN that there has not been a single case of Afghans needing protection or to be moved because of the leak."

So much for the "dangerous and potentially deadly" canard. And let's not forget that Ellsberg was demonized in exactly the same way as Assange is now -- Henry Kissinger publicly referring to him, to offer but one example, as "the most dangerous man in America" who "had to be stopped at all costs."

Posted by: Kevin Jon Heller | Oct 23, 2010 9:58:57 PM

I'm also curious: does your list of "responsible outlets" include the New York Times, which perhaps changed the outcome of the 2004 election by sitting on the warrantless wiretapping story for more than a year -- a decision that its editor, Bill Keller, "justified" by pointing out that the administration had told the paper that everyone inside the government agreed that the program was legal?

Posted by: Kevin Jon Heller | Oct 23, 2010 10:13:30 PM

Kevin: A coalition of five human rights NGOs, including Amnesty International and the Kabul office of the International Crisis Group, protested to Wikileaks about the Afghanistan release. (See Jeanne Whalen, “Rights Groups Join Criticism of WikiLeaks,” Wall Street Journal, Aug. 9, 2010) I'm not sure why AI would do that unless they meant it, since only the year before they had given WikiLeaks their New Media award. I would also take seriously Steven Aftergood's pointed criticisms of Wikileaks on his blog at the Federation of American Scientists site; he is probably the most knowledgeable and smartest opponent of state secrecy and no fan of the wars in Iraq and Afghanistan, and he has serious reservations about the Wikileaks model and their practices.

If one wants to get all tea-leavey on the pronouncements of the Secretary of Defense, it's possible that Gates recognizes that he can't actually stop these kinds of disclosures. (See, for an analogy, the unintentionally hilarious decision in 2008 in Bank Julius Baer v. WikiLeaks, where a district court judge said, in essence, I don't think I have jurisdiction over them and I can't enforce a judgment against them, and even if I could it doesn't matter since they've already released the information, so even if I thought they were violating the law, I couldn't stop them.) That being the case, it's a much better disinformation strategy to act like these disclosures don't actually reveal anything. To concede otherwise is to admit that you have no ability to protect anything and no authority to do anything about it, which is a worse position for a military attempting to do ... well, whatever it is we're attempting to do over there.

For a variety of historical reasons, I don't think Wikileaks will have much direct impact on foreign or military policy (and query whether Ellsberg did either -- there's a great old Edward Jay Epstein piece in Commentary arguing that he didn't). But it might force significant changes to classification policy, both in the vast number of documents that are classified and the vast number of mid- and low-level officials with classification authority and access. When someone like Pfc. Manning can do this degree of damage (if it was indeed him), then the military's entire informational regulatory system has been revealed as a complete disaster. Recognizing and trying to respond to this would be an incidental but significant consequence of these disclosures.

Posted by: Mark Fenster | Oct 23, 2010 11:09:46 PM

I’ll continue in the spirit of Kevin’s comments, one of which I was going to make myself (regarding the demonization of Ellsberg by Nixon administration officials).

Re: “Assange apparently feels a kinship with Daniel Ellsberg”—the comparison was made by no less than Ellsberg himself in the N.Y. Times:

---“Mr. Ellsberg said he saw kindred spirits in Mr. Assange and Pfc. Bradley Manning, the 22-year-old former Army intelligence operative under detention in Quantico, Va., suspected of leaking the Iraq and Afghan documents. ‘They were willing to go to prison for life, or be executed, to put out this information,’ Mr. Ellsberg said.”

Re: “The Pentagon Papers purloined by Ellsberg—the original documents, that is—were filtered through real journalists and editors at the Washington Post and the New York Times. These ‘intermediaries’ exercised judgment about what should be revealed and what shouldn’t based on some consideration of the safety of American military personnel and whether the disclosures truly served the public interest. Apparently no such editorial judgment is at work behind the Wikileaks disclosures.”

---Once more, according to the Times, “WikiLeaks said that it has also employed teams of editors to scrub the material for posting on its Web site.” Moreover, “As it did with the Afghan war logs, The Times has redacted or withheld any documents that would put lives in danger or jeopardize continuing military operations. Names of Iraqi informants, for example, have not been disclosed.”

Re: “Assange’s disclosures are far more dangerous and potentially deadly than Ellsberg’s were during the Vietnam War.”

We would do well to recall all the hyperbolic blather about harming our national security interests that arose both with the prospect and publication of the Pentagon Papers, yet nothing was published “that resulted in the death of soldiers.” Furthermore, “the disclosures did not injure the negotiations to end the fighting in Vietnam or to secure the release of POWs, at least in any way that anyone could identify. Nor did the reports compromise intelligence interests or undermine military and defense plans,” etc. etc. (David Rudenstein). This fact alone might give us pause in endorsing your assessment.

Posted by: Patrick S. O'Donnell | Oct 23, 2010 11:23:31 PM

And, from a Democracy NOW! interview with Ellsberg:

AMY GOODMAN:—that WikiLeaks is withholding documents, concerned about issues of—

DANIEL ELLSBERG: Yes. And moreover, they let the Pentagon know what they were releasing. They gave them the files in code to them and asked them actually to identify people that they hoped to be redacted from those. Now, the Pentagon refused, meaning they prefer to bring charges into—both in court and in the press, of—endanger, rather than actually to protect these people, showing the usual amount of concern they have over other humans.

AMY GOODMAN: Has the same been done with these 400,000 documents?

DANIEL ELLSBERG: Yes. That’s why they’re going over them now. They know what’s coming out. And they have every ability, if people are endangered—which actually is in question to this point. The fact that there’s been no damage up ’til now really strongly questions the claims that were made earlier and, as I say, passed on by most of the mainstream press, very uncritically, that there was danger. But if there was, it may well have been in those 15,000 which WikiLeaks is properly going over still.

JUAN GONZALEZ: So, what you’re saying is that WikiLeaks has let the Pentagon know precisely what it is about to release?

DANIEL ELLSBERG: To my understanding, they have. I’m not in the process. But I understand that they’ve said that they did make them aware of what it is and have invited them to cooperate in protecting those names. But as I say, the Pentagon, if there are such names, has preferred to make charges.


In an interview found at Z Net, Julian Assange says the Pentagon simply demanded that all the files be destroyed and was not at all intetested in redacting the information before it was placed in the public domain. In other words, again, it was offered the opportunity for redaction and refused in favor of the rather unreasonable demand that these documents by destroyed in toto.

Posted by: Patrick S. O'Donnell | Oct 24, 2010 1:23:58 AM

"This information is of vital public interest, and had the documents been leaked to a responsible news outlet, it would no doubt have analyzed, organized, and assembled the information to focus primarily on the items of public interest while minimizing the risks to our troops, our allies, and our national interests."

In other words, it would have had partisanship, spin and be tailored not to angry the sponsors of the paper. If these 'responsible outlets' had done their job a lot of things might have been done to improve the situation in Iraq that was never done. The biggest problem with the leak is not that it contains too much information and too little spin, but that it comes far too late to matter.

Posted by: The Engineer | Oct 25, 2010 1:59:10 AM

It’s certainly true that we should continue to examine the mass media’s fairly compliant if not complicit role in heeding the drumbeat and siren song of war in both Iraq and Afghanistan. With regard to the former, there are books by Greg Mitchell and Michael Massing and an edited volume by Conroy and Hanson that are requisite reading.

That said, we might once again consider the Pentagon Papers analogy:

“At least some people—and the two most notable were Ellsberg and Sheehan—hoped that the disclosure of the Pentagon Papers would hasten the termination of the war. It seems improbable that those who held such hopes had any concrete notion of how the disclosures might initiate a series of events that would bring the war to an abrupt end. Perhaps they thought the disclosures would cause an enormous public outcry demanding the withdrawal of U.S. troops and the termination of funding for the war.

But such hopes were naïve. The publication of the Pentagon Papers during the summer and fall of 1971 seems to have had no impact on the course of the war. Although copies of the Bantam edition sold in large numbers, there was no discernible public reaction. No large demonstrations occurred in the wake of the disclosures as they had following the military incursions into Cambodia in May 1970. Nor was there any concerted public pressure on Congress to cut off funding for the war. Members of Congress showed little or no interest in the Pentagon Papers once the administration made them available. This was true even though they had clamored for a copy of the study while the newspapers were under injunction, claiming that access to it was relevant to their legislative responsibilities.” (David Rudenstine)

Hopes for conducting an investigation into possible war crimes by top American officials as well as expectations for revamping the Pentagon’s classification system were likewise dashed.

Ellsberg himself was repeatedly asked what effect he thought the release of the Papers had on the war and in the Christmas week of 1972 he said, “Nothing. No effect. That’s true for the entire peace movement, of which the publication of the papers was just one part. And not just the peace movement, the whole antiwar majority has had no influence. Nor the electorate.”

Posted by: Patrick S. O'Donnell | Oct 25, 2010 8:08:34 AM

Wikileaks' constituency/reading public is not just Americans. Hence, there is no reason that "responsible" American media organizations should be able to exercise censorship powers over a trove of material that affects the lives of millions elsewhere. It is certainly in some (non-Americans?) interests to know the identities of Afghans and others who have collaborated with the American wars in western and central Asia.

Posted by: anon | Oct 25, 2010 11:36:10 AM

am i reading the last sentence of Anon 11:36:10 right? because, damn.

Posted by: anonymous | Oct 26, 2010 7:15:04 PM

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