WikiLeaks: an increased call for transparency

WikiLeaks’ latest release of classified documents raised deep concern among the United States (US) Government and put into question whether the freedom of expression, as established in the First Amendment of the US Constitution, should be object of revision by amending the Espionage Act of 1917.

Attorney General Eric H. Holder Jr. said that a criminal investigation of WikiLeaks is continuing even after Mr. Assange, a 39-year-old Australian, was released on bail after surrendering to British authorities on 7th December in connection with a case in Sweden in which two women have accused him of rape and other sexual crimes.

In the meantime the Air Force and the Library of Congress have blocked the WikiLeaks website.

The repeated calls for criminal prosecutions to the funder of WikiLeakes raise a whole series of questions related to the most fundamental questions about freedom of expression and about what the public can know about the actions of its own government and therefore its level of accountability.

The recent US hearing on WikiLeaks, “Hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks“, which took place on the 16th December 2010 took into considerations, among others, these issues and will be therefore be the main source used for the following analysis.

The background

As of 3 January 2011, 1,997 individual cables had been released by WikiLeaks, which has planned to publish 251,287 cables, originating from 274 embassies, dating from 28th December 1966 to 28th February 2010.

According to WikiLeaks’ website the cables are divided in:

15, 652 secret

101,748 confidential

133,887 unclassified.

According to Judge Louie Gohmert the release of documents “threatens our national security, our relations with foreign governments, and continued openness from embassy officials and foreign sources”.

However, Mr. Gates while defining the leaks embarrassing, considers that they have had modest consequences for US policy, so far. Also Thomas Blanton pointed out that although most international affairs scholars consider the cables useful, so far nothing in the diplomatic cables compares to the impact on public policy in 2004 from the leak of the Abu Ghraib photographs, of the secret prisons, or the torture memos, or the Pentagon Papers’ contribution to the end of the Vietnam war.

So, although embarrassing, the cables do not represent a clear danger to the US security and, since unpopularity does not represent a crime as House Judiciary Committee Chairman John Conyers jr pointed out, it is not clear what law has been violated by WikiLeaks.

The existing difficulties in finding a shared opinion of what information is indeed sensitive and what is not, have led to the over-classification of material, as several panellists pointed out during the hearing. In particular, Thomas Blanton, Director of the National Security Archive George Washington University, stated that current and former officials estimate that between 50% to 90% of what is classified is either over-classified or should not be classified at all.

This opinion was further re-affirmed by former Governor of New Jersey Tom Kean, who commenting on the Committee on House Judiciary review on the US Government’s most sensitive records about Osama bin Laden and Al-Qaeda after 9/11, observed that 75% of what he read that was classified should not have been so. Finally, President Reagan`s National Security Council secretary Rodney McDaniel estimated in 1991 that only 10% of classification was for “legitimate protection of secrets”.

The over-classification of the U.S. government’s national security information means that thousands of soldiers, analysts and officers need access to huge quantities of classified information and this necessary access makes it impossible to effectively protect truly vital secrets, said Mr John Conyers. Harvard law professor Jack Goldsmith, who served President George W. Bush as head of the Office of Legal Counsel at the Justice Department, stated that: “a root cause of the perception of illegitimacy inside the government that led to leaking is, ironically, excessive government secrecy.” As Potter Stewart asserted “When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”(…) The hallmark of a truly effective internal security system would be the maximum possible disclosure (…) secrecy can best be preserved only when credibility is truly maintained.”

Of course, nobody is in favour of leaks that put people at risk. But as Mr Bill Delahunt (who serve on the Foreign Affairs Committee and had the opportunity to chair the committee on oversight) pointed out, currently there is an overwhelming over-classification of material which calls for a review of the classification procedures.

Thus, if a great amount of information which is currently classified should not have been classified in the first place, what is the liability of WikiLeaks and more in general what are the obligations that an individual not employed by the Government has towards the latter to keep its own secrets?

To answer to these questions it might be useful to compare this situation to the client-attorney relation, explained Professor Geoffrey Stone, former dean of the University Chicago Law School: “The client is free to keep matters secret by disclosing them to no one. He is also free to disclose certain matters to his attorney who is under a legal obligation to respect the confidentiality of a client’s disclosures. In this sense, the attorney is sort of like the government employee. If the attorney violates the privilege by revealing the client’s confidences say to a reporter, then the attorney can be punished for doing so. But the newspaper cannot be constitutionally punished for disseminating the information.”

However, the proposed Shield Act would amend the Espionage Act of 1917 to make it a crime for any person knowingly and wilfully to disseminate, in any manner prejudicial to the safety or interest of the United States any classified information (…) concerning the human intelligence activities of the United States or (…) concerning the identity of a classified source or informant” working with the intelligence community of the United States.” The proposed Shield Act might be constitutional as applied to a government employee who “leaks” such classified material, but it is unconstitutional as applied to other individuals who might publish or otherwise disseminate such information.

On the basis of the principle of freedom of expression, which stems from the first amendment of the US constitution states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Furthermore, the Supreme Court in the case Bartnicki v. Vopper, held that when an individual receives information from a source who has obtained it unlawfully, that individual may not be punished for publicly disseminating the information, absent the need of the highest order.

Therefore, the suppression of public speech must be the Government’s last rather than first resort in addressing a potential problem. The Government should demonstrate the existence of a clear and present danger before limiting such a right. If there are other means by which government can prevent or reduce the danger, it must exhaust those before it can even entertain the prospect of suppressing the freedom of speech.

On the contrary, Judge Ghomert was of the opinion that nowadays we are confronted with different tools of mass communication compared to the one that were foreseen when the First amendment was written and therefore the boundaries of free speech should be re-thought, so as to balance this freedom with the Government’s need to protect some information.

However, there are very good reasons for the Government to demonstrate a clear and present danger before reducing the freedom of speech and these reasons do not vary depending on different communication tools:

1) The simple fact that the dissemination of such information might in the words of the proposed Act “in any manner prejudice the interests of the United States,” does not mean that the harm outweighs the benefit of publication, as Chairman Conyers noted. 2) A case by case balancing of harm against benefit would be unwieldy, unpredictable, and impracticable. Clear rules are essential in the realm of free speech. That is why the Government has so much authority to restrict the speech of its own employees, rather than insisting that in every case the government demonstrate that the harm outweighs the benefit.

3) There are great pressures that lead both government officials, and even the public, to overstate the potential harm of publication in times of national anxiety. A strict clear and present danger standard serves as a barrier to protect us against that danger, Mr Conyers concluded.

It is evident that, in order to protect effectively real vital information, the classification system should be put under review. Indeed the leaks underline the weaknesses derived from a system not sufficiently transparent.

By focusing on prosecuting WikiLeaks, not only there is a risk of violating one of the fundamental constitutional freedom, but also there is a clear risk of limiting the right of citizens to hold accountable their own Governments democratically elected.

As Mr Delhaunt put it: “Secrecy is the trademark of totalitarism. To the contrary, transparency and openness is what democracy is about”.

LB

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