WikiLeaks and the First Amendment

WikiLeaks is an international, nonprofit organization that publishes submissions of private, secret, and classified materials from confidential sources, news leaks, and whistle-blowers. It was launched in 2006 by Julian Assange, an Australian Internet activist. In 2010, WikiLeaks published secret footage of a 2007 American helicopter attack in Baghdad that killed several Iraqi journalists. Later that year and in early 2011, it published some 480,000 previously secret documents on the wars in Afghanistan and Iraq, 779 secret files relating to prisoners detained at Guantánamo Bay, and 77,000 classified State Department cables. It was the State Department cables that created a firestorm, and although WikiLeaks made some effort to redact the most dangerous or harmful information in the cables, critics say it did so recklessly. Thus, even though the released cables contained a great deal of innocuous and uninteresting information, some of the intelligence turned out to be enlightening and helpful to public understanding, while some of it proved to be harmful to the national interest.

In an example of the latter, the American ambassador to Mexico was forced to resign under Mexican pressure after WikiLeaks disclosed a cable to the State Department in which the ambassador said that the Mexican Army had been risk averse in going after drug traffickers. In another example, the Prime Minister of Zimbabwe, an opponent of the despot Robert Mugabe, is now under investigation for treason because one of the classified cables released by WikiLeaks reported a statement that he had made to the U.S. ambassador suggesting that the United States should continue its sanctions against his country.

WikiLeaks received the State Department cables in a data dump from Private Bradley Manning, who had access to the cables through his job in the Pentagon. Manning is currently being held in military custody at Fort Leavenworth, Kansas, and the U.S. government is investigating Assange and other persons associated with WikiLeaks to determine whether they can be criminally prosecuted consistent with the First Amendment to the U.S. Constitution. All this raises interesting issues, and I would like to turn the program over to our three experts, each of whom will speak on whatever facet of this controversy he or she finds noteworthy.

Our first speaker is Judith Miller, an author and Pulitzer Prize-winning investigative reporter. She worked for The New York Times from 1997 to 2005 and is now an Adjunct Fellow at the Manhattan Institute and a Contributing Editor of its magazine, City Journal. Since 2008, she has been a commentator for Fox News, speaking on terrorism and other national security issues, and on the need to strike the balance between protecting both national security and civil liberties in a post-9/11 world. Prior to leaving The New York Times in November 2005, Judy spent eighty-seven days in jail to defend a reporter’s right to protect confidential sources in the controversy over CIA operative Valerie Plame’s leaked identity. That year, she received the Society of Professional Journalists’ First Amendment Award for her protection of sources. Judy has written four books, including Germs: Biological Weapons and America’s Secret War, God has Ninety-Nine Names, which explores the spread of Islamic extremism, and Saddam Hussein and the Crisis in the Gulf.

Our second speaker, Judge Richard A. Posner, is the most influential legal thinker of the past half-century. Both as a judge on the U.S. Court of Appeals and as a scholar at the University of Chicago, Dick has repeatedly changed the way people think. He has published more scholarly books than Shakespeare published plays. Several of them are directly relevant to today’s program, including Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, Not A Suicide Pact: The Constitution in a Time of National Emergency, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, and Catastrophe: Risk and Response. To give you a sense of the extraordinary breadth of Dick’s mind, I will mention some of the other books that he has published: The Crisis of Capitalist Democracy, Sex and Reason, The Essential Holmes, The Problematics of Moral and Legal Theory, The Economics of Justice, How Judges Think, and Law and Literature – to say nothing of his books on antitrust, the Clinton impeachment, Bush v. Gore, and a host of other topics.

Our third speaker, Gabriel Schoenfeld, is a Senior Fellow at the Hudson Institute and the author, most recently, of Necessary Secrets: National Security, the Media, and the Rule of Law. Gabe writes frequently on national security and intelligence issues for The Wall Street Journal and The Weekly Standard, and his op-eds, book reviews, and articles appear regularly in publications such as The New York Times, The Washington Post, Los Angeles Times, The New Republic, The Atlantic Monthly, Bulletin of the Atomic Scientists, and Der Spiegel. From 1994 to 2008, Gabe served as Senior Editor of Commentary, and before that he was a Senior Fellow at the Center for Strategic and International Studies and served as a staff member for Senator Daniel Patrick Moynihan. Currently, Gabe is on leave from the Hudson Institute and serves as a Senior Advisor to the Romney for President Campaign, although he speaks today in his individual capacity.

In 2005, I spent the summer at the Alexandria Detention Center outside of Washington. I could tell you that I went for the food, and that I was misled. I actually went to protect a source, who had not given me permission, or so I thought, to disclose his identity. I was determined to stay in jail until either I obtained a waiver that would enable me to identify him or the government relented. Fortunately, after eighty-seven days, I obtained the waiver. In the meantime, I learned a lot about jail, and about journalism, and I became even more of a fanatic about the need for journalists to protect sources.

That is what is at stake since Julian Assange and WikiLeaks are being hounded, persecuted, and threatened with violations of the Espionage Act for doing what most of us do in different ways, shapes, and forms every day. I want to address the climate in which journalists are now operating to illustrate why I feel as strongly as I do about a man whom I personally find obnoxious.

Many of us were very optimistic that press freedom would expand back in 2008 when presidential candidate Barack Obama promised to increase transparency and reduce government secrecy. Unfortunately, and perhaps this comes with the territory, President Obama has continued a trend toward greater government secrecy, even compared to previous administrations. According to the Information Security Oversight Office, the federal agency that provides oversight of the government’s classification system, the annual cost of classification has risen to more than $10.7 billion – crossing the $10 billion threshold for the first time – because many government decisions that used to be unclassified are now being classified as secret. There were approximately 224,000 classified documents in 2010, which is a 22 percent increase from 2009.

Freedom of Information Act requests are also increasing in response to growing government secrecy. There were more than a half-million requests in 2010, or 40,000 more than there were in 2009; but our government bureaucracy responded to 12,400 fewer requests than in the previous year. So more requests are being made, and fewer of them are being processed.

It gets worse: this administration has invoked the state secrets privilege more than any other in modern times, including President Bush’s administration, rather than respond to requests for classified information. President Obama has applied the privilege with respect to National Security Agency surveillance, illegal wiretapping, and other activities, such as extraordinary rendition and assassination. A claim of state secrets privilege shuts down litigation; it shuts down civil challenges.

Despite his campaign promise to protect whistle-blowers, Obama has one of the worst records in modern times of investigating, persecuting, and taking judicial action against government whistle-blowers. The president is now threatening to use the 1917 Espionage Act against people who not only leak but publish information. Your right to know depends a lot on investigative journalists, which means that people like me have to be willing to go to jail to protect sources. Five years after I went to jail, Congress still has not passed the legislation that Mr. Obama, as both a senator and a presidential candidate, promised to enact to protect journalists who refuse to disclose sources to grand juries. Forty-nine states in this country have state statutes, but we lack a federal statute. And when national security information is at issue, most of the cases that challenge our right to keep these sources secret are considered in federal courts.

We desperately need this legislation. In the wake of the WikiLeaks investigation, President Obama has done nothing to help it through the Senate. It passed in the House but is dead in the water in the Senate, thanks to Julian Assange and the president’s lack of enthusiasm for the legislation. Here, I might point to a June 2011 column that Geof Stone, our distinguished moderator, wrote for The New York Times on the difference between what President Obama has done and what he promised in the area of transparency.

Some people will tell you that Julian Assange is not a journalist, that he does not perform like or characterize himself as a journalist. It would be easier for people like me if that were so. But Assange describes himself as a journalist and WikiLeaks as a nonprofit media organization, and he claims journalistic and ethical privileges. You may not agree with his methods, but he is responsible for releasing more information about how our government works – much of it helpful to public understanding and some of it dangerous – than any other single journalistic organization in the country. The fact is, almost every major publication in this country cooperated with Assange, in one way or another, to help him get the information he had obtained out. So if he is vulnerable, then we all are vulnerable, and if he can be taken to court and arrested for violating the Espionage Act when he is not even an American citizen, then no American journalist is safe.

I would prefer to think of Assange as another category of journalist, but that is not possible in the Internet age. After all, the First Amendment was enacted to protect not the big, rich, powerful organizations that can afford to fight legal cases, but the lone pamphleteer. Assange is the lone pamphleteer of the Internet era. Bill Keller, the former executive editor of The New York Times, said that it was hard to conceive of a prosecution against Julian Assange that would not enable a stretching of the law that could be used against The New York Times as well. Think about what we know, and how we know it, whether through Bob Woodward and his insightful books, which are filled with classified information, or my humble efforts to inform Americans about biological weapons and the secret bio-defense research that our country conducted for years. None of this information would be available if someone had not decided to talk about classified information. So it is not a happy task, but an essential one, that I rise to defend Julian Assange and WikiLeaks. I hope that you will support me because, however unpopular journalists may be, a government without restraint, and without transparency, is dangerous.

In contrast with my fellow panelists, I do not think that the disclosure of classified information has ever caused significant harm to American foreign policy or national security objectives. Indeed, in many cases, it has helped attain those objectives. On the other hand, I do not think that the government’s efforts to stifle revelation of classified material are consequential. By my estimation, in the course of about four years WikiLeaks has published at least 750,000 documents, many of which are U.S. classified. What has been the harm to American foreign policy or national security? I think there has actually been a net benefit. Consider, for example, that many of the leaked documents reveal abuses perpetrated by U.S. or allied military forces in Iraq and Afghanistan. They focus on civilian casualties, such as the U.S. helicopter attack in Baghdad that Geof mentioned. Everyone knows that abuses happen frequently in war, and that many civilians are killed. Before the leaks, the prevalence of civilian casualties in Iraq and Afghanistan was no secret. The leaks show that while the number of casualties was somewhat higher than people had believed, the situation was not nearly so bad as it could have been. Assuming that WikiLeaks has access to all that we know about civilian casualties in these wars, the leaks reveal that they were somewhat worse than they had been represented to be, but not greatly so.

The diplomatic leaks are also valuable in the sense that they tell foreign governments what we actually think but cannot say, and that is very useful. U.S. criticism of the Mexican Army’s handling of the war on drugs, which Geof mentioned, is a good example. Certainly, there are sacrificial lambs when diplomatic communications are published: the Mexican ambassador was one; so are the generals who have been fired because they said unpleasant things about Pakistan. But the fact that the Mexican government knows what we think about its Army, and that Pakistan knows what we think about its relations to the Taliban and to China, is all to our advantage. The United States is still very powerful, and having these foreign governments know that we know that they are undermining our interests is useful for us. One could make an analogy to mutual espionage during the Cold War, in which our spying on the Soviet Union and their spying on us reduced the likelihood of actual war. What we said publicly about our intentions and capabilities, and vice versa, had no credibility; but when each country found out what the other’s real intentions and capabilities were, both could make decisions on the basis of accurate information, and not blunder into war because of misunderstanding – a common precipitant of wars.

The situation is different in the second example that Geof gave, regarding the fellow in Zimbabwe who was endangered because of the leaks. Clearly, we want to protect the safety of individuals, and WikiLeaks apparently made some effort to shield the identities of persons who might be endangered by the revelation. That is one important interest, and there are also some military secrets about plans, weapons design, and capabilities that we need to keep secret if we can. But these categories of intelligence make up a very small fraction of all classified information.

Overclassification is extraordinarily rampant, and because it is a response to compelling bureaucratic motivations–one being to avoid embarrassment–I do not think anything can be done about it. Second, classification increases bureaucrats’ sense of self-importance. Everyone wants to be privy to secrets, for if you know a lot of things that other people do not know, it makes you feel important. But most significant, though I think you have to work in government to understand this, is that agencies have compelling incentives to conceal information from other agencies. Turf warfare is pervasive in government because government agencies cannot sell turf. In private enterprise, if, say, a competitor wants your patents, you can sell them to him. But you cannot sell turf if you are a government bureaucrat; you can only lose turf, which means suffering uncompensated loss. When I was Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, I had a vicious battle with the Chief Judge of the District Court because I wanted access to one of the courtrooms on “his” floor of the courthouse. He did not want the Court of Appeals on that floor, because if he permitted that encroachment on his turf, where would the process stop? His court could (figuratively speaking) end up out on the street. At one point, as we were fighting over this absurdity, he said to me, “Look, if the newspapers got hold of this, it would be an embarrassment.” I said, “Let it happen; I’m not backing down.” Eventually, we managed to compromise.

Geof mentioned some of my academic work on national security intelligence, which allowed me to meet a lot of people in various agencies. I was once driven to an agency to give a Law Day talk, and the staff member escorting me mentioned that the director of the agency would be happy to answer any questions I might have. When I told her that I did not have a security clearance, she said that it didn’t matter; because I was a judge, they would tell me anything. When I arrived, they gave me a tour and in the course of it showed me several classified documents. What was interesting was that there was no reason why most of those documents should have been classified. But not all. One document was classified because it was a list of U.S. sites ranked from “most likely” to “least likely” to be the target of a terrorist attack. That is a document you would not want terrorists to access; inevitably, they would choose to attack the least-protected site, the one at the bottom of the list. So there is government information, involving not only identities of people who might be in danger but also information that would actually be valuable to an enemy to know, that ought to be kept secret, but it makes up only a very small percentage of all classified documents.

I’ll add one more anecdote to illustrate the lengths to which government agencies will go in order to protect secret information. Suppose you work for one of the twenty or so U.S. national security agencies, and that someone from another agency wants access to information in one of your databases that is germane to his agency’s duties. The information is classified as top secret, so the agent presents his top-secret clearance. That top-secret clearance must be based on a national security polygraph test designed to weed out security risks. One such test is a “lifestyle” polygraph test, which tries to embarrass the subject by asking questions about personal topics, such as sex. You, the holder of the wanted information, may deny the agent access to your databases if his top-secret clearance is not based on a lifestyle polygraph test but merely on a “national security” top-secret clearance, in which case you will instead offer to look through your files for anything of interest, which you will put on a computer disk for him. But you will not let that person into your agency’s system. Such practices are endemic to the government; that will not change. But to some extent, there are genuine secrets in the sense of information that we need to keep secret in order to protect people or legitimate needs of national security.

The First Amendment as interpreted by the courts does not forbid overclassification as such. I do not want to seem cynical, but there are many exceptions to free speech, such as laws against libel and slander and the right to keep medical records private. The deliberations of judges and juries are an example of what government is permitted to keep secret merely or mainly to avoid embarrassment. There are further court-made First Amendment exceptions for military secrets, trade secrets, misleading advertising, product disparagement, copyright infringement, plagiarism, conspiracy, child pornography, solicitations for crime, harassment and bullying, and campaign contributions when made to the politicians themselves. So it’s a Swiss cheese, the First Amendment; if you want to add another hole for some category of national security secrets, that’s fine. What we call freedom of speech is something the Supreme Court has developed over two hundred years of purportedly interpreting a sentence in an eighteenth-century document. If we need to protect secrets, there is no constitutional impediment to doing so. But the problem of overclassification, which makes efforts to protect secrets look ridiculous, is deeply embedded in the way governments – not only our own – operate. And I do not think anything can be done about it.

The gravity of the issue of national security secrecy cannot be overstated. At stake, and I will make a different argument than my colleagues, is the personal safety of all Americans. Osama bin Laden may be dead, but Islamic radicals remain determined to strike the United States. Many of our young men and women are at war in Afghanistan and other battlefields abroad, and secrecy is often vital to the preservation of their lives. To keep our country secure, our government generates a great many secrets of many different kinds. We cannot publicize, among other things, all the intelligence methods by which we are tracking terrorists. We cannot reveal the vulnerabilities of our bridges, tunnels, and buildings. We have an absolute duty to keep secret information such as the blueprints for nuclear weapons or the formulas for producing aerosolized anthrax.

But equally at stake is the character of our democracy. We live in an open society in which secrecy is antithetical to the democratic ideal. Secrecy can be used as a cover for corruption and wrongdoing. We depend on a free press to provide us with information about what our government is doing in our name, including some of the things it is doing in secret. Indeed, much of what we read in the newspapers about foreign affairs is based on reporting about state secrets. A study by the Senate Intelligence Committee counted 147 separate disclosures of classified information that made their way into the nation’s top six newspapers in one six-month period alone. The regular publication of secrets is part of the American system, and that is the way it ought to be. But even as we want the press to report on secrets, it must do so under the rule of law. That is, the press – which certainly includes WikiLeaks &#8211 must be vulnerable to prosecution when it violates the laws governing secrecy. The First Amendment states that Congress shall pass no law abridging the freedom of speech or of the press, and Judge Posner has pointed to all the exceptions to that rule: for example, we cannot publish false advertising, and we are forbidden to yell “Fire!” in a crowded theater.

Congress has also passed laws that punish the publication of state secrets, and it has done so for the very same reason that we are prohibited from yelling “Fire!” when there is no fire: this type of speech can get people killed. Thus, the COMINT Act makes it a crime to publish classified information pertaining to communications intelligence; the Atomic Energy Act makes it a crime to publish classified information pertaining to the design of nuclear weapons; and the Intelligence Identities Protection Act makes it a crime to disclose the identities of undercover CIA agents. Although these laws are in tension with the First Amendment, no court has ever struck them down. They were passed because the American people, acting through their elected representatives, sought to protect themselves against anyone, including journalists, who would disclose government secrets to do us harm. Valid laws that would punish the press for publishing state secrets are on the books.

Does the existence of such laws mean that journalists should be prosecuted every time they publish a state secret? Absolutely not. That would be extremely foolish. It is widely recognized, as my colleagues have pointed out, that if the U.S. government uses the secrecy stamp promiscuously, it marks many items secret that should not be. The issue is not whether the press should always be prosecuted for publishing secrets. In almost all cases, it should not be. I myself published classified information when I was an editor at Commentary magazine, and I would do so again. The real question before us is whether the press can be prosecuted when it publishes secrets that place the country in danger. That is the question raised by WikiLeaks.

Such danger is not purely hypothetical. Not everyone with access to a printing press, or to the Internet, will always behave responsibly. There is no shortage of examples of real harm being done to our country through the disclosure or publication of leaks. During World War II – to take a famous case pertaining to this city – the Chicago Tribune, under the auspices of Colonel Robert McCormick, published a story suggesting that the United States had broken Japanese naval codes. If Japan had acted on that story and changed its codes, the United States would have lost the war: we would have been deprived of a critical window into Japanese planning, without which thousands, if not tens of thousands, of American servicemen would have lost their lives. In 1973, a magazine called Counterspy began to publish the names of hundreds of CIA officers around the world. In 1975, one of those officers, Richard Welch, was assassinated by Greek terrorists – just after Counterspy had outed him as the cia station chief in Greece. In 2006, The New York Times chose to reveal the workings of a counterterrorism program that tracked the movement of al-Qaeda funds. The program was lawful, operating under valid warrants, and by several accounts, the story caused one of our principal sources of al-Qaeda-related intelligence to dry up.

Now we have WikiLeaks. In the name of transparency, WikiLeaks has indiscriminately dumped thousands of, in many cases, entirely unredacted secret documents onto the Internet. Many of them are innocuous. Some clearly help us better understand our country’s role in the world, but others do serious harm. One WikiLeaks document described the jamming devices employed by American soldiers in Iraq to scramble the signals used by insurgents to detonate roadside bombs from a remote location. The document gave specific information about how the jammers functioned, what their rate of power was, and which frequencies they blocked. Is there any reasonable person who believes that it should be legal to publish the secret countermeasures our soldiers use to keep from getting blown up on the battle- field? Should the press be free to reveal the identities of undercover CIA operatives? Is there any person in this room who believes that the press should be free to publish the technical secrets of weapons of mass destruction, or the recipe for something like aerosolized anthrax?

The key question is, who gets to decide? In a democracy, the people get to decide, and what the American people have decided, acting through laws passed by their elected representatives, is that the publication of certain kinds of secrets warrants prosecution. They have decided, in other words, that the First Amendment is not a suicide pact.