WikiLeaks' Document Dump Sparks Debate

The website WikiLeaks published tens of thousands of classified U.S. military documents on the Internet on July 25, 2010, igniting a debate about leaks, law, ethics, journalism, and national security on the digital frontier.

The release of between 75,000 and 92,000 classified field reports filed by American troops in Afghanistan between January 2004 and December 2009 was coordinated by WikiLeaks with The New York Times, The Guardian of London, and German magazine Der Spiegel. The Times reported that WikiLeaks gave the news organizations access to the reports several weeks before posting them online on the condition that they not report on the material before July 25, the day the website went public with them. According to WikiLeaks, the reports were written by soldiers and intelligence officers and primarily describe lethal military actions, but also include intelligence information and reports of meetings with political figures. The Times described the documents as "an unvarnished, ground-level picture of the war ... a daily diary" of military actions in Afghanistan, documenting the war "in mosaic detail." The Guardian said "the war logs--written in the heat of engagement--show a conflict that is brutally messy, confused and immediate. ... [I]n some contrast with the tidied-up and sanitised 'public' war, as glimpsed through official communiques as well as the necessarily limited snapshots of embedded reporting."

Drawing from the documents, the news organizations reported that the American military had long suspected that an ally, the Pakistani intelligence agency Inter-Services Intelligence (ISI), had secretly supported the insurgency in Afghanistan. The news organizations also disclosed the previously unreported fact that Taliban fighters have shot at allied aircraft using portable heat-seeking missiles, and that the use of unmanned drones was increasing in spite of a record of success that is not as impressive as military officials reported. Many of the documents also provided previously unreported details on incidents involving friendly fire accidents and the killing of Afghan civilians.

Some argued that although the documents provided unprecedented detail on the war in Afghanistan, they did not actually reveal news that had not previously been reported. According to The Washington Post on July 27, President Barack Obama said that the documents illustrated why he had urged a change in strategy there since before taking office, and that their release did not raise any fundamentally new issues. Howard Witt, senior managing editor of Stars and Stripes, said in a July 30 commentary on the Editor & Publisher website that "we didn't pursue the WikiLeaks wares because we didn't see much new or particularly revelatory that we and many others haven't already been reporting for months."

Nevertheless, the document release renewed a debate about the controversial nature of WikiLeaks and its broad anti-secrecy agenda. The organization, online at http://wikileaks.org/, calls itself "a multi-jurisdictional public service designed to protect whistleblowers, journalists and activists who have sensitive materials to communicate to the public." It supports what it calls "principled leaking" in order to "help[] every government official, every bureaucrat, and every corporate worker, who becomes privy to embarrassing information that the institution wants to hide but the public needs to know. What conscience cannot contain, and institutional secrecy unjustly conceals, WikiLeaks can broadcast to the world." The site has a nine-member international advisory board, but no formal ownership. Users anonymously submit documents to the site's editors, who digitally encrypt them and scrutinize them for forgery before posting them and allowing users to disseminate and discuss them.

WikiLeaks has gained notoriety for other high-profile records releases. In April 2010, it released classified video from a U.S. military helicopter as it shot and killed a Reuters photographer in Baghdad in July 2007. WikiLeaks titled the video, posted via YouTube, "Collateral Murder." The site has also released rules of engagement for U.S. troops and operating manuals for the Guantanamo Bay military prison. (For a recent look at media access at Guantanamo, see "Limits Persist on Media Access to Guantanamo Proceedings" on page 13 of this issue of the Silha Bulletin.) In February 2008 a federal judge in California issued and then reversed an injunction that required the company that registered WikiLeaks' domain name to lock and disable the site. (See "Web Site Fights Off Federal Injunction" in the Winter 2008 Silha Bulletin.)

Julian Assange, WikiLeaks' editor in chief and spokesperson, told The Guardian in an interview that the "nearest analogue" to the Afghan war documents the website published "is the Pentagon Papers"--the enormous classified Department of Defense report on Vietnam that defense contractor Daniel Ellsberg leaked to The New York Times in 1971, exposing previously unknown details about how that war was conducted. However, Assange said a key difference is that the Afghan war reports are all online and immediately available worldwide, enabling people to comment on and discuss them via the Internet. According to The Washington Post on July 27, Ellsberg said "the parallels are very strong," between the Pentagon Papers and the Afghanistan war reports, calling the release "the largest unauthorized disclosure since the Pentagon Papers. In actual scale, it is much larger, and thanks to the Internet, it has moved [around the world] much faster."

Some commentators said the incident illustrated how WikiLeaks has emerged as a different and powerful type of media organization. Steve Myers, online managing editor for the Poynter Institute, in a July 28 post on Poynter.com, called WikiLeaks an "information broker that collects secrets and negotiates how they will be revealed." This role, Myers argued, has created a shift in the balance of power between would-be sources of sensitive or classified information and the traditional news media that vet sources and publish secrets. According to Myers, "in inserting itself between source and publisher, WikiLeaks has shifted power away from the monoliths that once determined what is news and toward the people who, before the Web, would have been stopped in the newspaper lobby before they could see a reporter." Media critic and New York University journalism professor Jay Rosen, in a July 26 post on his blog PRESSthink, said WikiLeaks' intervention between the leak's source and the Times, Guardian, and Der Spiegel created an "effective ... combination." The information is released in a form that is "vetted and narrated to gain old media cred," Rosen said, as well as in full text on the WikiLeaks website, "which corrects for any timidity or blind spot the editors at Der Spiegel, The Times or the Guardian may show."

Commentators highlighted the role traditional news media play in the process of vetting documents. Ellsberg observed in an interview with The Wall Street Journal Law Blog posted July 26 that the size of the leak--which was much greater than the 7,000-page Pentagon Papers--meant that it might not have been vetted carefully. "To put out such a large amount of material is of some risk if you haven't read it all," said Ellsberg.

According to Myers, "in handing these [journalists] the raw material, WikiLeaks obviously made their job easier. But with WikiLeaks standing between them and the primary source, the journalists' work was harder, too" because it limited what journalists could verify because the journalists did not have direct contact with the source. "And though they could check what was in the documents, they don't know what was missing--documents that could have provided exculpatory evidence or presented a more mixed picture," Myers wrote.

Myers wrote that Times Executive Editor Bill Keller told him the fact that a source might have an agenda "doesn't invalidate the information they provide us. If we refused to work with sources whose motivations we didn't share, a lot of important stories would go untold. The critical thing is what we do with the material--check its authenticity, draw our own conclusions from it, put it in context, and lay it all out for readers on our terms, not the source's terms."

In the Times coverage on its website, the newspaper shared details about how the information was obtained and was verified. The Times also provided a "note to readers" discussing the costs and benefits of publishing the information, explained what types of information it had decided to redact and why, and offered a separate story about WikiLeaks that provided details about the organization and its motivations. Similarly, The Guardian provided a video on its website titled "How to read the logs" that explained "what is in the logs and how the Guardian is using them."

Meanwhile, Rosen observed that the "stateless" status of WikiLeaks--its servers are based all over the world, making posts and their sources nearly impossible to trace--means that "just as the Internet has no terrestrial address or central office, neither does Wikileaks. ... This is meant to put it beyond the reach of any government or legal system."

Whether or not it is under the jurisdiction of U.S. courts, media law professors and lawyers said that WikiLeaks would probably not face a successful prosecution or lawsuit for publishing the classified documents. In a July 26 interview with the Wall Street Journal Law Blog, First Amendment scholar Fred Schauer said that important U.S. Supreme Court rulings "all go in the direction" of the conclusion that WikiLeaks could probably avoid criminal or civil liability unless the site was "involved in getting the material in the first place." The Law Blog cited Landmark Communications v. Virginia, 435 U.S. 829 (1978) and Bartnicki v. Vopper, 532 U.S. 514 (2001), two cases that support the proposition that a publisher cannot be held liable for publishing information in the public interest illegally obtained by a third party. However, Schauer said "there's gray area on what's proper and improper."

First Amendment scholar Jack Balkin told the Law Blog that even if the federal government were able to gain jurisdiction over the multinational WikiLeaks, it would be difficult to win a judgment that could survive a standard under the First Amendment, established in cases like the Pentagon Papers case, that demands that the government prove that the prevention or compelled removal of information is "absolutely necessary to prevent almost immediate and imminent disaster. It's an extremely high standard."

In a July 28 interview, Wall Street Journal editor Alan Murray asked prominent First Amendment lawyer Floyd Abrams whether WikiLeaks is "protected by the First Amendment." Abrams said, "I think most of what they do would be. [But] I don't know and I bet they don't know if this mass of material is genuinely harmful to national security. That's one of my problems with their modus operandi. ... My concern is that there are no editors apparently involved here; this is not a journalistic process."

Most critics did not focus on legal concerns, but rather on political or ethical ones, based either on the potential for harm created by the publication of the documents or on WikiLeaks' motives and methodology. The Washington Post reported July 26 that White House national security adviser James Jones said "the United States strongly condemns" the disclosure because it "could put the lives of Americans and our partners at risk, and threaten our national security." Defense Department Press Secretary Geoff Morrell asked WikiLeaks to "do the right thing" and "honor ... and comply with our demands" to remove the documents from its website and return them to the U.S. military, according to The New York Times on August 5.

The Wall Street Journal reported on August 9 that five human rights groups--the Afghan Independent Human Rights Commission, Amnesty International, The Campaign for Innocent Victims in Conflict, the Open Society Institute, and the International Crisis Group--sent a letter to Assange and WikiLeaks asking them to remove the names of Afghan civilians published in the documents in order to protect people who have helped U.S. and allied forces from reprisals. Assange responded by asking that the human rights groups provide resources to help with a review and removal of names, the Journal reported.

On August 12, international press freedom group Reporters sans Frontieres (RSF or Reporters without Borders) posted an "open letter" to Assange on its website, which said "revealing the identity of hundreds of people who collaborated with the coalition in Afghanistan is highly dangerous." The letter also disputed WikiLeaks' motive, to "end the war in Afghanistan" by publishing the documents. "[T]he US government has been under significant pressure for some time as regards the advisability of its military presence in Afghanistan, not just since your article's publication. ... Meanwhile, you have unintentionally provided supposedly democratic governments with good grounds for putting the Internet under closer surveillance," the letter said.

Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy and author of the blog Secrecy News, criticized WikiLeaks along similar lines as the U.S. government and rights groups. In an August 16 blog post, Aftergood quoted Rep. Rush Holt (D-N.J.), whom he called "a persistent critic of overclassification" and who voted against funding for the Afghanistan war, as saying he had reviewed the leaked documents and, after doing so, "I have concluded that their release could indeed cause real harm to real people."

Moreover, Aftergood said, "one initial response to WikiLeaks' clumsy disclosure has been to bolster public support of the classification system, which was presumably not the intended result." Aftergood cited a July 30-31 Rasmussen poll wherein 67 percent of respondents endorsed the view that "when media outlets release secret government documents relating to the War in Afghanistan [they are] hurting national security."

Aftergood also criticized WikiLeaks' overall approach. In a July 30 interview on WNYC radio's "On The Media," Aftergood said, "I think they have a long ways to go in developing a code of conduct. I would also say that in the U.S., the political process is still flexible enough that it is possible to put forward an argument for a change in policy [toward declassification] and to see that change put into practice. ... I look with a little bit of concern at the broadsides that WikiLeaks is launching at the classification system. They seem oriented not towards fixing it but towards defeating it."

The New York Times reported that before writing about the documents or publishing them, editors told the Obama administration about its intent to do so. Yahoo! News blogger Michael Calderone reported in a July 26 post that Times Washington Bureau Chief Dean Baquet said, "we did it to give them the opportunity to comment and react. They did. They also praised us for the way we handled it, for giving them a chance to discuss it, and for handling the information with care. And for being responsible."

In a July 25 "Talk to the Newsroom" online column on the Times website, Keller, responding to a reader query about the discussions, said "White House officials, while challenging some of the conclusions we drew from the material, thanked us for handling the documents with care, and asked us to urge WikiLeaks to withhold information that could cost lives. We did pass along that message."

Although WikiLeaks did not discuss the initial reports it published with the White House or Pentagon prior to their publication, when it later announced that it was preparing to publish 15,000 more documents, it sought some government input. The New York Times reported August 18 that Assange told The Associated Press (AP) that the Pentagon had shown interest in the group's request for help vetting the new documents in order to protect Afghans who had assisted in the war effort. But according to the Times, Pentagon officials denied any plans to help vet material, directing reporters to an August 16 letter from Pentagon General Counsel Jeh Johnson to WikiLeaks lawyer Timothy Matusheski. "The Department of Defense will not negotiate some 'minimized' or 'sanitized' version of a release by WikiLeaks of additional U.S. government classified documents," Johnson wrote. The letter also said Matusheski missed an August 15 conference call on the issue. The Times reported that Morrell said the Pentagon's postion had not changed: "We are willing to discuss with them how they can return the stolen documents and expunge them from their records."

Another result of the WikiLeaks controversy may be a narrowing of the federal journalists' shield law currently before Congress. The bill, S. 448, titled The Free Flow of Information Act of 2009, would provide a qualified limit on the federal government's power to compel journalists to testify or disclose their confidential sources or information in civil or criminal proceedings. It was passed by the Senate Judiciary Committee in December 2009. The AP and First Amendment Center reported August 5 that Sen. Charles Schumer (D-N.Y.), one of the bill's sponsors, announced plans to add an amendment that would ensure that a website like WikiLeaks would be exempt from the bill's protection. "Neither WikiLeaks, nor its original source for these materials, should be spared in any way from the fullest prosecution possible under the law," Schumer said in an August 4 press release, available on his website. "Although the bill in no way shields anyone who broke the law from prosecution, we are going the extra mile to remove even a scintilla of doubt."
The Reporters Committee for Freedom of the Press (RCFP) reported August 4 that "it is not clear that a U.S. federal subpoena could even be served on the website, which bases its operations in Iceland, Sweden and other locations." (For more information on the federal shield law, see "Shield Law Bills Introduced Again in U.S. House and Senate" in the Winter 2009 issue of the Silha Bulletin, and "House Passes Federal Reporter Shield Law" in the Fall 2007 Bulletin.)

Paul Boyle, senior vice president of the Newspaper Association of America, told the RCFP, "under the [original] bill, if the federal government could somehow claim jurisdiction over WikiLeaks and issue a subpoena to find out more information about a source, WikiLeaks would not be able to quash the subpoena as there are broad national security exceptions to the protection."

Although the federal government is unlikely to prosecute or sue WikiLeaks over the publication of the classified documents, it is currently seeking to identify their source. The Wall Street Journal reported July 28 that a Department of Defense investigation has focused on Pfc. Bradley Manning, a military intelligence analyst already in detention in Kuwait since May 2010 under charges that he was responsible for the leak of the "Collateral Murder" video.

According to a July 6 press release from the United States Division Center at Camp Liberty in Baghdad, Manning is charged with violating Article 92 of the Universal Code of Military Justice for "violating a lawful Army regulation by transferring classified data onto his personal computer and adding unauthorized software to a classified computer system" and Article 134 for general misconduct--breaking federal laws against disclosing classified information.

The Wall Street Journal reported that although he was based in Iraq, according to a "defense official familiar with the investigation" Manning would have had access to the information published by WikiLeaks. The Journal reported that Manning had "Top Secret/SCI" clearance--which is above the "Secret" level--the level of the Afghanistan war documents and a clearance held by hundreds of thousands of people.

On June 7, Aftergood reported on Secrecy News that Manning's arrest was the "third known apprehension of a suspected leaker during the Obama Administration," which he contended "seems to reflect an increasingly aggressive response to unauthorized disclosures of classified information."

Silha Fellow and Bulletin Editor