(updated below – Update II – Update III)
In The New York Times today, Mark Mazzetti and Dexter Filkins expose very sensitive classified government secrets — and not just routine secrets, but high-level, imminent planning for American covert military action in a foreign country:
Senior American military commanders in Afghanistan are pushing for an expanded campaign of Special Operations ground raids across the border into Pakistan’s tribal areas, a risky strategy reflecting the growing frustration with Pakistan’s efforts to root out militants there.
The proposal, described by American officials in Washington and Afghanistan, would escalate military activities inside Pakistan, where the movement of American forces has been largely prohibited because of fears of provoking a backlash.
The plan has not yet been approved, but military and political leaders say a renewed sense of urgency has taken hold, as the deadline approaches for the Obama administration to begin withdrawing its forces from Afghanistan.
America’s clandestine war in Pakistan has for the most part been carried out by armed drones operated by the C.I.A. . . . But interviews in recent weeks revealed that on at least one occasion, the Afghans went on the offensive and destroyed a militant weapons cache.
The decision to expand American military activity in Pakistan, which would almost certainly have to be approved by President Obama himself, would amount to the opening of a new front in the nine-year-old war, which has grown increasingly unpopular among Americans. . . . [O]ne senior American officer said, “We’ve never been as close as we are now to getting the go-ahead to go across.”
The officials who described the proposal and the intelligence operations declined to be identified by name discussing classified information.
Often in debates over the legitimacy of publishing classified information, the one example typically cited as the classic case of where publication of secrets is wrong is “imminent troop movements.” Even many defenders of leaks will concede it is wrong for newspapers to divulge such information. That “troop-movement” example serves the same role as the “screaming-fire-in-a-crowded-theater” example does in free speech debates: it’s the example everyone is supposed to concede illustrates the limits on the liberty in question. While the ground operations in Pakistan revealed by the NYT today don’t quite reach that level — since there is not yet final presidential authorization for it — these revelations by the NYT come quite close to that: ”an expanded campaign of Special Operations ground raids across the border into Pakistan’s tribal areas.”
Indeed, the NYT reporters several times acknowledge that public awareness of these operations could trigger serious harm (“inside Pakistan,  the movement of American forces has been largely prohibited because of fears of provoking a backlash“). Note, too, that Mazzetti and Filkins did not acquire these government secrets by just passively sitting around and having them delivered out of the blue. To the contrary: they interviewed multiple officials both in Washington and in Afghanistan, offered several of them anonymity to induce them to reveal secrets, and even provoked officials to provide detailed accounts of past secret actions in Pakistan, including CIA-directed attacks by Afghans inside that country. Indeed, Mazzetti told me this morning: ”We’ve been working on this for a little while. . . . It’s been slow going. The release of the AfPak review gave a timeliness to the story, but this has been in the works for several weeks.”
In my view, the NYT article represents exactly the kind of secret information journalists ought to be revealing; it’s a pure expression of why the First Amendment guarantees a free press. There are few things more damaging to basic democratic values than having the government conduct or escalate a secret war beyond public debate or even awareness. By exposing these classified plans, Mazzetti and Filkins did exactly what good journalists ought to do: inform the public about important actions taken or being considered by their government which the government is attempting to conceal.
Moreover, the Obama administration has a history of deceiving the public about secret wars. Recently revealed WikiLeaks cables demonstrated that it was the U.S. — not Yemen — which launched a December, 2009 air strike in that country which killed dozens of civilians; that was a covert war action about which the U.S. State Department actively misled the public, and was exposed only by WikiLeaks cables. Worse, it was The Nation‘s Jeremy Scahill who first reported back in 2009 that the CIA was directing ground operations in Pakistan using both Special Forces and Blackwater operatives: only to be smeared by the Obama State Department which deceitfully dismissed his report as “entirely false,” only for recently released WikiLeaks cables to confirm that what Scahill reported was exactly true. These kinds of leaks are the only way for the public to learn about the secret wars the Obama administration is conducting and actively hiding from the public.
The question that emerges from all of this is obvious, but also critical for those who believe Wikileaks and Julian Assange should be prosecuted for the classified information they have published: should the NYT editors and reporters who just spilled America’s secrets to the world be criminally prosecuted as well? After all, WikiLeaks has only exposed past conduct, and never — like the NYT just did — published imminent covert military plans. Moreover, WikiLeaks has never published “top secret” material, unlike what the NYT has done many times in the past (the NSA program, the SWIFT banking program) and what they quite possibly did here as well. Mazzetti this morning said in response to my question about that: ”not sure on the classification, although I think all of the special operations activity is usually given Top Secret designation.”
Does Dianne Feinstein believe that Mazzetti, Filkins and their editors should be prosecuted under the Espionage Act? Do Joe Biden and Mitch McConnell believe these two reporters are “high-tech terrorists?” Is Eric Holder going to boast about the aggressive actions his DOJ is taking to criminally investigate the NYT for these disclosures?
After all, which WikiLeaks disclosure has ever helped the Taliban and Al Qaeda as much as announcing that the U.S. intends escalated ground operations in Pakistan? How can the acts of WikiLeaks and the NYT possibly be distinguished? Last week, Rachel Maddow was on David Letterman’s show, laughed when Letterman denounced Assange as “creepy,” and — while expressing concerns both that the U.S. Government over-classifies and doesn’t safeguard its secrets with sufficient care — disparaged WikiLeaks this way:
I think he is a hero in his own mind, which makes me pretty suspicious. … We should not have freelancers from other countries making a decision about what gets declassified by our government. Our government should be better about it, but I don’t want random Australians deciding for me. [audience laughs and cheers appreciatively].
Is that really a cogent distinction? It’s dangerous or even possibly a serious crime when one of those menacing foreigners (a “random Australian”) or “freelancers” exposes U.S. government deceit and corruption, but it’s acceptable and legal when true Americans or a large American media corporation (such as NBC News) does it? I’m quite certain there are no such distinctions in the law. Beyond that, non-”freelance” American news organizations haven’t exactly covered themselves with glory when making such judgments; ask Judy Miller and Michael Gordon about that, or Pat Tillman, Jessica Lynch, Wen Ho Lee, Steven Hatfill and so many more. What determines whether something is a crime is the actions of the person — not their nationality or how large of a corporation employs them.
Also, for those of you supportive of the prosecution and oppressive detention of Bradley Manning: should the government do everything possible to discover the identity of the military and government officials who spoke with Mazzetti and Filkins about these plans? The Obama DOJ recently revitalized an abandoned Bush-era subpoena issued to James Risen to force him (ultimately upon pain of imprisonment) to reveal his source for a story he wrote; should the Obama DOJ do the same here to Mazzetti and Filkins? And if they do discover their sources, should those officials be arrested and prosecuted for espionage, and held in 23-hour-per-day solitary confinement for months and months while awaiting their trial?
On some perverse level, I at least respect the intellectual consistency of those like Joe Lieberman, Rep. Pete King, and multiple Bush officials and followers who not only demand that WikiLeaks and Assange be prosecuted, but also that newspapers who do the same thing also be similarly punished. That view is odious and dangerous, but it’s the only intellectually coherent position. By contrast, those who are cheering while the Obama DOJ tries to imprison Assange — without also demanding that Mazzetti and Filkins occupy a cell next to him (and that their high-level sources be found and punished the way Manning is) — are advocating quite incoherent and unprincipled positions and should ask themselves why that is.
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I was on Globo News in Brazil last night discussing the threats to press freedom posed by the Obama administration’s attacks on WikiLeaks; the program is in Portuguese, but those who speak Spanish (in addition, obviously, to Portuguese) should be able to understand it. In the last few days, I also did interviews with Michelangelo Signorile and Scott Horton regarding WikiLeaks, Manning and related issues which can be heard at those links.
UPDATE: In Salon today, Michael Lind advances a vapid and ill-supported argument. He argues generally that the U.S. is becoming a “banana republic” because the rule of law is no longer applied to favored factions which commit crimes: so far, so good, as that is the topic of my forthcoming book. But then to show how fair-minded he is, he argues that both the Left and Right are guilty of this, and one of his prime examples of the Left’s guilt in this regard is this:
Most of the American left has made a hero of Julian Assange, the founder of WikiLeaks. For Assange’s admirers, the embarrassment that his publication of stolen government and corporate documents produces for government policymakers, bankers or corporate executives whom they dislike more than compensates for the theft of classified or private information on a grand scale. The idea that the law in its majesty is supposed to protect the bad as well as the good apparently is rejected by those who celebrate information vandalism, as long as its victims are the State Department or big banks.
There’s just one little fact missing from Lind’s argument: the identification of any laws which WikiLeaks and Assange supposedly broke. The claim on the Left — at least that I’ve heard — is not that Assange broke the law but shouldn’t be convicted because he is achieving good things. The claim is that what he did isn’t against the law at all, and that there’s no way to distinguish what he did from what investigative journalists do on a daily basis. If Lind wants to disparage the Left as renouncing the rule of law by defending WikiLeaks despite the “crimes” it’s committing, he ought to at least pretend to identify what these crimes are (“information vandalism” is not a crime, nor is publishing classified information). He doesn’t, and can’t, identify any because there are none. Ironically, Lind is guilty of exactly that which he is condemning: namely, deciding what is and is not a crime based on his likes and dislikes (“information vandalism!”) rather than what the law actually says.
UPDATE II: Why aren’t Visa, MasterCard, Paypal, their web hosting company and various banks terminating their relationships with The New York Times, the way they all did with WikiLeaks: not only for the NYT‘s publication of many of the same diplomatic and war cables published by WikiLeaks, but also for this much more serious leak today in which WikiLeaks was completely uninvolved? (h/t Lobe Log)
UPDATE III: A top aide to German Prime Minister Angela Merkel today explained that Germany does not view WikiLeaks as a threat at all. Indeed, the official, Interior Minister Thomas de Maiziere, said that while WikiLeaks was “irritating and annoying,” the true threat comes from having governments be able to pressure private corporations (such as MasterCard, Amazon, Paypal) to terminate relationships with entities the government dislikes (“he said he was opposed to financial entities cutting off payments to WikiLeaks under pressure from Washington. ‘If this occurs under pressure from the U.S. government, I don’t think it is acceptable’.”). The statements from the German government follow the praise for WikiLeaks and Assange previously voiced by several world leaders, including Brazilian President Lula da Silva. That’s how mature, non-hysterical, non-exploitative political leaders respond to a disclosure group like WikiLeaks.