Fact-free accusations about WikiLeaks

The false assertions made about the transparency group reveal unstated assumptions in our political discourse

Published August 24, 2010 12:25PM (EDT)

(updated below - Update II)

I realize that it shouldn't, but it nonetheless does still amaze me when I listen to professional political commentators make factual assertions without having the slightest idea or concern for whether they're actually true.  The Heritage Foundation's Conn Carroll was on BloggingheadsTV yesterday with The Atlantic's Conor Friedersdorf, and Carroll raised the article I wrote on Saturday regarding the Pentagon's refusal to help WikiLeaks redact the Afghanistan war documents in order to protect Afghan sources.  Carroll was beside himself that anyone could even suggest that the Pentagon ought to make recommendations for redactions -- apparently, the oh-so-righteous concern for the well-being of Afghan sources evaporates in the face of the desire to delegitimize WikiLeaks -- and in the course of expressing his uncontrolled outrage, said this, after Friedersdorf defended my argument:

Julian Assanage -- you know, molesting charges aside -- is a criminal.  He broke the law.  He is, you know, a murderer of American and Afghani people.  His carelessness has killed people.  Even besides that, he broke U.S. law.  Why -- [nervous cackling] -- just the very idea that Glenn thinks the Pentagon should cooperate with them blows my mind.

To say that these statements evince a reckless disregard for truth is to give them too much credit.  There is not a shred of evidence that any act WikiLeaks has undertaken -- including the release of the last batch of Afghan war documents -- "has killed people."  To say that Assange is "a murderer of American and Afghani people" is so far removed from reality, exhibits such an irresponsible detachment from the truth, that it's hard to express in words.  Even the Pentagon admits that there is no evidence whatsoever to support Carroll's factual claims.  From The Washington Post, August 11:  "'We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents,' [Pentagon spokesman Geoff] Morrell said."  It's plausible to speculate that WikiLeaks' disclosure creates some risk of future harm, but to assert that "American and Afghani people" have been killed by such disclosures is just a total fabrication.

It just genuinely baffles me how people like Carroll get themselves to run around spouting factual claims like this for which there is absolutely no basis and still maintain even the slightest amount of self-respect -- especially when the claims are as serious as those accusations.  Shouldn't there be some mechanism in the brain that first asks the person:  "before you say this, do you have any basis at all for making this claim?"  I realize that people who work as propagandists -- Carroll is employed by The Heritage Foundation -- consciously adjust their advocacy standards to promote desired ends, but still, I'm just always fascinated, perhaps naively so, by how that cognitive safeguard is so effortlessly evaded.

Carroll's emphatic decree that Assange "is a criminal" because he "broke U.S. law" is even more ignorant, though at least in an interesting and revealing way.  He's not alone in being unaware that the U.S. -- unlike many other countries -- does not have a general criminal prohibition on disclosing state secrets.  It is, of course, illegal for those with an affirmative duty to safeguard secrets (such as government and military employees) to leak certain categories of classified information, but it is generally not illegal for non-governmental third parties -- such as media outlets or private citizens -- to publish that information.  That's why it's extremely difficult to prosecute newspapers for publishing classified information -- such as when The New York Times published the Pentagon Papers or the story of Bush's illegal NSA spying program, or when Dana Priest exposed the CIA's network of secret black sites.  To simply assert that WikiLeaks or Assange clearly broke the law by publishing classified information -- despite the fact that they are not government employees -- is to exhibit a monumental ignorance of the subject matter on which one is opining.

There are legal theories under the Espionage Act of 1917 which, in some very narrow cases, can make it plausible to prosecute even non-governmental actors for publishing information, but doing so is very difficult.  The Bush DOJ tried and failed to invoke those theories to prosecute two AIPAC officials -- private American citizens -- who were accused of receiving classified information from a DoD official and then transmitting it to the Israeli Government and to various journalists.  The Pentagon official who leaked the classified information to AIPAC (Larry Franklin) was rather easily convicted -- because the criminal laws clearly applied to him as a government employee.  But it was far from clear that the AIPAC officials, as private citizens, had broken any laws.  

Indeed, it took an exotic interpretation of the Espionage Act even to prosecute them at all.  As The Post put it when the case was finally dismissed:  they "were the first civilians not employed by the government charged under the 1917 espionage statute."  Indeed, the very idea of criminalizing the mere receipt and transmission of classified information by non-government-employees is incredibly dangerous, as it would criminalize much of what investigative reporters do, which is why even harsh AIPAC critics -- such as myself -- found that AIPAC prosecution to be so chilling.  There are countries (such as Britain) that criminalize all disclosures of classified information, but the U.S. is not one of them.  In sum, anyone (such as Carroll) declaring that WikiLeaks clearly broke U.S. law -- as though there is no real dispute about it -- reveals that they have no idea what they're talking about.

What's most interesting to me about the certainty of Carroll and plenty of others that WikiLeaks broke the law is that Assange -- unlike the two AIPAC officials whom the Government was unable to convict -- is not even a U.S. citizen, and WikiLeaks is not an American organization.  Just consider the mindset implicit in this belief that they "broke U.S. law":  once the Pentagon decrees that something is secret, not only American citizens -- but every human being on the planet -- is thereby barred from talking about or disclosing it, upon pain of being declared a criminal.  What is the possible source of that asserted authority?  Just contemplate the imperial authoritarianism required to believe that.

As I've said many times, the criticism that WikiLeaks should have been more careful in redacting the initial release of documents out of concern for innocent Afghans is a reasonable (though sometimes exaggerated and hypocritical) one.  But the broader anger at WikiLeaks seems clearly grounded in its defiance of U.S. Government decrees over what may and may not be publicly aired.  Put another way, the insistence that WikiLeaks editors are "criminal" by virtue of their disobedience of Pentagon secrecy orders -- even though they're not American citizens and are not physically present in the U.S. -- appears driven by the belief that the U.S. Government has the right to extend its authority to the entire world, and that there are few worse crimes than challenging or subverting its power.  WikiLeaks publicizes information even though the U.S. Government said it should be kept secret!  That authority-revering mindset is disturbing enough when it's applied to American citizens (such as those on the Right who called for the prosecution of The New York Times for revealing the illegal NSA program), but when it's extended to the entire world -- anyone who defies the Pentagon is a criminal -- it's warped beyond belief.

* * * * *

I was on Al Jazeera yesterday debating WikiLeaks-related matters, along with WikiLeaks critic James Joyner and Italian investigative journalist Stefania Maurizi.  The debate, roughly 20 minutes long, begins at the 4:00 mark, and is amazingly constructive and civil; the contrast with most American television "debates" is striking and obvious: 


UPDATE:  Conn Carroll appears in comments to defend his statements, and in doing so, underscores how irresponsible, baseless, and reckless they were.  To justify his claim that Assange is a murderer and that "his carelessness has killed people," he inexplicably points to this August 2 Newsweek article discussing threats made against various Afghans and the killing of one.  But the article explicitly states:  "it is unknown whether any of the men were indeed named in the WikiLeaks documents."  Unless a person has absolutely no evidence for his accusation, why would he cite an article that expressly states that it does not constitute such evidence?  

Beyond that, the Pentagon's own spokesman said on August 11 -- nine days later -- that "we have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents," just as the Newsweek article states.  Does Carroll think the Pentagon is lying about that in order to protect its good friends at WikiLeaks?  If there really were someone killed as a result of the WikiLeaks disclosure, don't you think the DoD would be trumpeting that fact, rather than expressly denying that there's evidence for it?  At the very least, here's a nice rule of thumb:  if you're going to accuse someone of "murder," it's a good idea to be able to identify a victim.  

To justify his claim that WikiLeaks and Assange "broke U.S. law," Carroll points to this statutory provision, 18 U.S.C. 798.  But anyone who can read will immediately see that this statute does not criminalize the disclosure of classified information in general, but only a few, very narrow categories of information (i.e., cryptography, signals communication intelligence, or interception of foreign governments' communications) which plainly do not encompass the leak of the Afghan war documents.  This was all explained by The Washington Post's Dana Priest back in 2007 when, sitting next to Bill Bennett on Meet the Press, she explained why Bennett's call for the criminal prosecution of reporters who disclose classified information (such as she did in the CIA black site story) was based in pure ignorance (watch Priest's masterful performance beginning at 4:00):

PRIESTIt's not a crime to publish classified information.  This is one of those things Mr. Bennett keeps telling people that it is, but in fact, there are some narrow categories of information you can't publish -- certain signals communications intelligence, names of covert operatives and nuclear secrets.  Now, why isn't it a crime?  I mean, some people would like to make casino gambling a crime, but it is not a crime.  Why is [disclosing classified information] not a crime?  Because the Framers of the Constitution wanted to protect the press so that they could perform a basic role in government oversight, and you can't do that.  Look at the criticisms the press got on the Iraq War, that we did not do our job on WMD.  And that was all in a classified arena.  And to do our job, and I believe we should have done a better job, we would have found ourselves in the arena of classified information.

That's why virtually no discussions of the possibility of prosecuting WikiLeaks involve the provision Carroll cites, but rather involve this provision of the Espionage Act, which faces all of the problems I've identified above (and which failed in the AIPAC case).  There is simply no way to distinguish what Wikileaks did here in publishing this information from what many newspapers -- including The New York Times -- have done in countless cases by publishing classified information against the Government's will, including in this very case.  It's certainly possible that the Government will try to prosecute WikiLeaks -- they're now threatening to do  exactly that -- but anyone who claims that WikiLeaks clearly broke the law (particularly in a way that's different from what newspapers routinely do) is exhibiting raw ignorance about this topic.


UPDATE II:  Just to underscore a bit further the total lack of clarity surrounding the Espionage Act -- and the deep confusion on the part of those (like Carroll) who believe that publishing classified information is a crime, let alone clearly a crime -- consider what Patrick Fitzgerald said in his October, 2005, Press Conference, when explaining why he did not seek an indictment against the Bush officials who leaked classified information to the media:  i.e., that Valerie Plame worked for the CIA (h/t PowWow):

QUESTION:  You said that Valerie Plame's identity was classified but you're making no statements as to whether she was covert.  Was the leaking her identity, of and in itself, a crime?

MR. FITZGERALD: . . . . [A]ll I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act. That is a difficult statute to interpret. It's a statute you want to carefully apply. There are lots of -- I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information because they think that would convert that statute into what is in England, the Official Secrets Act.

Let me back up. The average American may not appreciate that there's no law that specifically just says if you give classified information to somebody else it is a crime. There may be an Official Secrets Act in England but there are some narrow statutes and there's this one statute that has some flexibility in it.

So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act. I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you pick the right case to charge that statute.

The case for prosecuting in the Plame matter was far more compelling because -- unlike in the WikiLeaks case -- (a) what was leaked (the name of a covert agent) is actually one of those categories which U.S. statutes, as Priest explain, specifically identifies; (b) the prospective defendants were U.S. citizens on U.S. soil; and, most important of all, (c) the prospective defendants were actually government employees, and thus vested with a specific duty not to disclose.  Yet Fitzgerald chose not to seek an indictment because, as he explained, there is no criminal prohibition generally on publishing classified information, and there are serious difficulties -- and risks -- in bringing such a prosecution under the Espionage Act.  A Washington Post Editorial from last week vehemently opposing the prosecution of Wikileaks explained those dangers (h/t susan sunflower):

[T]he government is entitled to enforce confidentiality agreements that bind many government employees, especially those who work on sensitive national security matters. . . .

But the government has no business going after third parties that obtain secret information without committing theft.  Media outlets do not have a legal duty to abide by the government's secrecy demands; in the past, publication of classified documents has yielded important disclosures in the public interest that caused no harm to national security.  The apparent irresponsibility of Mr. Assange and WikiLeaks should not be used to launch a prosecution that could chill legitimate news-gathering efforts.

The Post recognizes that if WikiLeaks is accused of committing a crime for what it did, that poses a serious threat to press freedoms, as there is no way to distinguish what newspapers -- including the Post -- regularly do in bringing transparency to government when they expose government secrets.  What Carroll and others are proposing -- prosecuting non-government-actors who publish government secrets -- is as dangerous and radical as it is legally dubious.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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