Goldsmith on WikiLeaks

by Kevin Jon Heller

Jack Goldsmith and I don’t agree with each other very often, so it’s worth noting that we have essentially the same reaction to WikiLeaks.  From Lawfare today:

I find myself agreeing with those who think Assange is being unduly vilified.  I certainly do not support or like his disclosure of secrets that harm U.S. national security or foreign policy interests.  But as all the hand-wringing over the 1917 Espionage Act shows, it is not obvious what law he has violated.  It is also important to remember, to paraphrase Justice Stewart in the Pentagon Papers, that the responsibility for these disclosures lies firmly with the institution empowered to keep them secret: the Executive branch.  The Executive was unconscionably lax in allowing Bradley Manning to have access to all these secrets and to exfiltrate them so easily.

I do not understand why so much ire is directed at Assange and so little at the New York Times. What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times?  Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see.  Would our reaction to that have been more subdued than our reaction now to Assange?  If so, why?  If not, why is our reaction so subdued when the Times receives and publishes the information from Bradley through Assange the intermediary?  Finally, in 2005-2006, the Times disclosed information about important but fragile government surveillance programs.  There is no way to know, but I would bet that these disclosures were more harmful to national security than the wikileaks disclosures.  There was outcry over the Times’ surveillance disclosures, but nothing compared to the outcry over wikileaks.  Why the difference?  Because of quantity?  Because Assange is not a U.S. citizen?  Because he has a philosophy more menacing than “freedom of the press”?  Because he is not a journalist?  Because he has a bad motive?

In Obama’s Wars, Bob Woodward, with the obvious assistance of many top Obama administration officials, disclosed many details about top secret programs, code names, documents, meetings, and the like. I have a hard time squaring the anger the government is directing toward wikileaks with its top officials openly violating classification rules and opportunistically revealing without authorization top secret information.

Whatever one thinks of what Assange is doing, the flailing U.S. government reaction has been self-defeating.  It cannot stop the publication of the documents that have already leaked out, and it should stop trying, for doing so makes the United States look very weak and gives the documents a greater significance than they deserve.  It is also weak and pointless to prevent U.S. officials from viewing the wikileaks documents that the rest of the world can easily see.  Also, I think trying to prosecute Assange under the Espionage Act would be a mistake.  The prosecution could fail for any number of reasons (no legal violation, extradition impossible, First Amendment).  Trying but failing to put Assange in jail is worse than not trying at all.  And succeeding will harm First Amendment press protections, make a martyr of Assange, and invite further chaotic Internet attacks.  The best thing to do – I realize that this is politically impossible – would be to ignore Assange and fix the secrecy system so this does not happen again.

As others have pointed out, the U.S. government reaction to wikileaks is more than a little awkward for the State Department’s Internet Freedom initiative.  The contradictions of the initiative were apparent in the speech that announced it, where Secretary Clinton complained about cyberattacks seven paragraphs before she boasted of her support for hacktivism.  I doubt the State Department is very keen about freedom of Internet speech or Internet hacktivism right now.

Well said!

http://opiniojuris.org/2010/12/10/goldsmith-on-wikileaks/

5 Responses

  1. I think that the reaction is a technophobe/technophile/technosavvy/technoignorant thing.  A generation of leaders in place now are digital immigrants and the leak is done by more digital natives.  Seeing the world in that new 1′s and 0′s way is too hard for the leadership.  The hamhanded attempt to strike out at Assange is a reflection of having the secret world turned upside down in such an easy manner.  This is terribly destabilizing to those who think secrets have to be kept and that things can be secret.  Once something is in electronic form – as were all these cables – the safe assumption has been that it will be in the public domain sooner or later.  That is a very heavy reality around which to wrap one’s head.  I doubt that those movers and shakers have got there yet.  It’s a difficult thing to grasp – like grasping at air – but to ignore it I think leads to these kinds of foreseeable surprises.
    Best,
    Ben

  2. ==harm…foreign policy interests==

    Probably Jack Goldsmith does not know the meaning of the word “interest”. I might be interested to steal Goldsmith’s wallet, but that does not mean that I have an legitimate interest in his wallet. In the same way, a state cannot just define it’s interests in violation of international law. And if it does, it’s not a valid argument.


  3. Per this portion: “Bob Woodward, with the obvious assistance of many top Obama administration officials, disclosed many details about top secret programs, code names, documents, meetings, and the like. I have a hard time squaring the anger the government is directing toward wikileaks with its top officials openly violating classification rules and opportunistically revealing without authorization top secret information.”

    Look at this with perspective. There’s a difference between a secondary source revealing information and a primary source revealing same. The one is rumor, the other confirmation. Surely a lawyer would understand that from the perspective of client confidentiality? The principle is similar.

    Understanding some of the (apparent) inconsistencies from the government regarding security information requires understanding of the nature of bureaucracies. Military members who are obliged to wear reflective belts at night (over their camouflage) while stationed in combat zones have a really up-close-and-personal perspective on this. A common sense guideline would suffice for the average person (is this information obtainable virtually everywhere online? If so, might as well make it accessible for people to read at the library of Congress). Common sense guidelines don’t work for enormous agencies.

    Consider this legal forum. At present, you can screen information pretty easily….deleting commentary that violates the standards. Human interactions are largely subjective, so offenses can be determined on a case-by-case basis. But, suppose you had 1,000,000 active and interested people who posted continuously here. Your legal blog would probably have to employ staff (or more staff) to police the flow of spam postings in order to maintain the level of cerebral discourse the forum (I’m sure, after reading this site for months) hopes to maintain. The initial common sense guidelines would eventually be hit by some practical limitations. As the interest and posting grew, there would be less “common sense” discretion…more all-encompassing rules and less subjectivity. There simply wouldn’t be enough manpower capable of that oversight. Probably well before the 100 million point there would be no “individual judgment” test. Simply yes or no squares to fill…’Is it current trial evidence?’ ‘Are these sources still living in the Middle East?’ If yes, don’t release it…ect.
    I’ll offer an anecdotal example. My husband, an Airforce pilot, wrote the very first Operations and Tactics Manual for the F22. Then he lost his clearance (initially) back when we changed stations and were moved to Washington DC. Any questions or alterations to the manual HE WROTE could not be requested from him, since his clearance had expired. Seriously, they couldn’t ask the author questions about his own book. In order to field the questions he had to reinstate his clearance. And this wasn’t easy, because his parents are Cuban immigrants and there’s a huge amount of rigamerol that goes with that.

  4. Response…I believe the problem of Assange at this stage is primarily a moral one rather than a legal one, even though I believe states have a right to criminalize the theft of their classified documents. A prosecutor will decide if charges can be made against Manning and the U.S. Congress and White House will decide if some sanctions must be made against Assange — and that’s ok. We elected them, not WikiLeaks.

    What’s wrong with this sort of discussion, however, is that in the zeal to somehow protect Assange’s lack of free speech, there’s a strange willingess to trump the freedom of association that Amazon, Paypal etc. should get to have if they decide his stolen documents aren’t what they want on their servers.

    Furthermore, there’s a curious argumentation, straight out of immoral and nihilist hacker culture, that blames the victim. This reminds me of what Andrea Dworkin said about date-rape: the consequences of a woman taking a frat man into a dorm room and getting drunk should be a hangover, not rape.

    By the same token, lax security systems, actually caused ironically by an overly-wikified system with sharing but no caring — no responsibility in the typical collectivized knowledge system! — shouldn’t mean you “get to steal”. You don’t, morally or legally.

    Now as for the nature of the act of dumping files on the Internet, there is a very big difference between the Pentagon Papers and WikiLeaks that even Daniel Ellsberg won’t admit: consent versus coercion. The people who wrote the Pentagon Papers were government officials; they voluntarily passed the report to colleagues; those colleagues weren’t authorized to disclose the report, but they VOLUNTARILY gave it to their PEER Daniel Ellsberg, who, driven by conscience, and collaborating with journalists AND lawyers, published the papers.

    How different is WikiLeaks, where — if we are to believe the story, and I don’t — a 22-year-old private with no particular cause other than disruption downloaded hundreds of thousands of files that he had no knowledge or context for nor sense of consequence, dumped it to other people with anarchist views, who published it in accordance with their own political beliefs and perceptions, heedless of any sources who got burned.

    These distinctions all matter terribly, because we are journalists or even readers should be able to collaborate, and not be coerced into crime.

    The State Department’s lame and slow and conflicting reaction isn’t the point. The point is the nature of this info war — it’s not pretty. Assange is publishing documents, as he openly says, to cripple and bring the US down and close it, not open it.

    The WikiLeaks war in cyberspace for influence and for the victory of one kind of social system (the “free” and “forced sharing” one) should not be confused with a rights struggle. It’s not one.  And BTW, these people have so far remained free to speak and endlessly make mirror sites to repeat their speech as much as they want, even if attached by other non-state actors or cut off by states or told they are in violation of a TOS by corporations.

    I’m not seeing the threat to freedom of expression whatsoever in Amazon’s action or in my elected government’s due diligence to safeguard diplomacy in my name.

    What I’m way, way more worried about is the thuggish revolutionaries of WikiLeaks and their pals at Anonymous who want to crash the sites of anyone who doesn’t agree with them. They believe the DdOS should be blessed as a legitimate form of civil disobedience. It’s not. It’s crime.

    http://3dblogger.typepad.com/wired_state/2010/12/why-rights-groups-are-wrong-about-wikileaks.html

  5. Response…WL is the most effective project against hetrosexual power. Keep suporting WL economicaly lets make an end to hetrosexual sociatys. Buy only from homosexual producers. If you work in a shop – help brothers buy giving them free stuff. Every social group based om hetrosexual rules should be destroyed, infiltrate them and brake them apart.

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