Eleven days had already passed since the original disclosures [in the New York Times], and no catastrophes had occurred. Government concerns about potential national-security crises were nothing but speculation and surmise. The link between publication and consequences, [Alexander] Bickel argued, must be “direct and immediate and visible.” The Brethren: Inside the Supreme Court
, Woodward and Armstrong
In June 1971, the New York Times began publishing articles citing a classified history of the US government’s involvement in Vietnam. “The articles were based on a massive study,” Woodward and Armstrong write in The Brethren, “commissioned by former Secretary of Defense Robert McNamara, covering the period 1945-1967. The entire 47-volume set, called The Pentagon Papers, was considered extremely sensitive.” Two days into the series, Attorney General John Mitchell obtained an order in federal court blocking further publication, arguing that exposing the top-secret study endangered national security. The case was rushed through the courts, and by the 11th day after the initial article appeared in the Times, the Supreme Court heard oral arguments in what became the New York Times vs. U.S. Notably, the Supreme Court decided the case 6-3 in favor of the NY Times — i.e. they decided against restricting the Times from publishing the Pentagon Papers — without knowing exactly what the Times had in its possession. Although each justice wrote his own opinion, the consensus on the court was that the First Amendment is not without limits. The Pentagon Papers did not cross the threshold that would justify prior restraint, but the court reserved the right to block the release of secrets, if their publication threatened imminent harm or endangered national security.
Over the last few days, the Pentagon Papers — the leak, the New York Times publication, and the resulting Supreme Court case — have served as a moral and legal touchstone for examining the Wikileaks case.
The release of more than a thousand diplomatic cables, the exposure of which mostly just embarrasses the United States government by confirming the closed-door candor we all expect anyway, comes across not unlike a prank. Compared to some of the information released by Wikileaks in years past, leaks that earned Julian Assange honors from Amnesty International among other human rights groups, it has been difficult to determine whether the value of the information leaked to the press measures up to the justificatory claims Assange makes in a 2006 essay on why Wikileaks does what it does. In it, Assange claims that since conspiratorial and authoritarian regimes will resist pressure to change, one of the most effective strategies (if not the only effective strategy) to combat conspiracies is to steal and share the regime’s secrets. The conspirators then have two options: be more transparent (i.e. stop conspiring) or seize up with distrust. Leaking a group’s secret information makes it difficult for that group to work in secret. But, as a friend of mine said to me in conversation about this particular Wikileaks information dump, it is “hard to see this latest act as more than information vandalism or mischief (i.e., we leaked ’cause we could).”
And I think that it is the “because we could” part that’s got the U.S. government scared, not necessarily what’s in these cables.
In 1971, the Pentagon Papers literally were papers. Bound to (and in) a physical medium, they required a publisher to distribute the information contained within them. Publishing costs in the 1970s, like most of history, were high enough to require a significant investment of capital in the means of production. That is, not many people owned the means to reproduce a 47-volume set of documents. Neither — and perhaps more importantly — did many people have at the ready a capacity to distribute the documents even if they could reproduce them. Even the newspapers with whom the Pentagon Papers had been shared (the New York Times and the Washington Post among others) did not have the means to reproduce the documents in their entirety. Instead, the newspapers published articles written about the Papers and used the Papers as source material for exposing clandestine and deceptive operations within the federal government. It wasn’t until months later that the average person could read the papers for themselves, and even then Beacon Press published only the selections that Senator Mike Gravel had entered into the public record. When publication is limited to physical media, the information contained within the leaked documents is bound to the limits of what can be shared physically. Physical sharing — duplication and distribution — comes at a high cost.
The difference between the technology used to publish the Pentagon Papers and the Wikileaks cables is astonishing.
Fast forward to November 29, 2009 (eleven days ago). A stateless organization (that is to say, an non-governmental organization with no home country) called Wikileaks shared hundreds of thousands of diplomatic cables with a handful of news organizations, and the New York Times starts publishing them. As the Times says in its online archive,
A mammoth cache of a quarter-million confidential American diplomatic cables, most of them from the last three years, provides an unprecedented look at bargaining by embassies, candid views of foreign leaders and assessments of threats. The material was obtained by Wikileaks and made available to a number of news organizations in advance.
How did this happen? An Army Intelligence officer, SPC Bradley Manning, used his clearance and access to classified documents and a CD-RW, a writable CD on which his co-workers assumed he was listening to Lady Gaga, to smuggle secrets by the megabyte. Manning, with a professed desire to “do the right thing” and shed light on nefarious covert operations, turned over the smuggled data to Wikileaks. [DailyTech]
As David Samuels argues in an article critical of professional journalists who have used their spaces for public discourse to disparage Assange, “The true importance of Wikileaks — and the key to understanding the motivations and behavior of its founder — lies not in the contents of the latest document dump but in the technology that made it possible, which has already shown itself to be a potent weapon to undermine official lies and defend human rights.” In this case, while Senator Joe Lieberman, Attorney General Eric Holder, and other prominent politicos claim that Wikileaks is endangering national security, the consensus in the media is that the 1,000+ cables released so far amount to more embarrassment than threat. [UPDATE: While Wikileaks has more than 250,000 cables in its possession, only 1,606 have been released to the press. See this NYTimes article on Julian Assange's release from custody for more.]
There are more than 250,000 more classified documents in Wikileaks’ possession. They have been encrypted and released via Bit Torrent to ensure their distribution. The encryption key, however, is not yet public, and it is unknown whether Assange and/or others at Wikileaks will release it. The encrypted 1GB+ file is referred to by some media critics as “insurance,” but we still don’t know exactly what it is meant to insure. Because of the widespread distribution of the files, if and when the encryption key is released, it will be the equivalent of instantaneous worldwide publication.
Neither the simultaneous sharing of a quarter-million documents nor the world-wide distribution of 16 million more was possible in 1971. At least, not for an organization the size of Wikileaks. But by reducing the cost of publication and distribution to as close to zero as possible, the Internet has revolutionized the business of leaking secrets.
Similarly, the business of safeguarding them has grown more complicated. In 1971, while the Pentagon Papers were an exhibit in the case before the Supreme Court, the state’s secrets were protected by armed Pentagon security guards posted outside the Supreme Court’s conference room.
Today, many of the state’s secrets are hosted on a website, available to the public to download and read at its leisure. In his infinite wisdom, Senator Joe Lieberman encouraged Amazon, who had been hosting Wikileaks website on one of its servers, to drop the controversial client. And ever since then, the resulting back and forth between corporate entities pulling the rug out from under Wikileaks and hackers responding to the corporate/political bullying has been a fascinating digital tennis match. First Amazon boots Wikileaks from its servers, then Mastercard stops processing transactions that would send money to Wikileaks’ accounts, then PayPal suspends its role in processing donations. The response: anonymous distributed denial of service attacks (DDOS) brought down Mastercard, VISA, and PayPal for brief periods of time on Wednesday, no small feat. And even though the Wikileaks.org address was shut down, Wikileaks’ presence on the web is stronger than ever. Facebook and Twitter have been dragged into the fray for continuing to allow Wikileaks to use accounts, through which supporters distribute information about how to find their websites. On the one hand, the two social media giants have been pressured to close down Wikileaks’ official accounts, which as of yet they have refused to do. On the other hand, they have suspended accounts that were being used by hackers to organize the DDOS strikes. Thus, safeguarding secrets is, because of the nature of the Internet, a game of Whack-a-mole. Dump Wikileaks.org from its DNS registrar, and Twitter becomes a human DNS, pointing people to the server holding the forbidden fruit they are looking for. [Rebooting the News #75] [Slate explains the DDOS attacks]
Lost in the geek’s obsession with who’s turning its back on whom is a latent question: is Wikileaks a press organization? At stake is whether the freedom of the press is relevant to its activities.
In The Atlantic, David Samuels writes, “even as he criticizes the evident failures of the mainstream press, Assange insists that Wikileaks should facilitate traditional reporting and analysis. ‘We’re the step before the first person (investigates),’ he explained, when accepting Amnesty International’s award for exposing police killings in Kenya. ‘Then someone who is familiar with that material needs to step forward to investigate it and put it in political context. Once that is done, then it becomes of public interest.’” Even if Wikileaks does not see itself as a press organization, the question remains. If the Pentagon Papers are any guide, what the Supreme Court seems to be saying is that while stealing secret documents is criminal, publishing them is not. The question that didn’t come up in the New York Times vs. U.S. is whether you or I have the right to publish, or is this right reserved only for corporate entities that self-identify as the press? Samuels stops short of calling Wikileaks a press organization. He says, instead, that the press should be defending and embracing Wikileaks because
it is a fact of the current media landscape that the chilling effect of threatened legal action routinely stops reporters and editors from pursuing stories that might serve the public interest – and anyone who says otherwise is either ignorant or lying… Wikileaks is a powerful new way for reporters and human rights advocates to leverage global information technology systems to break the heavy veil of government and corporate secrecy that is slowly suffocating the American press.
What Samuels is arguing is that the press is not something that can exist in a vacuum. The press is as much a relationship between ideas and community as it is the formal corporation and its employees. New media, through the equalizing power of low/no cost publication, has brought this point into sharp relief.
In 2008, I attended a conference for bloggers organized by the Society of Professional Journalists, a “citizen journalism academy.” The day was partly dedicated to giving bloggers some familiarity with the ethical and legal responsibilities of publishing and partly dedicated to training on how to organize a blog around a research and publication workflow that might otherwise be taught in journalism school. The information was invaluable, but there was a tone in air resonating with bitterness over sharing professional secrets with a bunch of amateurs. I don’t want to revive the “blogger vs. journalist” debate of the last decade as much as point out that it was never resolved.
I prefer to think of the press as a loose assemblage of publishing technologies, groups, and individuals. The press includes professionals and amateurs, newspapers and blogs, Fox News and the Huffington Post, even Twitter when it is used for certain ends. So, why not also include an organization that is committed to exposing secrets, who uses wiki technology as its vehicle of publication? And if Wikileaks is part of the press, then does it not enjoy the same rights (and responsibilities) that fall under the rubric of the freedom of the press? I realize that Wikileaks is neither a US-based organization nor is it necessarily subject to US law. Thus, I am appealing to a more global sense of the importance of a free press.
The threats posed by the release of the remaining 250,000 documents, currently encrypted and controlled by Wikileaks, may justify prior restraint. It is, and should be, more difficult to justify censorship of what amounts to embarrassing private correspondence. The threats to national security by making diplomacy more difficult are not so immediate. Governments carry the burden of justifying the prior restraint. Has Joe Lieberman demonstrated any rationale, or is he just bullying? And is his example the model of leadership the US wants to put forward on the global stage?
