1st Amendment News

ACLU argues against prosecuting Wikileaks

The American Civil Liberties Union argues that prosecuting organizations like Wikileaks for releasing classified information would damage the ability of the press and others to inform the public about government actions. -db

American Civil Liberties Union
Commentary
November 29, 2010

The Wikileaks phenomenon — the existence of an organization devoted to obtaining and publicly releasing large troves of information the U.S. government would prefer to keep secret — illustrates just how broken our secrecy classification system is. While the Obama administration has made some modest improvements to the rules governing classification of government information, both it and the Bush administration have overclassified and kept secret information that should be subject to public scrutiny and debate. As a result, the American public has had to depend on leaks to the news media and whistleblowers to know what the government is up to.

“We’re deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea. The courts have made clear that the First Amendment protects independent third parties who publish classified information. Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents. If newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA’s secret prisons or the government spying on innocent Americans. Prosecuting publishers of classified information threatens investigative journalism that is necessary to an informed public debate about government conduct, and that is an unthinkable outcome.

“The broader lesson of the WikiLeaks phenomenon is that President Obama should recommit to the ideals of transparency he invoked at the beginning of his presidency. The American public should not have to depend on leaks to the news media and on whistleblowers to know what the government is up to.”

Without whistleblowers such as Wikileaks who disclosed illegal activity, we wouldn’t know, among other things, about:

the CIA’s secret overseas prisons

the National Security Agency’s warrantless wiretapping program

that civilian casualties from the war in Iraq are much higher than was thought

that U.S. troops were going into battle without adequate body armor

There is certainly a narrow category of information that the government should be able to keep secret in order to protect national security and for other purposes. But the reality is that much more information has been classified by the U.S. government than should be, and information is often classified not for legitimate security reasons, but for political reasons — to protect the government from embarrassment, to manipulate public opinion or even to conceal evidence of criminal activity. When too much information is classified, it becomes more and more difficult to separate the information that should be made public from the information that is legitimately classified.

What the Wikileaks phenomenon means in the longer term — and how the government will respond — is still open to question. But two things are already clear. First, to reduce incentives for leaks, the government should provide safe avenues for government employees to report abuse, fraud and waste to the appropriate authorities and to Congress. Second, the Obama administration should recommit to the ideals the president invoked when he first came to office: “The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

Democracy, after all, depends on transparency. The American public has a right to know what the government is doing in its name.

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