Federal judge’s order shutting down wikileaks.org, a whistleblower website, is 1st Amendment travesty
By Peter Scheer
Wikileaks.org, a whistleblower website that enables the anonymous (and, in theory, untraceable) leaking of confidential government and corporate documents, has gone dark.
Although Wikileaks’ silencing was sought by antidemocratic governments worldwide–including China, whose censors work mightily to block all access to the site–wikileak’s plug was pulled, ironically, by a federal judge in San Francisco.
Acceding to the wishes of a Swiss bank complaining that Wikileaks had published confidential bank records, federal district Judge Jeffrey S. White last week signed an order to remove from the internet not merely the offending bank records (which purport to show evidence of money-laundering and tax-evasion) but the entire Wikileaks.org website–including documents that were the basis for major news stories in recent months on, among other things: The US military’s rules of engagement in Iraq (the New York Times); the treatment of terrorist suspects held at Guantanamo (Wired.com); official corruption in Kenya and Somalia (BBC News); and the collapse of the Northern Rock Bank in England (The Guardian), among others.
Judge White’s order, which directs wikileaks’ domain registrar, Dynadot, to deactivate (and lock) the wikileaks.org domain, is the same, legally-speaking, as enjoining all future editions of the Washington Post because of a corporation’s complaint about one article that appeared in the newspaper last month. In the hierarchy of offenses to the First Amendment, the shutting down of a publication–whether a daily newspaper or a widely read website or blog–is among the most serious. What the government of China could not do, despite building its “Great Firewall” of censorship, Judge White accomplished with the stroke of a pen.
Or perhaps not. . . Anticipating a legal onslaught, wikileaks apparently arranged for its content to be viewed on alternate addresses around the world (such as wikileaks.cx, which was still functioning as of this writing). It remains to be seen how long wikileaks, by use of these and other techniques, can stay a step ahead of the censors.
Why does the survival of wikileaks matter? Because it has the potential, as a model for exposing what governments wish to keep secret, to be a potent force for more transparent–and therefore more accountable–government. In a closed society like China, where the press is heavily censored and regulation of service providers precludes anonymous posting online, wikileaks enables a dissident to publish leaked documents about government corruption or human rights violations–and do so with reasonable confidence of escaping detection.
In more open societies, wikileaks offers a means for a whistleblower to expose evidence of wrongdoing (or wrongheadedness) that news organizations, for whatever reason, have declined to publish. For the most sensitive documents, wikileaks is also a means of transmitting evidence to journalists that, due to the absence of fingerprints, protects both the source and the journalist from a grand jury subpoena or prosecution for leaking. If Daniel Ellsberg were trying to leak the Pentagon Papers today, he might use wikileaks.
Of course, the power to expose official secrets is the power both to hold government accountable and to endanger vital national interests. Merely because one can disclose legitimate state secrets is not a reason for doing so. Thus far, however, wikileaks’ staff (who are themselves anonymous) appear to be exercising their editorial discretion responsibly.
Consider Wikileaks posting of the US rules of engagement for fighting in Iraq. Although classified, the document reveals nothing of tactical value about US plans or capabilities (which, in any event, were out of date by the time of the document’s posting in late 2006). What it does reveal are rules and policies reflecting the US military’s near-obsession with avoiding civilian casualties and the high priority assigned to protecting Iraqi citizens and civilian infrastructure.
Ironically, American interests would have been well-served if the US military, rather than treating the rules of engagement as secret, had turned them over to Al-Jazeera. Purely from a public relations standpoint, they describe American operations as the military would want the world to see them. The same is essentially true of Wikileaks’ posting of the military’s operating manual for the Guantanamo prison (which, though unclassified, was marked for “official use only” and had been withheld in response to FOIA requests by the ACLU and others). On paper (if not in practise), the rules and policies for Guantanamo are most impressive for their prohibition against abuse of detainees and admonitions to “treat detainees humanely.”
Back to wikileaks’ California court case for a beat: To give Judge White the benefit of the doubt, it’s possible he didn’t realize he was ordering the pull down of all of wikileaks.org. The order presented to him, drafted by the bank’s lawyers, implemented a settlement of the bank’s claims against Dyanadot, the registrar for the wikileaks.org domain name. Because wikileaks was unrepresented in the proceeding, there was no one to point out that, while the settlement nominally dealt only with Dynadot, the effect of the order was to take all of wikileaks.org off the internet.
If his order was a mistake, he will have ample opportunity to correct it. But if Judge White does nothing, he will deserve all the criticism he gets.
Peter Scheer is executive director of CFAC