July 28, 2010
On Monday morning, we did some looking into the legal issues surrounding WikiLeaks’ decision to unveil some 92,000 previously classified documents on the public, in connection with a handful of media outlets.
The bottom line, some First Amendment experts informed us: the government certainly had the right to go after and punish the person within the military who leaked the information. But logistical and legal concerns dictate that civil or criminal charges against WikiLeaks or any of the three publications that published the information are probably not gonna come.
WSJ editor Alan Murray continued to fill in the picture Wednesday morning in this chat with legendary First Amendment lawyer and Cahill Gordon partner Floyd Abrams.
We highly recommend checking out the video of their lively conversation. Some highlights:
Abrams argued the Pentagon Papers case in front of the Supreme Court some 39 years ago, taking the position that the First Amendment protected the New York Times and Washington Post’s right to publish a classified report on the Vietnam War.
On whether the WikiLeaks scenario is comparable to the Pentagon Papers imbroglio:
No, I don’t really think it’s comparable. . . . The core of the Pentagon Papers was that the people had been lied to by the government, that we’d gotten into the war in a surreptitious way over five different administrations and here were internal government documents to prove it. There’s nothing in here, so far as I know, that shows a level of duplicity or a misleading nature.
On whether WikiLeaks is protected by the First Amendment:
I think most of what they do would be. The reason I pause is that I don’t know and I bet they don’t know if this mass of material is genuinely harmful to national security. That’s one of my probelms with their modus operandi. [In the Pentagon Papers case, the New York Times] worked very hard on just that issue. They brought people in, they brought former high level defense, CIA types to get their views, they interviewed people. It’s very different. My concern is that there are no editors apparently involved here; this is not a journalistic process. This is a dump on the world of 92,000 documents. And so I don’t know and i bet they don’t know there’s anything in there which is harmful in a real way.
On whether there’s a difference between WikiLeaks and the New York Times:
The Times goes through, as you would, a process of making a determination whether they would publish a particular document with a particular legend on it, for example or revealing how long it takes for a particular weapon to fire. Material like that [is] the sort of thing the Times wouldn’t publish, you wouldn’t publish.
On whether the courts can do anything to prevent similar leaks in the future:
There’s very little. In fact, it’s much harder now. . . because fo the Internet. In a world of web sites, in a world of anonymity, in a world in which it’s almost impossible to find out who puts material on the web, it’s even more difficult now than then to pin [the leak on someone].
Who knows? Would Dan Ellsberg have gone to any newspaper if it were now instead of 1971 or would he have just found a way to get it all out. Bear in mind, he didn’t release all of it, he kept three volumes, which he thought related to the peace process . . . . And the Times didn’t publish everything they had . . .
When you get a Wikileaks organization, I don’t think they’re going through a facade of reading the material through [the] 92,000 documents and making some judgment that, well, maybe we shouldn’t release that one.
On whether the government might be able to shut down WikiLeaks:
We can have criminal sanctions for people who leak the information, if they can find out . . . who the leaker is, but in terms of the publisher — the disseminator –to the public, absent a situation where you’re talking about atomic weapons or secret secrets where the publication will eminently threaten the country or its people, I don’t see much, and I don’t think there should be much in the law that really provides remedies to stop publication, and the technology makes it all but impossible anyway.