It's Dangerous For Free Speech When We Confuse Leakers With Spies

Free Speech

from the they're-not-the-same dept

We’ve tried to make similar points a few times in the past about our concern with the Obama administration going after whistleblowers and the journalists who publish their leaks by using the Espionage Act more than all other Presidents in history, combined (more than twice as much, actually). But the NY Times has a great piece highlighting how the federal government now seems to completely blur the lines between being a leaker and a spy.

“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”

This is dangerous for a whole host of reasons — including having an informed and knowledgeable public. But it’s also dangerous from a First Amendment standpoint. Remember, the First Amendment protects freedom of expression and freedom of the press — and both are closely linked when we’re talking about whistleblowers leaking information to the public via the press. When we start turning the leakers and the press into “spies” we make that much more difficult, and as a result we have a less free society, and a much more controlling and abusive government.

Of course, some would argue that this is the goal. The very same article quotes former Bush administration apologist lawyer John Yoo — infamous in part because of his tortured legal defense, twisting the clear meaning and intent of the Geneva Conventions in order to pretend that the US could use torture as an interrogation technique without violating the rules. Not surprisingly, Yoo doesn’t have any problem at all with condemning leakers as spies.

“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.

“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.”

Of course, Yoo is either woefully ignorant or flat out lying — neither of which makes him look good. First of all, the Manning/Lamo transcripts make it quite clear that Manning had very little communications with Assange. But, even more important, as research from professor Yochai Benkler made clear, prior to Manning’s leaks, Wikileaks was not seen as anti-US in its mission at all. Its earlier leaks had been focused on mostly corporate and government malfeasance around the globe (mostly outside the US), such as with Bank Julius Baer. As Benkler explained:

When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden’s calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.

In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International’s New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.

Furthermore, the idea that Yoo has that Wikileaks somehow “does not have First Amendment rights” because it’s “not the NY Times or the Wall Street Journal” makes no sense. It’s just assuming that because one brand is established and another is new that the established one automatically has greater rights than the new one. That’s an argument based on nothing more than historical bias, rather than any sort of recognition of reality. Wikileaks was never focused on the US, but was focused on revealing conspiracies of all kinds — that the US just happened to be involved in many speaks more to problems with the way the US government works, than to Wikileaks itself.

But there’s a larger, more troubling, point in all of this. When we redefine whistleblower and leaker to the point that they’re considered “spies,” and, at the same time, accuse journalists and media outlets of being co-conspirators and not being covered by the same basic rights that we supposedly honor in this country, the further and further we get from the basic ideals of a free and fair society. Again, those in power don’t seem to much care for a free and fair society — because they’re in power. But for people who would like to have a government that actually represents the people, this should be a major concern.

Filed Under: bradley manning, ed snowden, espionage, free speech, leaks, whistleblowing