Losing the Plot and Shooting the Messenger: Wikileaks and the Pretence of Ignorance

One of the most disturbing aspects of the recent Wikileaks crisis has been watching adults holding high office and other educated and rational people shoot the messenger. Journalists, corporations, politicians, academics… all who seem to have lost the ability to make the most simple and clear distinction.

Wikileaks did not steal confidential documents from the US state department. U.S. Army Private Bradley Manning was, allegedly, the individual who illegally took this data and handed it over to people who were not cleared to have it. Regardless of how you might view Manning’s actions, he is the one responsible for the theft of classified documents.

Julian Assange is neither an employee of the US government nor a US citizen. He cannot be called a traitor or charged with treason because he owes no national allegiance to the US. Treason is the only crime that is actually described in the American Constitution, and it is defined thusly:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article III Section 3
, the Constitution of the United States of America.

Even if Assange were an American citizen, it would be very hard to prove that he had committed treason, since the recipient of his ‘aid and comfort’ has been the entire planet, including the American public. One hopes the US Government does not yet count its own citizens amongst its enemies, although you’d hardly know it from the way they’ve been acting recently.

Nor can Wikileaks be convicted of espionage, because it is not illicitly gathering information off one party in order to benefit another. Assange isn’t a spy. Spies hand their information over to the intelligence organizations of the nations they are spying for or the corporations they have been hired to obtain information for.

The one effort to prosecute recipients of a leak under the Espionage Act ended in embarrassment for the Justice Department. In 2005, it indicted two lobbyists for a pro-Israel group who had been accused of receiving leaked information from a Pentagon official and conveying it to others. The case collapsed after a judge ruled that prosecutors had to prove that the lobbyists specifically intended to harm the United States or benefit a foreign country.
U.S. Weighs Prosecution of WikiLeaks Founder, NYT Online, 1/12/2010

It is not enough to allege harm has been done, it must be proved.  There have been many allegations that some of the earlier Wikileaks endangered Afghan informants, but so far there is not proof that this has occurred. Having an embarrassed President or State Department doesn’t really count as ‘harm’. Neither does having allies who are less likely to talk candidly. The supposed harms that have come from the Cables leak are all nebulous and unprovable damages the concrete evidence of which would be almost impossible to present.

Wikileaks received the data and made it public, both on its own website and by distributing the data to various news organizations. There are no general laws in the US concerning the disclosure of classified information by an entity acting journalistically. In fact, the last time the US Government tried to do this, attempting to stop the New York Times from publishing the Pentagon Papers, the supreme court refused to grant it an injunction. And it is well worth reading the rulings by the judges.

Justice Black wrote:
Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
Justice Brennan wrote:
Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature.
Justice Stewart (with Justice White concurring) wrote:
In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative 1 and Judicial 2 branches, has been pressed to the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a [403 U.S. 713, 728]

President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary from of government.

In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.

In fact, anyone interested in the Wikileaks case would greatly benefit from reading the entirety of this watershed Supreme Court case. Not only do the judges fundamentally encapsulate in language the essential function of a free press within the democratic process, but specifically point out why, in the American-style structure, the press plays such a vital role. NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)

The behavior of these elected officials, bureaucrats, journalists and commentators calling for Julian Assange’s blood  can only lead me to one of two conclusions – either they are all staggeringly ignorant of their own history, law and constitution or else they are pretending ignorance in order to garner publicity by posturing and strutting about full of moral indignation and making sure they look like patriots.

Any real patriot would know their own history and hold the values embodied in their Constitution in much higher regard than their own popularity.