Online, Student Articles — August 14, 2010 at 2:42 pm

WikiLeaks and the First Amendment

By Stephen M. Pezzi -

Over the past decade, there have been many reminders that the national security threats of the 21st century look far different than those of previous generations.  On July 25, 2010, the world got another reminder, when the New York Times, the Guardian (United Kingdom), and Der Spiegel (Germany) published over 70,000 secret documents about the war in Afghanistan.  The information was provided by Wikileaks, an organization that styles itself as “an anonymous global venue for disseminating documents the public should see.”

While the original source of the leak has yet to be confirmed, U.S. Army Private First Class Bradley Manning has been called a “person of interest” in the investigation.  PFC Manning has already been detained for several months, after allegedly providing WikiLeaks with a video (titled by WikiLeaks as “Collateral Murder”) that shows an Apache Helicopter firing into a crowd in Baghdad, eventually killing two who have since been identified as Reuters journalists.  Manning has been charged with several violations of the Uniform Code of Military Justice.  However, while the case against Manning is relatively straightforward – either he leaked the information, in clear violation of Army regulations and the UCMJ, or he did not – the legal questions surrounding the involvement of WikiLeaks, and the press generally are more complex.

In New York Times v. United States, the Supreme Court held that an injunction, or a “prior restraint” on publication of government documents was unconstitutional, in all but the most extraordinary circumstances, in the strikingly analogous leak of Daniel Ellsberg’s famous “Pentagon Papers,” which shed light on the decision to go to war in Vietnam.  Since then, it has been taken for granted that the news media enjoys broad protection under the First Amendment, even to publish information that could pose a national security risk, and was obtained originally through legally questionable means.  Thus, absent a shocking departure from the Supreme Court’s First Amendment precedent, the Times, the Guardian, and Der Spiegel will not be the subject of any legal sanction, and probably cannot be prevented from publishing similar information in the future.

While the mainstream press is likely protected by the First Amendment, there are those who believe there is a case to be made against WikiLeaks, or its founder, the nomadic and mysterious Julian Assange, under the Espionage Act – or perhaps even a stretched interpretation of “material support” to a terrorist organization.  However, debating the merits of such an approach presupposes that Assange or WikiLeaks could ever be brought before an Article III court or a military tribunal.  WikiLeaks operates out of servers in several foreign countries, and it is safe to assume that Assange is not likely to enter the United States anytime soon.  So while there are surely interesting legal questions here, the practical lesson is that technology has changed the face of whistle blowing forever, and in the national security context, has exposed serious flaws in the way the United States military protects sensitive information.

Whatever the approach the United States ultimately decides is best to pursue here, in the short term, there seems to be little in place to stop similar leaks – other than the surely futile strategy of simply asking for a return of all classified documents.  This is already very relevant, as WikiLeaks claims to have an additional 15,000 secret documents about the war in Afghanistan, which are currently being reviewed and prepared for publication.  The prospect of this additional release of classified information demonstrates that while there may be some areas where the U.S. military can use the law to help preserve national security, at least for now, preventing online leaks of classified information is clearly not one of them.

Image courtesy of The Tech Journal.

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