Free speech for Wikileaks?

I rarely find much to agree with on Salon but the following excerpt seems well-founded:

"There is not a shred of evidence that any act WikiLeaks has undertaken -- including the release of the last batch of Afghan war documents -- "has killed people." To say that Assange is "a murderer of American and Afghani people" is so far removed from reality, exhibits such an irresponsible detachment from the truth, that it's hard to express in words.

Even the Pentagon admits that there is no evidence whatsoever to support Carroll's factual claims. From The Washington Post, August 11: "'We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents,' [Pentagon spokesman Geoff] Morrell said." It's plausible to speculate that WikiLeaks' disclosure creates some risk of future harm, but to assert that "American and Afghani people" have been killed by such disclosures is just a total fabrication.

Carroll's emphatic decree that Assange "is a criminal" because he "broke U.S. law" is even more ignorant, though at least in an interesting and revealing way. He's not alone in being unaware that the U.S. -- unlike many other countries -- does not have a general criminal prohibition on disclosing state secrets. It is, of course, illegal for those with an affirmative duty to safeguard secrets (such as government and military employees) to leak certain categories of classified information, but it is generally not illegal for non-governmental third parties -- such as media outlets or private citizens -- to publish that information.

That's why it's extremely difficult to prosecute newspapers for publishing classified information -- such as when The New York Times published the Pentagon Papers or the story of Bush's illegal NSA spying program, or when Dana Priest exposed the CIA's network of secret black sites. To simply assert that WikiLeaks or Assange clearly broke the law by publishing classified information -- despite the fact that they are not government employees -- is to exhibit a monumental ignorance of the subject matter on which one is opining.

There are legal theories under the Espionage Act of 1917 which, in some very narrow cases, can make it plausible to prosecute even non-governmental actors for publishing information, but doing so is very difficult. The Bush DOJ tried and failed to invoke those theories to prosecute two AIPAC officials -- private American citizens -- who were accused of receiving classified information from a DoD official and then transmitting it to the Israeli Government and to various journalists.

Indeed, the very idea of criminalizing the mere receipt and transmission of classified information by non-government-employees is incredibly dangerous, as it would criminalize much of what investigative reporters do, which is why even harsh AIPAC critics -- such as myself -- found that AIPAC prosecution to be so chilling.

There are countries (such as Britain) that criminalize all disclosures of classified information, but the U.S. is not one of them.

What's most interesting to me about the certainty of Carroll and plenty of others that WikiLeaks broke the law is that Assange -- unlike the two AIPAC officials whom the Government was unable to convict -- is not even a U.S. citizen, and WikiLeaks is not an American organization.

Just consider the mindset implicit in this belief that they "broke U.S. law": once the Pentagon decrees that something is secret, not only American citizens -- but every human being on the planet -- is thereby barred from talking about or disclosing it, upon pain of being declared a criminal.

As I've said many times, the criticism that WikiLeaks should have been more careful in redacting the initial release of documents out of concern for innocent Afghans is a reasonable (though sometimes exaggerated and hypocritical) one. But the broader anger at WikiLeaks seems clearly grounded in its defiance of U.S. Government decrees over what may and may not be publicly aired.

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