Legal Commentary

Julian Assange, founder of WikiLeaks, is at it again.  First he released 77, 000 secret government documents from the war in Afghanistan, and he has now released 391, 832 field reports from Iraq. 

The New York Times profile of Assange gives some indication of his motive.  He apparently believes his disclosures may curb what he sees as dangerous aggression by the U.S.   More significantly, he is a  (former, alleged) computer hacker who apparently believes in disclosure at all costs, even if the costs are human lives. 

Assange apparently feels a kinship with Daniel Ellsberg, but Assange's disclosures are far more dangerous and potentially deadly than Ellsberg's were during the Vietnam War.  The Pentagon Papers purloined by Ellsberg--the original documents, that is--were filtered through real journalists and editors at the Washington Post and the New York Times.   These "intermediaries" exercised judgment about what should be revealed and what shouldn't based on some consideration of the safety of American military personnel and whether the disclosures truly served the public interest.  Apparently no such editorial judgment is at work behind the Wikileaks disclosures.  Assange is determined to disclose, devil take the consequences, and the Internet gives him the power to release the 391, 932 documents in an instant to the entire world.

In the U.S., I fear that the Wikileaks incident may doom passage of the federal shield bill (the Free Flow of Information Act).  The shield bill, which contains a broad exception to protect national security,  gives reporters limited protection from being forced to reveal the identities of confidential sources in response to federal subpoenas.  It had passed the House and the Senate Judiciary Commitee, when it stalled over the definition of "journalists" entitled to its protection--thanks in significant  part to Wikileaks' original release of Afghan war documents.  This second release by Wikileaks probably spells an end to any desire legislators may have to limit the discretion of the Executive Branch in pursuing leakers of any stripe. 

If anything, the Wikileaks controversy ought to illustrate the important role played by the institutional or so-called "mainstream" media and ought to give Congress more confidence in adopting a narrow definition of "journalists" entitled to the protections of the shield law.  The released documents appear to contain information suggesting governmental abuses of power in the conduct of the war in Iraq.  This information is of vital public interest, and had the documents been leaked to a responsible news outlet, it would no doubt have analyzed, organized, and assembled the information to focus primarily on the items of public interest while minimizing the risks to our troops, our allies, and our national interests.  The fact that the institutional media  have no protection from federal supoenas may in fact have  helped convince the person who leaked the documents to give them to an alleged computer hacker based offshore rather than a responsible outlet such as the Wall Street Journal or the New York Times.  Even if the mainsteam media are flawed, they still have institutional checks and balances and mechanisms for enforcing institutional norms that "non-mainstream" media lack.  The important role the Fourth Estate plays in democracy deserves protection even if it means Congress must draw messy lines excluding others who are occasionally capable of playing that same role.