Is the Release of U.S. Diplomatic Cables by WikiLeaks Ethical?
Ethical Inquiry is a monthly series that examines ethical questions, highlighting a broad array of opinion from journalism, academia and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.
February 2011
- “Sunlight is said to be the best of disinfectants.” — Louis Brandeis
- “There is nothing brave about sabotaging the peaceful relations between nations." — Secretary of State Hilary Clinton, on the leaks
The release of classified and private documents by WikiLeaks has sparked a debate in the United States on the ethics of releasing and publishing material that the U.S. government asserts should be kept secret.
In this “Ethical Inquiry” we will explore some of the main arguments being made in favor of and in opposition to the release of these documents.
The First Amendment
The United States was founded on principles of liberty and rights. The U.S. Constitution’s celebrated Bill of Rights may be the nation’s key display of these principles. The First Amendment of the Bill of Rights states that “Congress shall make no law... abridging the freedom of speech, or of the press.”
The day after U.S. diplomatic cables were first released by WikiLeaks, the American Civil Liberties Union (ACLU) was already framing the issue in terms of the First Amendment, saying that it “protects independent third parties who publish classified information.” A few weeks later the ACLU formalized this claim in written testimony submitted to the House Judiciary Committee.
Congress introduced the Shield Bill (pdf), which would have strengthened the government’s ability to, among other things, “provide penalties for disclosure of [certain] classified information.” But again First Amendment issues arose, as spelled out in a University of Chicago law professor’s New York Times op-ed, which argued that this bill “would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked.”
In an editorial, Evan Hansen, Editor-in-Chief of Wired.com, argues, “We should regard WikiLeaks as subject to the same first amendment rights that protect The New York Times. And as a society, we should embrace the site as an expression of the fundamental freedom that is at the core of our Bill of Rights.”
Many contend that the First Amendment’s values of free speech and free flow of information do not extend to the current case, however. The Newsweek article “Why Journalists Aren’t Defending Julian Assange” (subs. req.) explains why “efforts to prosecute Assange — WikiLeaks' editor-in-chief and spokesperson — aren’t drawing more of an outcry about the First Amendment.
CNN’s senior legal analyst explained that the First Amendment may not provide WikiLeaks with a defense.
And some, such as the progressive Truman National Security Project, have maintained that the First Amendment in fact has nothing to do with the issues surrounding the leak.
The Public Deserves The Truth
Another line of thinking holds that because the government works for its citizens, and has the power to potentially affect almost every detail of those citizens’ lives, we should know what those in positions of power are saying to each other as they go about our business: "...[A] free press has not only the right but the responsibility to shed light in corners of government operations that are kept deliberately dark to cover up misjudgments and wrongdoing."
However, there are those who say that while some of the WikiLeaks leaks fulfill the public’s legitimate deserving to know the truth, this leak of diplomatic cables leak is not one of them. “Is there a genuine public good in publishing the internal communiqués of diplomats and world leaders?” one Huffington Post blogger asks in a post “The Truth About Transparency: Why Wikileaks Is Bad for All of Us.” He answers in the negative. Another Huffington Post blogger dismisses the leak as more akin to the TV show “Gossip Girl” than to a noble revealer of truth.
More Good Than Harm?
According to a Washington Post poll, the public is quite critical of the release, believing that it harms the American public interest. Yet some have argued that this sudden increase in transparency actually benefits the American government, revealing international support for U.S. policies, beneficial acts of the U.S. that had gone unnoticed, and generally portraying U.S. actions and intentions in a favorable light.
Some of the documents have revealed support for the U.S. from governments and leaders publicly critical of the U.S. government, thus showing the U.S. to be less an isolated actor and more a partner with others. For instance, Pakistan secretly approved controversial U.S. drone strikes within its territory.
Other commentators have noted that there is material among the leaked cables that shows the American “government, by and large, acts responsibly on the international stage” and that the “WikiLeaks cables show U.S. government trying to make world safer.”
A piece in Newsweek suggests that the cables “weaken some of the wilder conspiracy theories” (subs. req.) involving the U.S. government.
Provides Accurate Analysis, Records
Looking beyond immediate political expediency, some have pointed out that with more data — in this case in the form of a quarter of a million reliable, primary source documents published with little or no redaction — comes a greater understanding of history and current affairs.
A commentator in The Guardian described the leak as “a historian’s dream.”
Columbia University’s School of International and Public Affairs hosted a panel discussion in December 2010 titled “Wikileaks and Academia" (YouTube video) reinforcing the strong link between the accurate scholarship and the cables.
Shortly after they were released, academics had already begun incorporating the newly released information into their analyses (and in some cases even having to significantly revise their prior assessments). One of the most notable areas of analysis impacted by the cables is Middle East issues. Conclusions drawn from the cables vary. (See, for example, “Why Iran Loves WikiLeaks” by Chas Freeman in The New York Times and “WikiLeaks Contradicts Obama Administration on Iran” by Alan Dershowitz in the Huffington Post.
However, an international politics scholar argues that in the long run the leak will actually make diplomatic historians and political scientists worse off, since it incentivizes the government to classify more cables and then to wait longer before declassifying them and would generally increase an environment of secrecy in the government.
Legality
The illegality of leaking the cables would appear to be perhaps the most straightforward, automatically prevailing argument against the validity of publishing the cables. The catch? It is debatable whether publishing them was unlawful. While the original dissemination of the classified documents — allegedly facilitated by U.S. Army intelligence analyst Pvt. Bradley Manning — may have been a violation of the law, the nature of WikiLeaks actions is less clear.
A Washington Post op-ed explained why WikiLeaks should be considered a “criminal enterprise.” For the New York Times video feature "Bloggingheads," Daniel Drezner of Tufts University and Eli Lake of The Washington Times debate the motivations behind the leaking of diplomatic cables, asking if Manning is a "whistleblower" or a "traitor."
Shortly before WikiLeaks began publishing the diplomatic cables, U.S. State Department Legal Advisor Harold Koh sent a letter to Assange stating that the material was “provided in violation of U.S. law… As long as WikiLeaks holds such material, the violation of the law is ongoing.” He also warned against the further “illegal dissemination” of these materials.
One of the primary foundations used to argue this position is the 1917 Espionage Act. Yet prosecuting WikiLeaks under this act raises the concern among some legal experts that “... any indictment under the Espionage Act may also implicate the news media — and Americans who've read the cables or shared them with their friends.” A New York Law School blog rebuts the very idea that these leaks violate the Espionage Act. A Time magazine article, “The U.S.'s Weak Legal Case Against WikiLeaks,” lays out obstacles the U.S. government would face in prosecuting Assange.
Danger to Life
There is a debate as to whether the release of the cables has endangered lives.
In response to the publication of the cables, Secretary of State Hilary Clinton proclaimed, “There is nothing laudable about endangering innocent people” (YouTube video.)
A Washington Post article, “Human Rights Groups Fearful Over WikiLeaks Releases,” stated that the release of the “diplomatic cables has alarmed human rights groups, which fear that WikiLeaks or news outlets could publish the names of local activists” abroad who could then face grave consequences from their respective governments.
Human Rights Watch wrote that it is “has raised, and will continue to raise, such concerns with WikiLeaks and other news media publishing the cables.” The magazine Fast Company has pointed out that some unredacted copies of the cables have surfaced despite the efforts to the contrary. Foreign Policy magazine lists a few instances of failed redaction.
However, some have questioned the lack of substantial evidence that would show that lives are endangered. Assange himself has asserted “there has been no credible allegation, even by organizations like the Pentagon, that even a single person has come to harm as a result of our activities.”
The question remains: are there benefits to releasing these cables that outweigh the risks?
Final Thoughts: Then and Now
In 1971 Daniel Ellsberg released what came to be known as “The Pentagon Papers,” “a documentary history tracing the ultimately doomed involvement of the United States” in the Vietnam War.
The publication of these papers by the news media led to a United States Supreme Court case, in which the Court held that “the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate[d] the First Amendment,” thus allowing publication to resume.
In recent days Ellsberg has come out in support of Assange and WikiLeaks. Various TV and print appearances are linked from Ellsberg's website. Ellsberg argues that WikiLeaks founder Julian Assange ‘is serving our democracy and serving our rule of law precisely by challenging the secrecy regulations, which are not laws in most cases, in this country.” He is quoted by the Wall Street Journal’s "Law Blog" saying that he has “sort of been waiting for somebody to do this for 40 years.” For more reflections on the comparison between The Pentagon Papers and WikiLeaks, read the thoughts of the filmmakers behind a recent documentary about Ellsberg, reflecting on WikiLeaks.
Even now, 40 years after the release of the Pentagon Papers, Ellsberg’s actions are controversial. The debate about the WikiLeaks release of US diplomatic cables is likely to continue for a long time to come as well.