United States v WikiLeaks

1. WikiLeaks is a “media” player despite what many in Washington would like to believe; and
2. The US government has never successfully prosecuted a media entity for a leak.

President Barack Obama, by his silence on this matter, unmasks that he knows what few in his cabinet and in Congress know: that Julian Assange, by revealing classified information in the manner in which he did, violated no statute. None.

Like Weiss, Hina Shamsi of the American Civil Liberties Union’s National Security Project, asserts that the “government is looking at wheeling out the Espionage Act,” a 93-year-old long-in-the-tooth statute that “prohibits wilfully disclosing information relating to the national defence”. The prosecution must prove, among other things, that a defendant knew that the information he was disclosing was potentially damaging to national security and that he was violating the law.

To counter the DOJ’s argument, Assange will doubtlessly offer copies all around of letters he wrote to the United States ambassador in London and another letter to the United States Department of State inviting suggestions for editing (more commonly called “redactions”) prior to publication and stressing that he has “no wish to harm the national security of the United States”.

His letters were ignored.

The ACLU’s Shamsi, echoing Weiss, is convinced that Holder may want to persuade the courts that WikiLeaks is many things. Anything but “traditional” news media. But this could be difficult. Good luck.

In a US court Assange will doubtlessly seek protection of the First Amendment where he will show that WikiLeaks should be afforded exactly the same freedoms (of the press and of expression) that traditional media enjoy. Since Chief Justice Hughes of the United States Supreme Court in 1938 defined the press as, "every sort of publication which affords a vehicle of information and opinion", it will therefore be very hard for the DOJ to persuade the court that Assange was not “media”. What exactly is he, Secretary Holder? An online hot dog vendor?

In court a case along these lines would surely unfurl yet more secrets. Weiss in the Washington Post opines that if Julian Assange’s attorney is smart, I'll venture he'll call the Secretary of Defence as his first witness. If he’s really smart, he’ll ask the Secretary of State as his second witness.

The ACLU’s Shamsi, in defence of the First Amendment, argues that if newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA's secret prisons or the government spying on innocent Americans. “Prosecuting publishers of classified information threatens investigative journalism.” And of course WikiLeaks is a media organisation publishing and investigating.

In the event that the prosecution will wish to compromise by directing WikiLeaks to be more “responsible”, the defence could cite Miami Herald Publishing Company vs. Tornillo where the Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so the government may not force newspapers to publish that which they do not desire to publish.

No public, American or Australian, should have to depend on leaks to the news media and on whistleblowers to know what their government is up to. But in the absence of transparency, what choice do citizens have?

The third President of the United States, Thomas Jefferson, in 1823 said "the only security of all is in a free press. The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure."

Today’s crop of self-serving, special interest can rattlers on both sides of the aisle think they know better that the third President. Times have changed, they will argue, and they have nothing to learn from him.

Maybe they are right. After all what could Jefferson possibly teach them? All he did was write the Declaration of Independence.