In 2011, Julian Assange asked me to become involved in a case that threatened to skew that balance. He invited me to consult with him regarding a possible indictment by the United States against him and others.
I went to London in March of that year to meet with Assange and the British lawyers who were representing him. He was facing the immediate prospect of extradition to Sweden on sexual assault charges, but he also faced the possibility of being extradited to the United States to face charges that carried far more serious consequences. It was the possible American prosecution that he wished to discuss with me.
Before traveling to London, I spent several hours with Assange and his legal team over the phone and by e-mail. We worried about the security of our lawyer-client communications, which some might think ironic in light of Assange’s penchant for disclosure of secret communications, but he had little choice but to communicate about the legal issues. We decided that a face-to-face meeting was required, and we met in his lawyer’s office.
I found Assange to be earnest and deeply devoted to the principle of maximal transparency of governmental actions. He was, however, sensitive to the need to keep some secrets—if not from him, at least from the general public, which inevitably includes some bad people determined to do bad things to innocent and perhaps not so innocent people.
Assange insisted22 that he was a journalist, in every relevant sense of that term. He published, and turned over to others to publish, important and relevant material that had been provided to him anonymously. He and his colleagues had devised a technology for allowing “whistle-blowers” to “drop” material to WikiLeaks anonymously and with little possibility of it being traced to its source by WikiLeaks or anyone else. This “drop box” technology was the cyber manifestation of the notion that the best way to keep a secret is not to know it in the first place.
His job as a journalist was to authenticate the raw material, vet it for names and other life-threatening information that in his journalistic judgment should not be published (for example, the location of safe houses), and arrange for it to receive maximal reach by having it published by mainstream media outlets around the world, which would do further vetting to meet their own journalistic standards.
When he finished explaining his journalistic modus operandi, two names immediately popped into my head: Seymour Hersh of the New Yorker and Bob Woodward of the Washington Post. Both are pillars of the journalistic establishment and both have made their reputations by publishing secrets the government—or at least some in the government—did not want to see in print.
Hersh specializes in publishing classified information about national security that has been provided to him by whistle-blowers inside the government who disagree with particular governmental policies and want to see them exposed by someone who is believed to be sympathetic to their dissenting views. Some of these whistle-blowers are breaking the law by disclosing classified material. Hersh and his publishers know that they are publishing classified information before they publish it. Yet neither he nor his publishers have been prosecuted.
It is likely, moreover, that Hersh has encouraged at least some of his more reluctant sources to become whistle-blowers, or if they came to him without any prior encouragement, he’s encouraged them to continue to provide him with classified material. I do not know this to be a fact, but I have been told by several experienced investigative reporters that this is how it is done—that without encouragement and promises of confidentiality and positive portrayal of the source, the leaks “dry up.” When I read books by these authors, I can often surmise who at least some of the sources are: They’re usually the ones who are portrayed positively in other parts of the book—quid pro quo!
In other words, authors like Seymour Hersh not only report the classified information given to them by sources, they develop, encourage, and in other ways facilitate the continuing flow of information—information that they know is classified and hence being illegally turned over to them—from their “criminal” sources. An important difference is that Hersh has a political agenda: He tends to publish information that serves that agenda. Assange, on the other hand, seems willing to publish material equally critical of all governments. For engaging in such journalism, Hersh wins Pulitzer Prizes and gets invited to White House dinners and to lecture at schools of journalism that teach these methods.
Woodward is different in some respects and similar in others. Whereas Hersh’s sources tend to be beauracratic dissidents, Woodward relies on high-ranking members of the administration who want their “spin” to be heard on the story he is publishing to a very wide audience. Some of those politicians may be authorized to disclose the material, but certainly some are not, and some of the material is almost certainly classified (though it probably shouldn’t be).
Both authors recognize the reality that many, if not most, “state” secrets are designed not to protect the security of the nation, but rather to protect (and enhance) the reputations of the incumbent officials. In this regard, I recall a joke that made the rounds of the Soviet dissident community when I represented several of them in the 1970s. It is set during the period of the Stalin show trials, when a dissident was arrested for calling Stalin “a fool.” He wanted to defend himself by showing that Stalin was indeed a fool, but he was cut off by the judge, who said: “If you were being charged with defamation, truth might be a defense. But it is not a defense to what you are being charged with.” The dissident was taken aback and asked the judge, “If I am not being charged with defaming Stalin for calling him a fool, what am I being charged with?”
The judge responded solemnly: “You are being charged with revealing a state secret!”
Many current state secrets are really secrets whose disclosure would embarrass officeholders. Even the solicitor general who argued for the Nixon administration to prevent publication of the Pentagon Papers later acknowledged this reality.23 That’s why selective leaking and selective withholding of classified material is so damaging to truth, accountability, and historical accuracy. And that’s also why it is so prevalent in every administration.
For example, the May 13, 2013, edition of Time magazine openly boasted that it was publishing information that “is still classified” but that was “made available to Time,” presumably by someone inside the government who had an interest in seeing it published.
WikiLeaks is different precisely because Assange is not publishing selectively in order to tell a story favorable to one group or another. He has no apparent political agenda. His goal is transparency for the sake of accountability. With the exception of some names and addresses, WikiLeaks has let the leaked documents speak for themselves. Assange allowed the chips to fall where they may, and they often fall on the heads of the current officeholders around the world.
On February 28, 2013, PFC Bradley Manning confessed to providing the vast archive of military and diplomatic files to WikiLeaks, but in doing so, he put Assange in a position comparable to mainstream journalists, and he put WikiLeaks in a position comparable to mainstream newspapers. Manning said that he had simply uploaded the data to WikiLeaks, without any prompting from Assange: “No one associated with [WikiLeaks] pressured me into sending more information.” He used a broadband connection at a Barnes & Noble store because a snowstorm had disabled the Internet connection at his aunt’s house, where he was staying.24 He sent the material first to the WikiLeaks website and subsequently to a “cloud drop-box server.” He said he engaged in “online conversations” with someone from WikiLeaks who he assumed was a senior figure like Assange25 and with whom he had what he characterized as an “artificial” relationship. He did not explain what he meant, but his statement provided no evidence that Assange pressured him into providing the data or told him how to download it. To the contrary, Manning’s statement supports the claim that Assange and WikiLeaks were the passive recipients of unsolicited data which they then vetted and published, much like the New York Times and the Washington Post did with t
he Pentagon Papers.
Prosecuting WikiLeaks or its founder for “the crime” of publishing classified information, while at the same time rewarding—with prizes, access, interviews, and status—“reputable” journalists and newspapers for doing essentially the same thing, would constitute selective prosecution. American law, as distinguished, for example, from German law, generally permits selective prosecution of criminals, on the ground that resources are limited and prosecutors must have some discretion in deciding how to expend their limited resources.26 In order to “get the most bang for the buck,” prosecutors are generally free to pick and choose among the many who violate open-ended and often vague criminal statutes, such as tax, regulatory, and criminal negligence laws. They are not free to exercise this discretion in a partisan manner, such as going after members of the opposing political party, as President Nixon did with his “enemies list.” Nor can they properly do so on the basis of race, religion, or other protected categories. But they may select for prosecution the most visible or notorious offenders, since such prosecutions are likely to have the greatest deterrent effect on other potential law violators.27 For example, Leona Helmsley, one of the most famous women in America, was indicted for tax evasion—on April 15!
One area in which it is dangerous and wrong to permit selective prosecution is the publication of classified information by the media. If the government can pick and choose the few it decides to prosecute among the many who publish classified information, it will have too much power over the content of what the media reports.28 The First Amendment recognizes no distinction between patriotic and unpatriotic, responsible and irresponsible, favorable and unfavorable media. It was precisely these improper distinctions that were employed by the John Adams administration when it selectively enforced the Alien and Sedition Laws against “Jeffersonians,” “Jacobins,” and other perceived enemies of the Federalists. It took more than a century and a half for the Supreme Court to declare that although “the Sedition Act was never tested in this court, the attack upon its validity has carried the day in the court of history,” citing “a broad consensus that the act was inconsistent with the First Amendment.”29 (I was a law clerk when that opinion was issued in 1964.)
Not only has the verdict of history condemned the words of the Sedition Act, it has also condemned the selective manner in which it was enforced against certain journalists and newspapers but not others. If there are to be any restrictions of freedom in the press, they should be applied uniformly. If the publication of classified material is to be prosecuted, then all who publish it should be prosecuted, not only the marginal, the powerless, the “irresponsible,” and the unpatriotic—in the eyes of the government. If all are prosecuted, there is the possibility of the self-correcting mechanism of democracy operating to change the law, by narrowing it to criminalize only those categories of currently classified information that truly endangers national security. If untrammeled prosecutorial discretion is permitted, then the law can be kept as broad and overinclusive as it currently is, without fear that the New York Times will be caught in its web. If only the weak and the unpopular are selected for prosecution, there will be little pressures for change.
Moreover, selective prosecution of only certain journalists who violate broad statutes will encourage some in the media to curry favor with the government, and the government to curry favor with certain media. This is an unhealthy and dangerous relationship in a democracy in which the press is supposed to check the government and be independent of its control.
The exercise of some discretion may be necessary under the statutory scheme that currently criminalizes the publication of classified material. If all journalists who publish any classified material were to be prosecuted, there would be few left. The New York Times and its publishers, editors, and national security reporters would be convicted felons, since the current statutes are written in the broadest of terms that invite the exercise of discretion, which has generally been employed to immunize the mainstream media.
Some scholars trust the exercise of prosecutorial discretion and the common sense of juries to prevent unfair application of overbroad laws.30 History has not vindicated this trust, especially in times of national turmoil and fear. For me, a better democratic answer is for the courts to demand that legislatures enact clear, precise, and limited prohibitions on the real-time disclosure of only the most necessary of secrets. These statutes must neither be overinclusive or underinclusive (as are current laws). They should be capable of uniform application that constrains the power of the government to pick and choose. Precise codification is not a perfect solution to an intractable dilemma, but it would be a significant improvement over the unacceptable current situation.
As I write these words, the United States government is seeking to apprehend and try Edward Snowden, the former technical contractor for the National Security Agency, who disclosed classified information to The Guardian, which published it. The public is closely divided over whether Snowden, who was indicted for espionage and theft, is a heroic whistle-blower or a criminal traitor.
In vibrant democracies there will always be tensions between the government’s need to keep secrets and the news media’s need to reveal them. This is as it should be. Constant tension between the government and the press is an essential requisite of our informal system of checks and balances.
SPEECH CODES
I have always been close to being an absolutist against censorship. In my book Finding Jefferson I argued that “all speech should be presumed to be protected by the Constitution, and a heavy burden should be placed on those who would censor to demonstrate with relative certainty that the speech at issue, if not censored, would lead to irremediable and immediate serious harm.”31
I am particularly critical of the censorship of speech on university campuses in the name of “political correctness.”32 Universities should be the paradigms of open discourse, where students learn to debate and counter disagreeable opinions, rather than to censor them.
Yet despite my strong opposition to censorship, I have surprised both my supporters and detractors by calling for precise and narrow “speech codes” on campuses. My reasoning is simple: Censorship is inevitable on all university campuses in extreme situations; if a professor were to use the “N” word to call on an African-American student in class—or comparable taboo words to call on a woman, a Jew, a gay man or lesbian, a Latino, or an Asian-American—that teacher would be fired (or at least disciplined). There are other forms of expression as well that would simply not be tolerated in any university, public or private. Precisely what those are we don’t know (recall Carlin’s seven dirty words), but we will probably know them when we see them (recall Justice Stewart on hard-core pornography). Accordingly, there already exists a censorship common law at every university.
The issue, therefore, is not whether there is or should be any censorship of expression by universities. We already know the answer to that question: There is, and there should be in those kinds of extreme cases. I know of no responsible person or organization that would defend the right of a teacher to use the “N” word in calling on or routinely discussing African-American students. The remaining question is whether it is better to leave the decision as to which words in which contexts are prohibited to the after-the-fact discretion of an administrator, or to decide in advance on a list or category of prohibited expressions. In other words, is it more protective of freedom of expression to have a “censorship common law” to be applied on an ad hoc basis by a dean, or to have a “censorship code” debated and agreed upon in advance by the equivalent of the legislative branch of the university—a student or faculty senate or some other representative body.
I favor a narrow code over a potentially broad common law, because it provides advanced fair warning and an opportunity to challenge its provisions before they are enforced. (That’s why I also favor a narrow code criminalizing the publication of only the most dangerous state secrets.)
T
his controversial view regarding speech is paralleled, in some respect, by my equally controversial view regarding “torture warrants.” I am opposed to both censorship and torture, but I realize that both will be employed in extreme cases (in response to the use of the “N” word in the speech context, or in response to ticking-bomb terrorism with regard to torture). I prefer explicit and narrow limitations, with advance notice, visibility in both contexts, because they promote clarity and democratic accountability.33
Several years ago, there was an ugly racial incident at Harvard Law School that led to a campaign by some student groups for censorship of offensive speech. The dean appointed a committee to recommend an approach to this delicate problem. He put me on it because of my support for freedom of speech. My fellow committee members were surprised therefore when I proposed that we try to draft a speech code.
“I thought you were against censorship,” one of the libertarian student members said in frustration.
“I am,” I replied. “That’s why I want a code. I don’t trust the dean—or anyone else—to decide which speech should be prohibited.”
“No speech should be prohibited,” the student replied.
I then gave my examples of the professor and the “N” word.
“That’s different,” the student insisted.
“Then let’s try to codify exactly what else may be ‘different,’ ” I responded.
The committee spent more than a year trying to design a code of prohibited expressions. But we could not agree. The “N” word itself could not be prohibited because a black professor had written a brilliant book entitled Nigger: The Strange Career of a Troublesome Word.34 We tried to define the circumstances under which the “N” word could and could not be used. One person suggested that the “N” word could be used by blacks but not whites. Another suggested it could be used in a book but not in oral discussion. A third said it could be used as part of an academic discussion, but not directed at a particular individual. We couldn’t agree on this or other disputed expressions, such as opinions regarding negative characteristics associated with particular groups.
Taking the Stand Page 20
