The Wikileaker should serve some time

Whoever sent a quarter-million U.S. diplomatic documents to WikiLeaks should go to jail.

This may be a minority opinion in the blogosphere, but here goes.

I want to see whoever sent a quarter-million U.S. diplomatic documents to WikiLeaks go to jail. Our government cannot operate in a dangerous world like this. I’m not just talking about fighting wars and killing terrorists here. I’m talking about the equally important art of quiet diplomacy, which requires candid conversations about sensitive matters within our government, and even more sensitive conversations with foreign officials, intelligence sources, human-rights activists, and countless others with whom a private word is often incredibly valuable.

A free press operates within a generally-implicit, but real tradition of checks and balances under which the government grants journalists broad lattitude to publish leaks and classified information, while journalists exercise some corresponding discretion in weighing the public’s right to know and the government’s legitimate interests in secret-keeping.

WikiLeaks, in particular, has shown troubling disregard for the legal, historical, and political context of this relationship. Dumping huge quantities of virtually unfiltered classified information onto the web that may (though this is a topic of legitimate dispute) endanger specific individuals is wrong and perhaps illegal.

I fear that the end result of episodes like this will be threefold: (1) Our diplomats and soldiers in the field will increasingly self-censor their opinions and operational views out of fear that someone will splash sensitive candid material across the internet. (2) Foreign officials, journalists, informants, and activists will be more reluctant to hold sensitive conversations with American officials, and (3) the American public will become much less supportive of responsible journalists exercising their first amendment rights after witnessing episodes such as this one.

I don’t know the motives of the leaker or leakers who provided this information. Perhaps they were disgusted by the carnage, the official wrongdoing, and the blunders in Iraq and Afghanistan. Perhaps they had more personal motives. Perhaps they acted out of a combination of reasons. Whatever the motive, this was wrong. I’m ready to be convinced otherwise. My gut reaction is that whoever did this needs to serve real time behind bars.

P.S. The incompetence of our computer security is equally breathtaking. The keystone cops aspect of this entire affair is rather depressing.

Author: Harold Pollack

Harold Pollack is Helen Ross Professor of Social Service Administration at the University of Chicago. He has served on three expert committees of the National Academies of Science. His recent research appears in such journals as Addiction, Journal of the American Medical Association, and American Journal of Public Health. He writes regularly on HIV prevention, crime and drug policy, health reform, and disability policy for American Prospect,, and other news outlets. His essay, "Lessons from an Emergency Room Nightmare" was selected for the collection The Best American Medical Writing, 2009. He recently participated, with zero critical acclaim, in the University of Chicago's annual Latke-Hamentaschen debate.

32 thoughts on “The Wikileaker should serve some time”

  1. I don't completely disagree, but these leakers still don't make my top 100 list of people who ought to be prosecuted.

  2. It was reported that the leaker is just a PFC, and it is a safe bet that in deciding to declassify thousands of documents, he exceeded his authority. The promulgator of the documents may have the occupational disease of many a moralist: being so sure he is acting out of righteous motives that he thinks he does not cast a shadow. Other people have a dark side, but not him. The very idea of "context" has no meaning for certain moralists who think that they are following a categorical imperative. Their acts are right in and of themselves, and consequences are not a factor in their calculations.

  3. > A free press operates within a generally-implicit, but real tradition of

    > checks and balances under which the government grants journalists broad

    > lattitude to publish leaks and classified information, while journalists

    > exercise some corresponding discretion in weighing the public’s right to

    > know and the government’s legitimate interests in secret-keeping.

    Exactly. For example, the informal checks and balances of the traditional press kept secret from the American public for more than a year that the US armed forces high command in Afghanistan held the President in contempt and had no respect for his electoral victory or his orders, until the story was written by someone who broke the conventions. It would have been _much better_ if the American public, the voters, the Citizens in whose name the war in Afghanistan is being conducted were kept in the dark about that, no?


  4. A free press operates within a generally-implicit, but real tradition of checks and balances under which the government grants journalists broad lattitude to publish leaks and classified information, while journalists exercise some corresponding discretion in weighing the public’s right to know and the government’s legitimate interests in secret-keeping.

    Which is what Wikileaks has done. They've leaked the cables to several major newspapers, all of whom have attempted precautions to protect lives. They've also gone to the trouble to redact names from the cables released on their website.

    As for the risk it poses to government . . . that's the danger and nature inherent in whistle-blowing. It always embarrasses someone, but it still has its place. Do you think America would be better off if the Pentagon Papers hadn't been leaked, for example?

  5. Some press accounts indicate that upwards of 3M folks in the U.S. had access to this information. That is likely sliced and diced different ways, and wide exposure with a media circus is different than access. And lots of non-U.S. people had access to lots of that information, probably from different frames, as well.

    But whas we're mainly talking about is the media circus – the spotlight – that Wikileaks is throwing. if ~1% of the U.S. population has access to something, that's hardly a secret. That's a consensus fiction.

    What Harold is complaining about is Wikileaks hijacking the narrative.

  6. We have an unfortunately rather long and depressing list of government officials, Republican and Democratic alike, lying to the public about very important issues where people, including innocent people died. We also have a rather long list of law breakers at high levels who are not even investigated. A sitting president was elected in part on promises of transparency which he has done little or nothing to keep.

    Why should we believe these people given their past behavior? Why trust that they care more about the American public than those American news media now publishing the data? Under the circumstances I believe that the whistleblowers are far better citizens than those who denounce them.

  7. Dumping 250,000 raw documents out onto the internet (which is what happened, by the way — the 'preview' leak went to media organizations, but all 250k are now available online for anyone to view) is irresponsible and illegal. Full stop. Agree with Harold.

  8. Nice. You have entrusted your entire political responsibility into a system which is clearly ran so incompetently and negligently that a tiny little guy managed to obtain 250K of supposedly critical and hush-hush information. And when that blew up, your first reaction is to call for punishment for the little guy. I gave you the benefit of the doubt the first time you did the whole 'discuss not the message, but how it was delivered' misdirection on the initial Wikileaks. This time I don't believe your words are in good faith – I think you are confused into believing an insane status quo to be the only way to run things (and all troublemakers be damned).

  9. Nate, it should be noted that Harold has stopped short of suggesting that Assange and his colleagues should be in jail. Nor has he said, for that matter, that the New York Times should face legal penalties.

    It is true that almost all of Harold's justification for jailing the leaker also applies to Assange and the NYT, but I think that's merely a lack of clarity in Harold's rhetoric, or his thinking. I'd be curious to see if he thinks the staff of Wikileaks, and Bill Keller, ought to be rounded up and jailed.

    Me, I think the leaker's actions were heroic. I will concede, however, that sometimes heroes break the law and have to go to jail.

  10. politicalfootball is right to distinguish the leaker from Assange and the NYT, in that Assange and the NYT are protected by the First Amendment, whereas the leaker is not. politicalfootball is also right that the leaker's actions were heroic. Excessive secrecy is the far greater problem in this country than is excessive disclosure. Obama's protests against the leaks cannot be taken seriously after he has used the state secrets doctrine to argue against information about Bush's torture being introduced in court.

    Amy Davidson at the New Yorker website notes that "more than ninety per cent [of the documents] are neither secret nor noforn [too delicate to be shared with any foreign government], and that, even those that are secret had “a very wide distribution among diplomatic, government and military circles,” and that about three million people are allowed to read “secret” things.

  11. I think Jamie's point here is important. It's probably foolish to think that other countries' intelligence and diplomatic services didn't have access (legitimate for all the stuff that's not noforn, covert to what is) to material that was so widely — if ostensibly privately — disseminated. So what's being interrupted here in many cases is the game where everybody pretends not to know what their friends and associates are saying behind their backs.

  12. Jamie's and Paul's points accentuate that the real problem here is that the U.S. government is embarrassed, not that any significant harm was done.

  13. Whatever makes diplomacy harder makes war more likely. That is worth getting bent out of shape about.

  14. I am rather stunned that I agree with Brett about something. But he's right.

    Think about it. This little guy has to go to jail. All the powerful torturers and grifters of the last ten years go free. Way to run a civilization.

  15. Without taking any position on the leak, it is highly ironic that a government that wants to listen in on virtually every conversation on the planet (if you have nothing to hide, …) is complaining about the exact same thing now their communications are made public.

    Pot and kettle anyone?

  16. @Ed Whitney – Excellent Strangelove reference in your first comment! (I can't let one go by without a thumbs-up.)

  17. I dunno…. isn't it possible that the ultimate lesson here is that there is entirely too much classifying going on? This makes what… 6 gazillion documents Wikileaks has dumped? I haven't seen a single chunk of fallen sky yet.

  18. I have yet to see any argument that is even remotely convincing to suggest Assange is protected by the First Amendment. Would someone care to make one? I seriously doubt a document dump qualifies as "the press". That isn't to say it's necessarily illegal under current law either, but I find the notion that it is protected dubious.

  19. I am impressed in a saddened sort of way that those who want legal penalties against the dumpers have ignored all or virtually all of the arguments as to why this is a bad idea.Some very good observations have been made here, and ignored.

    I will address tEd Whitney's comment on diplomacy and war. As anyone aware of the events leading up to our attack on Iraq knows, it was the secret stuff that led to war. All the public statements (lies) were in favor of a peaceful resolution. Maybe a little more openness at the time would have saved tens of thousands of lives.

  20. I have yet to see any argument that is even remotely convincing to suggest Assange is protected by the First Amendment.

    Assange is Australian.

    I find the notion that it is protected dubious.

    You might want to read this, then.

    Completely aside from such issues, I think he's just escalated a very dangerous game, and embarrassed a lot of powerful people. I wonder if there's anything in the insurance file that, say, Russian mobsters care about?

  21. It does not matter that Assange is Australian, in that, if he were prosecuted by the United States, then he could raise the First Amendment in his defense. Whether he would succeed is uncertain (despite my claim otherwise above) and might depend upon whether he participated in the leaks beyond being an innocent recipient of them. In The Florida Star v. B.J.F., 491 U.S. 524, 535 n.8 (1989), the Supreme Court left open the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the unlawful acquisition, but the ensuing publication as well.” In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that a statute prohibiting the publication of illegally intercepted communications violates free speech where the person who publishes the material did not participate in the interception, and the communication concerns a public issue.

  22. "I am rather stunned that I agree with Brett about something. But he’s right."

    Different Brett. 😉

  23. I defer to Henry's commentary – I'm not a lawyer. From a practical perspective, it clearly matters not a bit, empire will do what it wants. Folks are chattering about revising the AUMF – maybe we'll just declare war on Wikileaks.

  24. What's true for teenage rebellion is true for internet-enabled geopolitical leak-bombing: not every transgressive act is inherently moral, or smart, or helpful.

    The thing that bothers me about the Wikileakers (and here I'm talking about both the leakers and the leak-publishers) is their absolute denial of responsibility for the consequences of their actions. Strike that–their absolute denial of the POSSIBILITY of consequences for them to be responsible for. To hear Assange et al talk, you'd think that simply having the moral rectitude necessary to publish these documents also magically endowed them with the ability to know what was and wasn't safe to publish.

    And by "safe" I mean "not going to lead directly or indirectly to some person's life ending."

    Remember, they did redact some of the documents, and they did withhold some others. How did they know which ones were too dangerous for me (or Iran) to see? Are they smarter than the entire American government, or simply more morally pure? When they take that one tiny step away from a scorched-earth, categorical-imperative, all-that-matters-is-complete-transparency-no-matter-the-cost approach, they're basically saying that the proper agency to decide what should and shouldn't be secret is not a state or a military, but rather a few anonymous, unaccountable, volunteer… I almost said "experts," but I have no idea if they are.

    By the way, people have brought up the Pentagon Papers. Remember what those were: the considered analysis of the Defense Department itself. This was the US government indicting itself after the fact, although not with the intention of doing so publicly. Remember also that the act that ensured the permanent availability of those papers was a sitting, elected senator (Mike Gravel) entering them into the Congressional record. Ellsberg made his case to various senators first, before the NYT–against his wishes–began excerpting the copies he'd given them. It's a lousy analogy for the Wikileaks mess, especially considering what Ellsberg did next: essentially offered himself up for prosecution. I don't begrudge Assange or Manning or anyone in between the desire to stay out of jail; I do have a problem with the idea that because they're acting in the service to a higher ideal (i.e., the categorical imperative against all secrecy) they're not culpable in any way for the effects of their actions.

  25. "How did they know which ones were too dangerous for me (or Iran) to see? Are they smarter than the entire American government, or simply more morally pure?"

    They may well have been. You nonetheless have a point that it is possible that some of the documents they released could prove harmful. On the other hand, we cannot trust the U.S. government not to keep secret matters that that could not prove harmful, but could merely be embarrassing. Or not to keep secrets matters for no reason at all. Perhaps we should have a quasi-judicial, independent entity that passes on what documents may be kept secret. Let's not forget that, in a democracy, the government works for us.

  26. Henry, the average self-appointed Wikileaks analyst might be smarter than your average DOD flunky (or maybe not), but they were certainly less informed. If you steal 1% of my secrets, I still know 100% of what I know, and in the case of work-product of American intelligence agencies, that's a hell of a lot.

    In every good murder mystery novel, the pivotal clue is spelled out for the reader in plain language on page 6. "Hercule Poirot admired the neatly-tended rows of geraniums outside the late Mrs. Dottington's cottage…" It's only on page 200 when you're told that the victim had a rare geranium allergy that that seemingly trivial detail takes on extraordinary significance. Julian Assange could have deity-level comprehension of the stuff that got e-mailed to him; that wouldn't mean anything in terms of understanding its significance in light of what he did not know but that the American government did.

    And anyway, you're right–that DOD flunky works for me, in exactly the same way that Wikileaks does not. I'm all for better government, more accountable government, more responsive government, and above all government by government. If that means an Official Secrets Act, or a few constitutional amendments, or a Secrecy Review Board (and then maybe a Secrecy Review Board Oversight Panel, etc.), I'm game.

  27. Ed Whitney says:

    "Whatever makes diplomacy harder makes war more likely.

    That is worth getting bent out of shape about."

    Yes, if only Bush had been able to conduct secret diplomacy……..

  28. Interesting discussion, but to me, it is clear that Harold and Ed are right. Why is this different from insider trading? The leaker had to know he was in possession of information that needed to be safeguarded. So did Wikileaks. Both have committed a felony.

    Having said that, I both sympathize and am amused by Hillary's tantrum regarding the leaks. OK, the damage is done, but now the challenge for State, CIA, FBI, Homeland, etc. is to determine in what mode information can be safeguarded when it needs to be. Clearly, current technology provides immense challenges in this area. It's also clear that too much info is "classified" making it harder to keep any of it secure. Better that less is classified and that we can keep the really sensitive stuff under wraps.

    Just as an aside, in the name of political jabbery, this sort of puts the Valerie Plame outing in perspective, right? That affair was 100% political.

  29. I regard the moral question as probably a wash. Sure, there are moral hazards in leaking; but there are also moral hazards in not leaking.

    Most of this is non-news, including the non-news that Americans can't keep secrets.

    So I don't see this as much of a tragedy. But seen as _comedy_, now… it's gold. I mean… Gadaffi's "voluptuous blonde Ukrainian nurse"? The ChiCom senior official Googling himself and freaking out at being criticized? Ahmadinezhad slapped by the head of the Revolutionary Guard? Hey Moe, hey Larry!

    I was particularly impressed by the ability of diplomats to say nice things while thinking something entirely different.

    Even the nastier stuff is funny in a black-humor kind of way. Arab leaders quietly telling America to bomb Iran; and meanwhile Saudis are still funding terrorists. Karsai's drug-dealing brother. And so on.

    So damn straight some people are 'embarrassed' by this. But I'm not one of them. I instead feel embarrassment's natural counterpart:


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