an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[On March 23, 2011, I delivered the 20th annual Hugo L. Black lecture on freedom of expression at Wesleyan University. I'm publishing the prepared text of the lecture in installments this week on Balkinization. Part One, Part Two, and Part Three have already appeared.]
VI. Prosecuting Wikileaks
I will return to the relationship between public power and private intermediaries in a moment. But before I do, you may be wondering about whether the government can prosecute Assange and Wikileaks consistent with the First Amendment.
In the Pentagon Papers Case, New York Times v. United States, the Supreme Court Justices agreed that the government could not halt the publication of the Pentagon Papers. These described how the United States got involved in the Vietnam War, and contained a lot of embarrassing materials that no doubt undermined U.S. diplomatic efforts. Daniel Ellsberg, a government contactor who worked for the RAND Corporation, had leaked the papers to the New York Times and (later) the Washington Post. The Supreme Court refused to enjoin publication, applying a version of the old clear and present danger test that goes back to the beginning of the twentieth century: Justice Potter Stewart’s concurrence explained that the test was whether “disclosure of [the papers] will surely result in direct, immediate, and irreparable damage to our Nation or its people.”
Since this is the Hugo Black Lecture on freedom of expression, you might be wondering what Justice Black thought about all this. I am happy to report that Justice Black connected the dots between the purposes of the First Amendment and the goals of information policy, arguing, to coin a phrase, that The First Amendment is an information policy for democracy. “The press,” Justice Black argued, “was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” In this case Justice Black was pretty clearly talking about the Vietnam War, but one could easily apply the same logic to more recent events in the past, including our country’s response to the 9/11 attacks and the decision to go to war in Iraq.
I have no idea what Justice Black would have thought of Wikileaks. I think, however, that he would find the government’s response, and especially Senator Lieberman’s request that private parties try to silence Wikileaks to be constitutionally troublesome. Remember that in the Associated Press case, he argued that although “[f]reedom to publish is guarantied by the Constitution, . . . freedom to combine to keep others from publishing is not.”
The Pentagon Papers case is different from the Wikileaks case in several important respects, however. First, unlike the New York Times, Assange acted outside the United States, and it’s not clear if he could be extradited; second, it’s not clear how American criminal law applies extraterritorially.
Third, and most important for our purposes, in the Pentagon Papers case, President Richard Nixon sought an injunction to prevent further publication; the Court rejected the request on the grounds that the injunction would act as an unconstitutional prior restraint on the press. However, several of the Justices noted that the 1917 Espionage Act was available for a criminal prosecution after the fact.
Perhaps, then, the constitutional standard for a criminal prosecution following publication might be lower. But it’s likely that some version of the clear and present danger test applies even to a subsequent criminal prosecution. As the Court explained in Bartnicki v. Vopper, a recent case involving a taped conversation leaked to a radio program, “`if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.’”
The Government can prosecute government employees or contractors who leak information to the press, but government cannot punish the press if it obtained the information lawfully and merely published what was leaked unless there would almost certainly be very serious harm to the nation. In this case, there’s been no showing yet that the Wikileaks revelations meet that standard. Wikileaks has been working with media organzations to redact names and other sensitive information before it releases the diplomatic cables. In fact, Secretary of Defense Robert Gates has more or less admitted that although the revelations in the cables are embarrassing, they are not life threatening and do not seriously harm national security. He said, and I quote: “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.’”
Compare the Wikileaks disclosures to the New York Times’ 2005 disclosure of the Bush Administration’s secret domestic surveillance program (which, in my opinion, almost certainly violated federal law). The Bush Administration and its allies insisted that the story would seriously jeopardize our intelligence gathering operations and damage our efforts in the war on terror. Yet the Bush Administration never tried to prosecute the New York Times for the disclosures. Indeed, the Nixon Administration never sought to prosecute either the Times or the Post after the release of the Pentagon Papers.
Is there anything that distinguishes Assange from the Times and the Post? He is not an employee of a traditional professional journalistic organization. But the doctrine of clear and present danger doesn’t turn on that distinction. Moreover, it’s worth noting that Assange has been working with the Times, the Guardian, and other European newspapers. It’s hard to justify prosecuting Assange if you are not going to prosecute the newspapers he’s been working with.
To be sure, the government can go after the original leaker. We believe that the leaker was Private Bradley Manning. And the government has gone after Manning with a vengeance. It has kept him in solitary confinement in a military prison in Quantico Virginia for months, in conditions that are well calculated to drive an ordinary person insane. He sits in a 12 by 6 foot windowless cell for 23 hours a day; he is allowed one hour of exercise and is prevented from falling asleep during the day; a guard is instructed to interrupt him if he dozes off. On March 5th it was announced that Manning was required to strip and sleep naked for several days. The Defense Department reports that he has now been issued “an undergarment” to sleep in. In an Orwellian move, the DOD refuses to comment on some of its specific procedures, citing respect for Manning’s privacy.
It’s clear that Manning is being deliberately punished well before he is ever convicted of a crime; he is being subjected to extremely harsh conditions that are not necessary to prevent his escape. Indeed, after a State Department official, P.J. Crowley, remarked that the treatment of Manning was “ridiculous and counterproductive and stupid,” he was forced to resign because his remarks then required Obama to defend the Pentagon’s actions. What Obama wanted to avoid above all was to discuss what the Defense Department is doing to an American citizen, who to this point, has still only been accused of a crime.
What is going on? Two things. First, the government cannot prosecute Wikileaks constitutionally if Wikileaks merely received Manning’s leaks. But it might be a different story if Wikileaks conspired with Manning to leak the materials. So one possible reason for the harsh treatment of Manning is to get him to tell the government that Wikileaks conspired with him.
There are two problems with this approach. First, if Manning does tell the government that there was a conspiracy, the question would then naturally arise whether his confession was legitimate or was the result of being coerced by the conditions of his confinement.
Second, the conspiracy theory is very difficult to distinguish from what professional journalists do. Professional journalists work with whistleblowing sources to get them to release leaks, often coaxing them and offering to help them over extended periods of time. It may be hard to distinguish the government’s theory from what Woodward and Bernstein did for Deep Throat in their coverage of the Watergate scandal, or indeed, what a wide range of investigative journalists do in coaxing information from disgruntled sources who provide leaks of sensitive government information.
A second possible reason for Manning’s harsh treatment is more likely, but also more troubling. The government may realize that it cannot prosecute non-government employees once sensitive information is leaked to them. Instead, they must simply redouble their efforts to ensure that leaks do not occur. (This is Justice Stewart’s point in the Pentagon Papers Case.) If that’s so, then the harsh treatment being visited on Manning right now is a message to all other government employees. Mess with us, the government is saying, and we will most assuredly mess with you, and we won’t even have to convict you of a crime to do it. Rather, we will throw you into a dark cell in solitary confinement, and slowly drive you mad.
It’s well worth asking how we got to a situation in which the United States government feels that it can do this with impunity. If Manning were a prisoner of war, or even a non-uniformed enemy combatant, his treatment would violate the Geneva Conventions. Former Attorney General Alberto Gonzales was famously quoted as saying that the Geneva Conventions were “quaint” and inapplicable to the war on terror; apparently President Obama has gone him one better; he apparently thinks the Bill of Rights as applied to American citizens is “quaint.” Manning should be prosecuted and punished if he is found guilty, but he should not be persecuted before the fact.