by Joshua Holland
December 3, 2010
Joshua Holland is an editor and
senior writer at AlterNet.
He is the author of The 15
Biggest Lies About the Economy (and Everything else the Right
Doesn't Want You to Know About Taxes, Jobs and Corporate America).
Drop him an email or follow him
Julian Assange's stated goal is to
provoke an over-reaction that will expose authoritarian governments.
He may get his wish.
Media speculation about the motives behind
Wikileaks and its mercurial founder
Julian Assange is somewhat entertaining
in light of the fact that Assange has
laid it out in great detail - in essay form, no less.
Assange is an anarchist whose stated goal is to provoke an over-reaction on
the part of the state that will expose its authoritarian nature, turn it
inward in a spasm of paranoia and ultimately prevent it from functioning.
And he may get his wish. This week, Senator Joe Lieberman, I-Connecticut,
persuaded Amazon to take down the “cable-gate” files it had been hosting on
Reuters reports that,
“government lawyers working on the Justice
Department investigation are trying to be ‘creative’ in their
exploration of legal options” against Wikileaks and Assange.
Rep. Peter King, R-New York, the incoming
head of the House Homeland Security Committee, said Wikileaks should be
designated as a terrorist organization. He wasn’t alone. Others,
including an adviser to the Canadian prime minister, have called for
All of this is part of a larger, and wholly irrelevant debate - or series of
debates - over the importance of Wikileaks.
Are these dispatches going to result in
even more secrecy in the future?
Will they cause a massive setback in
diplomacy, leaving us only military options for influencing other
Or maybe the cables will have a salutary
effect, shining needed light on a murky and secretive function of
Is secrecy a bad thing in and of itself?
And what of Assange?
Is he a dedicated whistleblower willing
to risk everything to “speak truth to power,” or a malign narcissist
whose goal is simply to turn himself into a worldwide media star?
The reason these debates are largely irrelevant
- and calls to do something about Wikileaks are dangerous - is
Legally speaking, it’s virtually impossible to
distinguish between an organization like Wikileaks and any other online
media outlet - publications like the Christian Science Monitor, or
And, legally speaking, it’s virtually impossible
to distinguish between someone like Assange and any working journalist
hanging around the newsroom of your local paper. Every single day,
journalists try to induce insiders to release confidential information to
them and every single day they publish that information. It’s the heart of
Wikileaks is a private operation, and Assange is a private individual, so
whether or not you or I or the pundits or the White House likes what they’re
doing is immaterial.
The only question that should be asked is: did
the release of “cablegate” break the law?
Both Politico and Reuters asked legal experts that question, and the answer
is, in all likelihood, no. Wikileaks might have committed a crime had it
been connected to a foreign government, but that hasn’t been alleged.
According to Reuters,
“Other parts of U.S. law make it easier to
prosecute people for unauthorized disclosures of undercover U.S.
intelligence officers' identities and classified information related to
nuclear weapons and electronic eavesdropping… But there is no evidence
that Assange or WikiLeaks has trafficked in materials that would fall
under those statutes.”
Some have argued that the leaks are akin to
shouting fire in a crowded theater, the classic exception to the right of
It’s an argument that might hold up in a
third-rate publication’s opinion pages, but would be laughed out of any
court in the country, because the Supreme Court has interpreted the
exception very narrowly. It only applies to “advocacy of the use of force or
of law violation... where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.”
That there may be something in thousands of published documents that could
hypothetically cause someone harm somewhere in the world at some point in
the future doesn’t cut it. And government actions to proscribe what the
press may publish must be held up to “strict scrutiny” - a very high legal
But the embarrassment the leaks are causing the establishment is so great
that there is intense pressure on the Justice Department to “be ‘creative’
in their exploration of legal options.”
And to do that, they’ve tried to create a false
distinction between traditional journalism and what Wikileaks does.
State Department spokesman P.J. Crowley told CNN that the idea that Assange
is a journalist is "nonsense.”
"Julian Assange is an anarchist and we’re
not going to let him succeed,” Crowley said.
And Pentagon General Counsel Jeh Johnson said on
Thursday that in his “personal opinion” Wikileaks “is not media.”
According to Politico’s
“Officials, including Attorney General Eric
Holder, also seem to be trying to separate Assange from the journalistic
herd-moving to diminish any sympathies members of the press might have
for Assange by suggesting that his actions are altogether different from
those of reporters.”
Holder offered up a subjective criterion for
what makes a journalist.
"One of the distinctions that I draw
between...some of the people, organizations involved in this and others
are that some have acted, I think, in a responsible way."
So those calling for something to be done to
punish Wikileaks are in fact advocating the position that any media outlet
that, in the opinion of the Attorney General, publishes something
“irresponsibly” can be subject to similar sanctions.
That’s an awfully slippery slope in a democracy. But judging by the volume
of those shouting that Wikileaks is some kind of terrorist organization,
Assange may yet get the over-reaction he seeks.