Open the Government plays David in the federal David vs Goliath world of information access. Once again the dynamo organization has risen to meet head on the digital dilemma de jour. This time it’s Wikileaks and the flood those leaks unleash. The FAQs about the Wikileaks controversy are totally on target. With thanks we share the gift of information from Open the Government. Following is a memo received today:
|OpenTheGovernment.org has worked with our partners to answer some of the questions transparency advocates are frequently asked about the WikiLeaks controversy, and have set up a site (https://sites.google.com/site/wikileaksandtransparency/ ) with some useful resources on the issue. While the answers below were developed with input and advice from a broad range of our partners, they do not represent and are not intended to be representative of a consensus view among our coalition partners, or the wider openness community. (View the FAQ’s online here: http://www.openthegovernment.org/article/articleview/458/)
WikiLeaks Frequently Asked Questions
Are the people working for WikiLeaks journalists?
Could Bradley Manning, or other accused leakers, and WikiLeaks be prosecuted?
The government interprets the Espionage Act to grant wide discretion in prosecuting leaks of classified information. Whether or not it is fair and appropriate to prosecute Pfc. Manning for choosing to violate his duty as a government employee to protect properly classified information is an open question that ultimately rests on whether one thinks the public good in exposing the information outweighs the potential harm to national security and the violation of the rights of innocent third parties. As more facts regarding the matter are made public as the prosecution proceeds, this debate will continue.
The case against WikiLeaks for violation of the Espionage Act is a much tougher sale for the government to make. As noted in a report by the Congressional Research Service (CRS), Criminal Prohibitions on the Publication of Classified Defense Information, Congress’ research arm is “aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.” The Department of Justice would be wading into untested waters to bring a case which could have disastrous ramifications. Prosecuting WikiLeaks would undoubtedly harm on our first amendment protections and have a chilling effect on the press. Further, were the prosecution to fail, we could expect Congress to revive old proposed amendments to the law that would likewise curb free speech and press rights, hurt information sharing and disclosure, and encourage more classification of information.
We hope that Congress will resist the impulse to move quickly and speak loudly in favor of a cautious, measured approach. On December 16, 2010, the House Judiciary Committee held a hearing on “The Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks.” The overwhelming sentiment of the seven witnesses testifying at that hearing was that Congress should focus its efforts on preventing leaks from within, not punishing those who receive or even publish such information. The Committee, and others with jurisdiction, should heed that advice and, in fact, collect more information before proceeding. The initial attempt to address the Wikileaks, the SHIELD (Securing Human Intelligence and Enforcing Lawful Dissemination) Act introduced on December 2, 2010, in the Senate as S 4004, contains several clearly unconstitutional provisions.
What should be done to better protect our national security?
The Administration should also push agencies to complete the Fundamental Classification Guidance Review, a procedure required by President Obama’s Executive Order on Classified National Security Information (EO 13526). Every agency that classifies information is supposed to seek out, identify and remove classification requirements that are no longer valid. The disclosures on WikiLeaks prove that much of what the government says is classified is not much of a secret at all. This overclassified information clogs our systems and prevents us from protecting the real secrets nearly as well as we should.
What is the relationship between the WikiLeaks case and the pending Whistleblower Protection Act, S. 372?
For more information on S. 372, see POGO’s fact sheet.
There is wide disagreement in the openness community as to whether or not Spc. Manning is a whistleblower: while much of the information he allegedly disclosed clearly benefits the public interest by exposing unnecessary official secrecy and potentially informing public debate about our government’s policies and actions, it is also argued that the sheer volume of the materials recklessly puts innocent parties at risk.