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State secrets in the age of the internet; US must not step round the law to attack WikiLeaks
Source: Financial Times
Source Date: Friday, December 10, 2010
Focus: E-Accounting, E-Customs
Created: Dec 14, 2010

It is central to the self-image of the US that it is a government of laws not of men. Washington must cleave to this principle in its response to the ongoing provocation of the WikiLeaks disclosures.

As the volume of revelations has mounted, US frustrations have become evident. In the heat of the moment, irresponsible politicians, such as Sarah Palin, have urged the government to take extra-legal steps against the website's founder.

Government employees have been warned not to download the leaked documents. WikiLeaks websites have been subject to denial of service attacks from unknown quarters. Certain organisations that trade with WikiLeaks - or process payments on its behalf - have withdrawn their services. While some claimed to have done so only because WikiLeaks violated customer agreements, PayPal has now said that it did so at the behest of the US government.

The US has already arrested the alleged leaker of the secret documents. But it would also like to exact retribution against Julian Assange, the founder of Wiki-Leaks. He is in custody in the UK and may face serious charges in Sweden. If Mr Assange's activities in disclosing documents amount to a crime under US law, he should of course stand trial. But it is far from clear whether he has committed any crime.

That he may not have done so is a testament to the very strong commitment of the US to freedom of speech - even when this involves the disclosure of sensitive government information. The US Supreme Court enshrined this principle in its 1971 judgment in the Pentagon Papers case, upholding the right of the New York Times and other newspapers to publish secret documents relating to the Vietnam war, and placing a "heavy burden" on the government should it seek to restrain such disclosure.

The government has sought to unearth some archaic legislation, dating from the first world war, that might allow it to prosecute, but it is far from certain that this is fit for the purpose. It is in any case unclear whether Mr Assange has committed any offence that falls within US jurisdiction.

Mr Assange is a potent opponent both because of his ideas and for the way he has harnessed technology to his purpose. His object is not to achieve specific disclosure but to attack secrecy per se. He has the ability to disseminate vast quantities of secret information through his website-cum-clearing house. By establishing it as a disembodied entity, he has sought to put his organisation beyond any jurisdiction's enforcement.

Mr Assange's idea that states should not keep secrets is untenable. Certain things should clearly be kept confidential, such as military secrets. Imagine if the plans for the atomic bomb had been published in 1943. Most would agree that those offering advice to governments, such as diplomats, should be able to do so in confidence.

But the US should not reach around the law to seek to punish Mr Assange. Defending secrecy by subverting the rule of law is a very poor bargain. It should learn lessons from what has happened.

These should be twofold. First the US must look at the law and decide whether it is adequate for the job of defending those secrets it needs to protect. If existing legislation needs to be strengthened, it should be.

Senator Joe Lieberman has for instance put forward a law that would put extra constraints on the publishers of secrets. If enacted it would in some ways roll back the Supreme Court's 1971 judgment. This may not be desirable - or constitutional. But debating new laws rather than bending existing ones must be the way to go.

Second, the US must become better at keeping secrets. That means focusing on those that it is really necessary to keep. If you are going to punish transgressions more harshly, you should probably apply this to fewer, bigger secrets.

In any case, promiscuously expanding the realm of state information sealed from scrutiny, as the US has done, is both ineffective and counterproductive. It not only encourages citizens to snoop but makes secrets harder to keep.

If these lessons are not learnt, state employees will become reluctant to keep written records. The quality of public administration will suffer. Historians will struggle to piece together (and learn from) what happened in the past.

Mr Assange's public appeal comes partly from the belief that states lie and step around the law when it suits them. It would be unfortunate if the US response gave currency to that belief.

 

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