Goldsmith and Friedman on WikiLeaks
By David Henderson
My Hoover colleague, Jack Goldsmith, a Harvard Law professor, has written an excellent post on WikiLeaks. It’s not long but here are some highlights:
I find myself agreeing with those who think Assange is being unduly vilified. I certainly do not support or like his disclosure of secrets that harm U.S. national security or foreign policy interests. But as all the hand-wringing over the 1917 Espionage Act shows, it is not obvious what law he has violated. It is also important to remember, to paraphrase Justice Stewart in the Pentagon Papers, that the responsibility for these disclosures lies firmly with the institution empowered to keep them secret: the Executive branch. The Executive was unconscionably lax in allowing Bradley Manning to have access to all these secrets and to exfiltrate them so easily.
I do not understand why so much ire is directed at Assange and so little at the New York Times. What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why? If not, why is our reaction so subdued when the Times receives and publishes the information from Bradley through Assange the intermediary? Finally, in 2005-2006, the Times disclosed information about important but fragile government surveillance programs. There is no way to know, but I would bet that these disclosures were more harmful to national security than the wikileaks disclosures. There was outcry over the Times’ surveillance disclosures, but nothing compared to the outcry over wikileaks. Why the difference? Because of quantity? Because Assange is not a U.S. citizen? Because he has a philosophy more menacing than “freedom of the press”? Because he is not a journalist? Because he has a bad motive?
In Obama’s Wars, Bob Woodward, with the obvious assistance of many top Obama administration officials, disclosed many details about top secret programs, code names, documents, meetings, and the like. I have a hard time squaring the anger the government is directing toward wikileaks with its top officials openly violating classification rules and opportunistically revealing without authorization top secret information.
Here’s David Friedman:
The question at this point is whether when the government fails to keep something secret, when it gives access to its secrets to someone who proceeds to pass them on, it is entitled to put the genie back in the bottle by making everyone whom they have been passed on to, at least everyone with the ability to publicize them, shut up.
Me: What Goldsmith and Friedman said.