From the Pentagon Papers to Wikileaks: Government Secrecy & U.S. Media Law

TitleFrom the Pentagon Papers to Wikileaks: Government Secrecy & U.S. Media Law
Publication TypeConference Paper
Author(s)Engelman, R.
Affiliation (1st Author)Long Island University
Section or WGLaw Section with CPT
DateWed 26 June
Slot CodeLAWW3A
Slot Code (Keyword)LAWW3A
Time of Session14:00-15:30
Session TitleLaw/CPT joint session: Transparency and Corruption
Submission ID4501

The proposed paper examines the legal issues that would come into play if Julian Assange is extradited to the United States and prosecuted for the release of government documents via Wikileaks. The paper will contrast the First Amendment issues raised by Wikileaks and the two court cases prompted by release of the Pentagon Papers: New York Times Co, v. United States, decided by the U.S. Supreme Court in 1971, and the subsequent prosecution of Daniel Ellsberg and Anthony Russo for theft of government documents and espionage in 1971-1972.  The proposed paper will also consider the Wikileaks-related case of Bradley Manning, arrested in 2010 on multiple charges, including violation of the Espionage act of 1917 and the Uniform Code of Military Justice.  A number of questions will be raised.  What is the extent and limits of the Pentagon Papers cases as precedents for a potential U.S. Wikileaks litigation?  How might changes in the political, legal and technological environment in the four decades since the Pentagon Papers affect the outcome of a prosecution of Julian Assange and Bradley Manning? Julian Assange has accepted political asylum in the Ecuadorian Embassy in London for fear that court proceedings regarding sexual misconduct in Sweden could result in his extradition to the United States, where he could face charges for releasing government documents.  Michael Ratner of the Center for Constitutional Rights has written that “There are clear signs that the US is on track to prosecute the Wikileaks founder, which, as his US lawyer, I advise him to heed, despite the denials of the Obama administration.”[i] Wiklileaks has precipitated the greatest controversy about government secrecy in the U.S. since Daniel Ellsberg released the Pentagon Papers in 1971.  In many respects Daniel Ellsberg and Julian Assange represent a study in contrasts of an insider and an outsider: one a former government policy-maker motivated by his reconsideration of the war in Vietnam, the other a hacker-activist committed to openness in government on a global scale.  Moreover, their release of secret government documents took place in markedly different, pre- and post-digital eras in communication history.  Yet Ellsberg has supported Assange as a kindred spirit in the fight against government secrecy.  And the outcome of the Pentagon Papers cases appears to buttress a First Amendment defense that Assange’s lawyers could make.  It will be argued, however, that the Pentagon Papers cases represented a greater political than weaker legal precedent in the struggle between government secrecy and the public’s right to know.  The Pentagon Papers and Wikileaks cases raise fundamentally similar questions, but in different political, legal and technological contexts.  The Pentagon Papers controversy unfolded at a time of growing opposition to the war in Vietnam during the Nixon Administration; today civil libertarians are on the defensive in a post-9/11 world.  The Obama Administration has aggressively pursued government whistleblowers and leakers, making unprecedented use of the Espionage Act of 1917.  The pursuit of such a hard line by a liberal, Democratic administration further disarms advocates of the First Amendment vis-à-vis government secrecy.  The changed makeup of the U.S. Supreme Court must also be taken into consideration.  In 1971 the two great First Amendment absolutists, Hugo Black and William Douglas, still sat in the Court, as did William Brennan, whose preferred position approach to the First Amendment was embedded in the outcome of New York Times Co. v. United States.  Today’s Supreme Court is not only more conservative; none of the liberal minority is a First Amendment champion on the order of Black, Douglas or Brennan. The Pentagon Papers contained historical material that ultimately appeared in newspapers, whereas Wikileaks has revealed more contemporary documents and videos distributed on the Internet as well as in print media.  Wikileaks represents what Noah C.N. Hampson has called “Hactivism: A New Breed of Protest in a Networked World.”  Yochai Benkler has written of the emergence of a networked global public sphere.  Such constructs raise important questions of jurisdiction and international law.  Any prosecution of Julian Assange would inevitably involve digital media law and the difficulty censoring Internet content.  A case can be made that “hactivism” as a form of journalism and protest deserves First Amendment protection, as the release of the Pentagon Papers did a generation earlier.  The question is whether such an argument will prevail in the U.S. today. The proposed paper draws upon the tradition of critical legal studies insofar as it examines the Pentagon Papers and Wikileaks cases in relation to political and social forces that shape First Amendment law in both instances.  It will be grounded in examination of relevant court opinions and a review of U.S. government policy and legislation.  These sources will be supplemented by perspectives from, Michael Ratner, Julian Assange’s U.S. lawyer, and the Bradley Manning Support Network. The legal struggle over the fate of Julian Assange and Wikileaks is germane for the conference theme of creative destruction and its challenge to the established communications order. [i] Michael Ratner, “Julian Assange is right to fear US prosecution.”, accessed 11/2/2012.

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