Commentary

Campaign against WikiLeaks Is Lawless

What’s surprising about Washington’s ongoing anti-WikiLeaks conniption isn’t what the purloined cables disclose about American foreign policy. Even Defense Secretary Robert Gates admits that, despite a few “awkward” exposures, the consequences for U.S. national security will be “fairly modest.”

No, what’s really telling is how Washington’s political class has reacted to WikiLeaks. As they see it, anyone who threatens to undermine government secrecy is morally equivalent to Osama bin Laden.

Senate Minority Leader Mitch McConnell, R-Ky., says that if existing laws can’t stop WikiLeaks, “we need to change the law,” dammit, because the organization’s founder, international man of mystery Julian Assange, is a “high-tech terrorist.”

Terrorism ain’t what it used to be. Apparently, today you can qualify just for embarrassing Secretary of State Hillary Clinton.”

Terrorism ain’t what it used to be. Apparently, today you can qualify just for embarrassing Secretary of State Hillary Clinton.

True, some secrecy is necessary, in business, war and diplomacy. And Congress and the Obama administration should take a close look at the vulnerabilities Assange has exposed. Why did an Army private have access to such a broad range of diplomatic cables, anyway?

Anyone who values the First Amendment ought to oppose the campaign to “get” Assange by any means necessary. In a free society, you can’t just “change the law” to persecute someone you don’t like, and you can’t abuse your position to silence speech you oppose.

Last week in the Wall Street Journal, Sen. Dianne Feinstein, D-Calif., demanded that Assange be prosecuted under the 1917 Espionage Act. After all, she wrote, the First Amendment isn’t “a license to jeopardize national security,” any more than it’s a license to “yell ‘Fire!’ in a crowded theater.” A poor choice of metaphor: It comes from Justice Oliver Wendell Holmes’ 1919 opinion in Schenck v. United States, when the Supreme Court allowed the Wilson administration to imprison a man for the crime of publicly arguing that the draft was unconstitutional.

We’ve since done a much better job protecting the First Amendment. In 1971’s New York Times v. United States, the Supreme Court rebuffed the Nixon administration’s attempt to stop the paper from publishing classified documents showing that the government had lied America into the Vietnam War.

WikiLeaks stands in the same position as the “gray lady” in New York Times v. United States, and since that case, the Congressional Research Service reports, no “publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.” “First Amendment implications” would likely “make such a prosecution difficult.”

Even so, Sen. Joe Lieberman, I-Conn., has suggested that U.S. newspapers could still be punished for publishing WikiLeaks’ leaks. Unsatisfied with mere threats, Lieberman has also gone outside the law, throwing his weight around to get Amazon.com to boot the site off its servers.

As new-media analyst Clay Shirky puts it, Myanmar and Russia “can now rightly say to us, ‘You went after WikiLeaks’ domain name, their hosting provider, and even denied your citizens the ability to register protest through donations,’ all without the slightest legal authority. ‘If that’s the way governments get to behave, we can live with that.’ “

The Obama Justice Department is exploring charges to bring against Assange, and, according to press reports, the administration is talking to Britain and Sweden about extradition.

They should think hard about whether that’s the outcome they want. People tend to romanticize outlaws, and in this case, he’s likely to beat the rap.

Assange may be an unsavory character using dubious methods. But this wouldn’t be the first time a creep got to vindicate a vital constitutional principle.

Gene Healy is a vice president at the Cato Institute and the author of The Cult of the Presidency.