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WikiLeaks and the Future of Whistle-blowing

In the run-up to a debate on WikiLeaks, Julian Assange’s attorney discusses the uncomfortable relationship between the free flow of ideas and the inclination of governments to make everything a secret.

Mark Stephens, the British attorney for WikiLeaks founder Julian Assange, is traveling to the United States this week for a debate hosted by Index on Censorship and the Columbia University Graduate School of Journalism on the impact of the whistle-blowing site for journalism, national security and government secrecy. The event, set for Wednesday night in New York, is open to the public. (The Idea Lobby’s Emily Badger is also the U.S. editor for Index.)

The panel, chaired by Index’s chief executive, John Kampfner, will also include investigative journalist and security services expert Andrei Soldatov; Emily Bell, director of the Tow Center for Digital Journalism; and Washington Post columnist Richard Cohen.

Ahead of the debate — and on the heels of WikiLeaks’ latest release of hundreds of documents from Guantanamo — Stephens talked with about the U.S. government’s reaction to WikiLeaks, what the site’s existence says about the problem of overclassification, and how the flow of official information will forever be changed in the new era of digital leaks.

Below is an edited transcript.

THE IDEA LOBBYMiller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

Miller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

Miller-McCune: In what way has WikiLeaks permanently altered what you refer to in this debate as “the information war”?

Mark Stephens: The genius of Julian Assange was really to spot the gap in the market.

For years, traditional media have had the drop box where you can anonymously put a brown envelope to the newspapers, and many people have done that. But the problem with this [type of] whistle-blowing was that people are often able to identify the leaker by the documents, because many of the documents are now in a situation where governments put secret identification features into them, such as a zero or an O will be filled in on page 12, 13, 14, 15, depending on which personnel it was distributed to. That’s a very basic idea, but there are similar kinds of things you can do so you can go back and track — if you ever get the document — who it came from.

What Julian did was he made an organization which was stateless, and therefore, not as susceptible to the national laws in any individual state. He also made the organization international in the sense that a thousand people work with WikiLeaks around the world, and so if he becomes indisposed — as he was when he was in prison — for any length of time, there are many other people who can step in and did, and the organization carries on. He’s got resilience built in. And as far as the person who is leaking is concerned, through his computer genius, he’s been able to devise code which makes it impossible for the person receiving the electronic files to know who sent them.

Mark Stevens, lawyer for Julian Assange of WikiLeaks.

Mark Stevens, lawyer for Julian Assange of WikiLeaks.

This is incredibly important, as documents which are given to journalists [today] tend to come in CDs full of material, rather than the old-fashioned folders of documents. The material is downloaded from computers, it’s a lot more material, a lot more to digest. From that perspective, you’ve got a sea change in the way in which information is flowing to the media. And of course, what has happened is it’s obviously been successful by the very fact that traditional media has followed WikiLeaks to try and develop their own electronic drop boxes.

M-M: Do we have to wait for the legal limbo around WikiLeaks — and the U.S. government’s criminal investigation into it — to be resolved before we truly know the impact the site will have in the long run on how the media operates?

MS: It’s fair to say we don’t know the full ramifications, but I think what we can say is that the government reaction has been to clamp down on leakers. There has been a sharp increase in the seeking out and threats to whistle-blowers, and people who have whistle-blown have been prosecuted criminally. So there’s an attempt to choke off the supply of information to the media. That is, of course, worrying for all media, whether traditional or otherwise, particularly somewhere like Washington — where leaking and counterleaking and briefing, particularly of confidential and secret material, is part and parcel of the oil that wheels Washington.

One of the other things that we can say [is] that there is an attempt at fairly crude forms of censorship, and those have taken two forms. One is the denial-of-service attack, which was launched against WikiLeaks repeatedly, and that, obviously, made it a bit more difficult for them to function. We also see economic censorship in the sense that many American credit card companies stopped dealing with WikiLeaks. Governments clearly have a remedy and a response, but it is at the moment taking fairly crude forms of censorship and attacks on whistle-blowers.

M-M: In the Pentagon Papers case, the Supreme Court established that the act of publishing leaked information is not in and of itself illegal. But what about the repercussions for the leaker himself?

MS: I have thought about this fairly carefully, and I think it’s a fairly harsh thing to say, but people who whistle-blow very often do so understanding that they are breaking the law. And the question is: What do you do about the whistle-blower? It seems to me that clearly the media must do everything it can to protect the identity of the whistle-blower. One of the calculations that the whistle-blower makes when deciding whether to blow the whistle is: 1) How important is this? and 2) Am I going to get caught?

One of the factors in that is: Will the media give me up? If they are outed, if they are identified through traditional police work, or even through the assistance of the media, then in those circumstances, that person has to understand that they’ve broken the law, and they must take the consequences. There’s a further calculation they’re making, which is to say, effectively, if you break the law, your defense is actually in the court of public opinion. You make the judgment that the issue about which you are leaking to the public is of such moment that the public will be appalled and outraged, and that will be your defense — that [the government] will not prosecute you as a result.

M-M: Is the government entitled to keep any of its secrets?

MS: It is the government’s job to keep its own secrets, and it is the media’s job to be a check and balance on that. For myself, clearly I would accept that the government must have its secrets. But as Richard Dearlove, the former head of MI6, has said, the state should have its secrets, but not as many, and not for as long as most people think. That’s the critical factor.

Most right-thinking people would say yes, of course [information that would endanger lives or harm anti-terror operations] should be secret. But I have to say, I think it is shameful that 50 years on from the Bay of Pigs invasion in April of ’61, the CIA has blocked the release of the official history of that disaster. This is nothing short of holding history for ransom while it is politically expedient to do so. A soldier who took part in that, or an activist who took part, who was 20 at the time would now be 70. The plans for that invasion have long since lost any sensitivity, and there’s no reason why those documents should not be in the public domain.

M-M: Is there a direct relationship between a flawed freedom-of-information system like the one you’ve just described and the rise of whisteblowing outlets like WikiLeaks?

MS: Freedom of information has been a good thing since 1766 when the Swedes first passed a freedom-of-information law. The theory in democratic society is that we know all things of moment so that we can make up our minds about the issues of the day. If we’re not told most of the important matters on which to base our decisions, then clearly they’re going to be skewed. If you have a freedom-of-information system which is defective, if you have an exponential increase in classification like we’ve seen in the last two to five years, where the classification graph goes up virtually vertically, at that point, you are going to see far more people whose consciences are going to be pricked to become whistle-blowers. The dysfunctional nature of freedom of information, the overclassification, means that people are not going to stand for that lack of accountability in government.

M-M: Do you think the distinction matters — as some people have suggested that it does — whether WikiLeaks was a passive recipient of the documents it leaked, or an active party in encouraging sources to break the law and leak them?

MS: To some extent, journalists have to expect that the full, unvarnished ways in which they do business are now going to come under some public scrutiny. Every single news organization, every single security correspondent, every single journalist who has done any cutting-edge news reporting will have sources who have access to classified information, and they’ll have classified information revealed to them. They will have said, in the course of conversations [with sources], “Actually, that’s interesting, but we think there’s an interesting story here,” or “Do you have more on that particular subject?”  In the overwhelming majority of cases, I think everybody around the world would recognize that as a normal journalistic endeavor. It’s about seeking out the secrets; it’s about holding the government accountable. It is not about counseling or procuring a crime, which is, I think, what people who have spoken of this have said. It’s a normal part of journalism.

If we are to criminalize journalists because that’s what they do, then you have to criminalize every journalist who has undertaken that, and that’s an awful lot of them.

M-M: Some of the U.S. media outlets that have worked with WikiLeaks, such as The New York Times, have been careful to draw a distinction between what they do (journalism), and what WikiLeaks does (providing information as a source). Is this a fair distinction?

MS: The first question I ask is: Why does it matter? In the U.K., it makes no matter whatsoever. So that’s the first thing, but in America it may make a difference to shield laws. But it seems to me that [the distinction]fails to recognize that WikiLeaks is evolving and changing. When WikiLeaks first started, it was a pipe where people pushed information through it, and it appeared online. There was very little in intermediary activity. Now the documents that we see coming in are checked and verified, their authenticity is verified, there’s quite a lot of work done in analyzing them, in putting them into context and background reporting. All of that seems to me to be a journalistic endeavor, an editorial endeavor.

Then you come back to the more prosaic descriptions of what is Julian Assange? Well, he’s certainly a publisher. So are we saying that he doesn’t get the protections of publishers? Does that mean every person who owns a publishing house, like Rupert Murdoch, is not entitled to these protections? I think clearly he is, clearly his editors are. And I think he’s the editor-in-chief — he carries out the functions of an editor, and he also carries out the functions of a journalist. I think those, for me, are the real issues.

M-M: How do you think the U.S. government should have reacted to WikiLeaks?

MS: I think the sensible reaction is probably the reaction I’m seeing from most senior [British intelligence] people. When they came to see me, they wanted to be reassured that nobody was going to be killed or going to be harmed, that that information was going to be redacted. Once we’d agree to that, [a security services official] said, well, of course, the Americans are the augers of their own misfortune.

He said every other country in the world is not allowed to electronically copy to more than a thousand people any [classified] information whatsoever. And when they do copy information to that many people, he said, “we work on the assumption we’re penetrated by the Russians, and Chinese, or anyone else. And so, of course, we put stuff in there for them, as they’d expect us to!” The fact that this [U.S.] information was copied to 2.5-3 million people tells you there was very little security. As the guy from the security services said, the only people who didn’t know about this were the electorate.

The second thing I would say is, about the protestation that there was going to be huge damage and harm, I suspect there was an uncomfortable weekend of a few calls, and at worst, the American ambassador to Libya had to be recalled because Col. Gadhafi took exception to some of the rude things written about him. But has that done us any long-term harm? Would that man staying in Libya have done any difference?

We were told the diplomatic world would fall apart, and in fact, it hasn’t. There’s been embarrassment; there hasn’t been disaster. The sensible, grownup thing to do would have been to understand this was probably a once-in-a-lifetime event; it is unlikely that this kind of electronic dump is going to recur, at least not in the immediate future.

I would have brought my electronic rules in line with every other proper country in the world, and at that point, I would have said, “OK, well, let’s batten down hatches for a while and see how we ride this out.” The American government can’t have it both ways — to say this is going to be a cataclysmic disaster while at the same time saying to everybody, “We haven’t learned anything new.” Those two things are irreconcilable.

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