Harvard Law Reviews WikiLeaks Censorship

Originally published on The Daily Censored for Project Censored

 

Harvard Law Professor Yochai Benkler is about to release a comprehensive study on the U.S. government and media’s role in censoring WikiLeaks. The forthcoming report , to appear in the Harvard Civil Rights-Civil Liberties Law Review, is titled “A Free Irresponsible Press: WikiLeaks and the Battle over the Soul of the Networked Fourth Estate.” In the report, Benkler dissects the mechanisms that have censored WikiLeaks.  

A working draft of the report has been made available online. The draft exposes how the U.S. government, mainstream media, and the emerging corporatocracy have been working together to infringe on the First Amendment Rights of the “networked fourth estate” sites, like WikiLeaks. Essentially, the government has been tripping over its feet to find ways to stop Wikileaks from expressing speech which Benkler argues is clearly protected by the U.S. Constitution and solidly supported by Supreme Court precedent.  

In the 66 page document, Benkler suggests the U.S. government has attempted to falsely frame the WikiLeaks revelations in a way to discredit WikiLeaks and Julian Assange. The false framing begins with what Benkler calls the “hurt America” argument. The report points to a string of statements made by Vice President Joe Biden, Secretary of State Hillary Clinton, Senator Joe Libermann, and Secretary of Defense Robert Gates. For example, the report quotes Biden’s claim that WikiLeaks is “more like high tech terrorist than the Pentagon Papers.” In addition, Clinton’s comment, “Let’s be clear: This disclosure is not just an attack on America’s foreign policy interests. It is an attack on the international community – the alliances and partnerships, the conversations and negotiations, that safeguard global security and advance economic prosperity.” 

Immediately after top U.S. officials falsely framed WikiLeaks as a terrorist organization engaged in an attack on America, the main stream media picked up on the false framing and ran with it. Benkler shows commentator after commentator, on all the main stream media outlets, began echoing the “WikiLeaks hurts America” theme. On top of the White House’s calls, Senator Lieberman, Chairman of the Senate Committee on Homeland Security, suggested the possible criminality of WikiLeaks actions, “I call on any other company or organization that is hosting WikiLeaks to immediately terminate its relationship with them. WikiLeaks’ illegal, outrageous, and reckless acts have compromised our national security and put lives at risk around the world. No responsible company – whether American or foreign – should assist WikiLeaks in its efforts to disseminate these stolen materials.” 

The problem with all this is that what WikiLeaks has done was nothing different than what The New York Times and The Washington Post has done. And besides that, the U.S. government’s own reviews have found that WikiLeaks has actually done little to nothing to compromise our national security. As Department of Defense Robert Gates has repeatedly said under oath, “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.” Gates followed up in a separate hearing saying, “The review to date has not revealed any sensitive intelligence sources and methods compromised by this disclosure.” 

Benkler explains, “The political attack on WikiLeaks as an organization and on Julian Assange as its public face was launched almost immediately upon release of the cables. Their defining feature was to frame the event not as journalism, irresponsible or otherwise, but as a dangerous, anarchic attack on the model of the super-empowered networks of terrorism out to attack the U.S.” 

With false statements coming from the State Department, key Senators, and the White House, major credit cards, Pay Pal, and host of other sites like Amazon cut off ties with WikiLeaks. Benkler points out that legally, the U.S. government did not have the right to shut down WikiLeaks. However, by a series of “extra-legal” means, the government was able to temporarily shut down the site and its revenue stream. Essentially, all the major corporate controls of the Internet, have now blocked WikiLeaks, as a result of a relentless government propaganda campaign to censor the organization.  

Benkler makes clear, that WikiLeaks has done nothing different than dozens of other mainstream media sources throughout our nation’s history. Benkler illustrates that WikiLeaks has published the very same material The New York Times, The Guardian, and Der Spiegle has published.  

Yesterday, the U.S. Army charged the alleged “source” of the leaked government documents, Private Bradley Manning, with 22 additional charges including “aiding the enemy.” Constitutional law scholar and best-selling author, Glenn Greenwald has been following the media and government’s attempt to censor WikiLeaks from the beginning. Writing in the online magazine Salon, Greenwald has published numerous articles documenting the attacks on whistle-blowers and journalists involved in exposing government corruption. Greenwald has documented the Obama administration’s escalating assault on protected speech.

In his most recent article, Greenwald explains the new charges and asks the very important question, who is the enemy Manning is charged with aiding? According to Greenwald, under Article 104(b) “a person is guilty if he “gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly” If found guilty of aiding the enemy, the court could sentence Manning to death.


Greenwald goes on to ask who is the alleged enemy? He points out that whether the government labels WikiLeaks or Al Qaeda as the enemy, the prosecution’s theory turns acts of whistle-blowing into a “hanging-offense”.  In addition, Greenwald argues that if Manning aided the enemy, than so did The New York Times and The Guardian.  To further support his argument, Greenwald quotes a Professor Heller:

“If Manning has aided the enemy, so has any media organization that published the information he allegedly stole. Nothing in Article 104 requires proof that the defendant illegally acquired the information that aided the enemy. As a result, if the mere act of ensuring that harmful information is published on the internet qualifies either as indirectly "giving intelligence to the enemy" (if the military can prove an enemy actually accessed the information) or as indirectly "communicating with the enemy" (because any reasonable person knows that enemies can access information on the internet), there is no relevant factual difference between Manning and a media organization that published the relevant information.”

Greenwald and Heller note that while newspapers and Wikileaks can’t be charged under the UCMJ, “there is still something profoundly disturbing about the prospect of convicting Manning and sentencing him to life imprisonment [GG: or the death penalty] for doing exactly what media organizations did, as well."

Greenwald concludes by stating, “It’s true that members of the military have legal duties that others do not have — including the duty not to leak classified information — but this incredibly expansive interpretation of what it means to "aid the enemy" dangerously encompasses all sorts of legitimate press and speech activities, especially when combined with the Obama administration’s escalating war on whistle-blowing and the journalists who expose government secrets. This is yet another step in infecting the law with doctrines of Endless War and its accompanying mentality.”

Greenwald, Heller, and Benkler put their fingers on a deeply disturbing development in America. While attacks on whistle-blowers and journalist that expose corruptions is nothing new, the intensity and veracity of the Obama Administration’s propaganda campaign and assault on WikiLeaks, along with the inhuman treatment of Private Manning, should sound off serious warning bells to proponents of the First Amendment.  Let us not forget, amongst other things, the WikiLeaks documents have shown a widespread American cover-up of torture in Iraq. Manning first attempted, to no avail, to use the chain of command to expose and bring to an end crimes against humanity. Since commanding officers did little to nothing about the criminality going on around them, under both the UCMJ and international law, Manning had a legal obligation to disobey orders. According to Greenwald, this issue was settled during the Nuremberg trials.

Whether we want to admit it or not, our government’s attempt to crack down on whistle-blowers and protected, free-speech is dangerous. This is a series and complicated issue. Most people would rather simply go on believing our leaders when the make public statements about our national security. However, just because Joe Biden and Hillary Clinton said it is so, doesn’t automatically make it so. Remember, the legendary journalist I.F. Stone once famously said, “All Governments Lie.” Why should the Obama Administration be any different?