David R. Henderson  

Goldsmith and Friedman on WikiLeaks

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If I were being provocative, I would have titled this, "Does Bill Kristol Think the U.S. Government Should Murder Bob Woodward or Bill Keller?"

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.



COMMENTS (13 to date)
Daniel Elmore writes:

For me, the most substantial question here is whether or not it's true, as has been alleged, that Wikileaks revealed the names of people in Iraq and Afghanistan who covertly assisted the US (and Australian) forces. If he did, in my book, the actions of those involved deserve legal punishment (I'll refrain from offering up a legal opinion as to whether or not there is legal basis here or in Australia to do so).

Prakhar Goel writes:

The point about the NYT is a good one. The obvious answer is that the NYT has a lot more clout. The fact is that newspapers have flagrantly violated the Espionage Act for some time and gotten away with it due to the aforementioned political clout they possess.

The notion that some subset of humans on the planet should have and keep secrets from all the rest of the humans on the planet is curious enough.

The attending notion that that some subset of humans on the planet should have the right, by force of law, to persecute others who learn of those secrets and make them "not secrets" seems simply bizarre.

But perhaps Thrasymachus was right; is it really just who has the biggest gun?

Dan Weber writes:

I don't like Julian Assange, but this seems like a pretty good summary of why he hasn't broken laws.

Now, maybe we want to change the law so that his behavior is illegal. But that would involve, y'know, changing the law.

I'm not sure we want to go there, but it's a discussion we should have.

Andy Hallman writes:

If government were run by angels, I think it would be wrong to harm their "foreign policy interests," because it could reasonably be expected that their interests were in line with the greater good. Such assumptions cannot be made about governments run by humans.

Bradley Manning revealed a number of ways in which the government has lied or covered up its involvement in torture in Iraq. This should cause a rational person to be less trusting of government, and more suspicious of the goodness of carrying out its will. It is not apparent, from reading folks such as Bill Kristol, that they have updated their beliefs in accordance with the new evidence.

One wonders whether their support for government is based on faith rather than data.

Kurbla writes:

I like Assange, and I believe that revealing of the secrets he collected will only help humanity, but in more general case, it is not maintainable politics.

Information can be very destructive; for instance, information on destructive virus that spreads like flu and kills like Ebola, that can be made with $20000 equipment by single competent biologist in garage of any doomsday cult. Would you still advocate free speech? Informations are not that dangerous yet, but very soon, very tight control of the distribution of information will be necessary (although not sufficient) condition for survival.

This is one of the few most obvious, large problems majority of people, both on the left and on the right side, do not want to see.

Tracy W writes:

The notion that some subset of humans on the planet should have and keep secrets from all the rest of the humans on the planet is curious enough.

What right does the rest of humanity have to know everything about everyone else?

The attending notion that that some subset of humans on the planet should have the right, by force of law, to persecute others who learn of those secrets and make them "not secrets" seems simply bizarre.

So you're opposed to witness protection programmes, and trade secret law as well?

But perhaps Thrasymachus was right; is it really just who has the biggest gun?

Not quite, ideas are important too. What the person with the biggest gun thinks is extremely important in determining what they do. One of the most amazing accomplishments of civilisation is how so many countries manage to have standing armies and civilian controls of those armies. So I don't think "just" is the right word.

I believe that revealing of the secrets he collected will only help humanity,

Actually in this case, I'm inclined to disagree. I think it will lead to diplomats being far more circumspect in what they say, which is a shame, as bluntness can be very useful. I'm prepared to be convinced that the upsides outweigh the downsides, but that there are no downsides strikes me as implausible.

Jaap writes:

What right does the rest of humanity have to know everything about everyone else?

at the moment it only works one way: government knows (virtually) everything about the people.

also, a strong argument I see with protesters:
"Is it a crime to reveal war crimes?"

Now, maybe we want to change the law so that his behavior is illegal. But that would involve, y'know, changing the law.

in my country it is ehh improper to prosecute someone for a law which wasn't there when the crime was committed. is it different in the US?

Dan Weber writes:

Just because one side in an argument is wrong, it doesn't mean the other side is right.

I do not like how many secrets the United States keeps. This does not mean I think it's a good idea for Assange to have the power to expose the secrets he doesn't like. He probably moves the dynamic closer to what I want, but while in theory I can hold the government responsible (through lawsuits, FOIA demands, or voting), Assange answers to me in no possible way whatsoever.

And he hasn't only been exposing the things he thinks are crimes or corruption. For a while that was his MO, but he's changed recently.

Exposing diplomatic cables between two countries isn't done to show crimes -- it's done to embarrass the countries involved and make their diplomatic actions harder. Assange has been explicit that he thinks this is good not because it exposes things, but because it will cause the US to become more secretive and less effective, and he doesn't like the US.

Thought experiment: is it okay to read the diary of the school bully over the school's PA system, not because it exposes any of his crimes but just to embarrass him?

So you're opposed to witness protection programmes, and trade secret law as well?

IANAL, but trade secret laws generally only apply to the first person to reveal the trade secret. If someone publishes a trade secret on the Internet, it isn't against the law for me to repeat it. Every NDA I have signed has excluded public information.

If we want to make repeating once-secret-but-now-public information illegal, we need to change the law. My initial reaction is that holding ordinary citizens responsible for knowing what is secret is probably a bad law. (When I held a security clearance, it was my responsibility.)

in my country it is ehh improper to prosecute someone for a law which wasn't there when the crime was committed. is it different in the US?

My point was that, first, the law would need to be changed, and then Assange would need to violate it.

Jacob Oost writes:
I do not understand why so much ire is directed at Assange and so little at the New York Times.

Because Assange looks and sounds like a fay little preppie weiner. I'm not necessarily saying that's *my* opinion, merely passing it along. Listen to what Rush Limbaugh is saying about him, he ain't the only one.

Also, the NYT was practically the right's favorite toilet paper for leaking American military secrets. Don't worry, the NYT gets plenty of hate.

Matthew gunn writes:

Question: Does the logic behind the "Pentagon Papers" case hold regardless of the quantity released?

To put it another way, would the "Pentagon Papers" case have been decided differently if the New York Times had published ALL PAPERS to pass through the Pentagon between 1945 and 1967? Back in 1971, this was not possible. But today, modern information technology makes this very much possible.

Matthew Gunn writes:

Furthermore, I'm surprised Henderson doesn't take a more economic approach.

(1) Is it efficient for SOME non-empty set of information to be kept secret from the public ?

(2) Assuming the answer to (1) is yes, what is the most efficient system to:
* keep secret material that should be classified?
* allow material that shouldn't be classified to leak?

Whether purposeful or not, the old status quo from the Pentagon papers up until recent times struck some sort of balance. Copying information was costly and journalists were reasonably responsible. Information of significant value to the public could get out, but physical and societal constraints limited the damage bad leaks could do.

A problem is that modern information technology may have massively shifted the equilibrium of what information will be kept secret. The price of publishing classified material massively dropped. Anyone can be a publisher. It's certainly worth analyzing what various responses to the Wikileaks case will have upon the equilibrium level of information leaked.

Clearly, going to far towards releasing classified information could be immensely damaging. For example, it would almost certainly be a bad thing if precise, detailed U.S. nuclear weapon designs were freely downloadable on the Internet. And if this were to happen, should the U.S. government be prohibited from at least trying to put the genie back in the bottle?

Dan Weber writes:

Secrecy will be achieved with a variety of technological, social, and legal factors.

On the technological side, access logs are pretty easy to implement. When someone is accessing several gigabytes of data, that ought to set off a red flag to a central office, who can quietly dispatch an agent to go take a look.

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