In WikiLeaks fight, U.S. journalists take a pass

McClatchy NewspapersJanuary 9, 2011 

Icelandic lawmaker Birgitta Jonsdottir poses for this photo Feb. 24, 2010 at an unknown location. In a statement, Saturday Jan. 8, 2011, WikiLeaks said U.S. investigators had gone to the San Francisco-based Twitter Inc. to demand the private messages, contact information and other personal details of WikiLeaks founder Julian Assange and other supporters Assange has promised to fight the order, as has Jonsdottir, who said in a Twitter message that she had "no intention to hand my information over willingly." (AP Photo/HO)

WASHINGTON — Not so long ago, WikiLeaks founder Julian Assange could count on American journalists to support his campaign to publish secret documents that banks and governments didn't want the world to see.

But just three years after a major court confrontation that saw many of America's most important journalism organizations file briefs on WikiLeaks' behalf, much of the U.S. journalistic community has shunned Assange — even as reporters write scores, if not hundreds, of stories based on WikiLeaks' trove of leaked State Department cables.

Some call him a traitor, responsible for what's arguably one of the biggest U.S. national security breaches ever. Others say a man who calls for government transparency has been too opaque about how he obtained the documents.

The freedom of the press committee of the Overseas Press Club of America in New York City declared him "not one of us." The Associated Press, which once filed legal briefs on Assange's behalf, refuses to comment about him. And the National Press Club in Washington, the venue less than a year ago for an Assange news conference, has decided not to speak out about the possibility that he'll be charged with a crime.

With a few notable exceptions, it's been left to foreign journalism organizations to offer the loudest calls for the U.S. to recognize WikiLeaks' and Assange's right to publish under the U.S. Constitution's First Amendment.

Assange supporters see U.S. journalists' ambivalence as inviting other government efforts that could lead one day to the prosecution of journalists for doing something that happens fairly routinely now — writing news stories based on leaked government documents.

"Bob Woodward has probably become one of the richest journalists in history by publishing classified documents in book after book. And yet no one would suggest that Bob Woodward be prosecuted because Woodward is accepted in the halls of Washington," said Glenn Greenwald, a lawyer and media critic who writes for the online journal Salon.com. "There is no way of prosecuting Julian Assange without harming investigative journalism."

Woodward, who rose to fame by exposing the Watergate conspiracy that forced President Richard Nixon from office, told a Yale University law school audience in November that WikiLeaks' "willy-nilly" release of documents was "madness" and would be "fuel for those who oppose disclosure." But that appearance came before U.S. Attorney General Eric Holder launched a criminal probe against Assange. Woodward didn't respond to e-mails seeking comment.

Woodward's newspaper, The Washington Post, however, is one of the few that's editorialized against prosecuting Assange. "The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets," the Post said.

Assange increasingly has presented himself as a journalist in the weeks since Holder's threat to bring charges. He's the website's editor, and WikiLeaks publishes editorials.

Few could argue that WikiLeaks didn't perform journalistic functions in April when it released video taken from an Army helicopter of a 2007 incident where Army pilots fired on civilians in Baghdad, killing 17 Iraqis, including two employees of the Reuters news agency, and wounding two children. In addition to editing and captioning the video, WikiLeaks interviewed the Iraqi families about the incident. The release of the video, which Reuters had sought for years but had been denied, was widely covered by U.S. news organizations.

U.S. journalists have been far less zealous about WikiLeaks, however, in the ensuing months, as the Obama administration has mounted increasingly vocal attacks on the organization over three batches of leaked U.S. documents — military logs of events from the war in Afghanistan, including the names of Afghans who'd cooperated with the U.S.; initial incident reports from throughout the Iraq War; and most recently, thousands of diplomatic cables.

The problem with speaking up for WikiLeaks now, said Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, one of the country's most prominent defenders of press freedom and one of the groups that backed WikiLeaks in its 2008 court case, is that she doesn't consider Assange to be a journalist.

Assange, she said, "has done some things that journalists do, but I would argue that what the New York Times does is more journalism. They vet the information. . . . They consider outside sources. They take responsibility. They publicly identify themselves. . . .They do some value added. They do something original to it," Dalglish said.

She added that part of her hesitation to back Assange is that the public knows so little about him and how he acquires information.

WikiLeaks "takes secrets. But they are secretive. We don't know who they are. I think one thing journalists pride themselves on is transparency. I think people are a little apprehensive because he was releasing information last summer he had an agenda to bring down the U.S. government," she said. "I think that makes people reluctant to jump into making a statement."

Greenwald rejects that argument. He noted that U.S. journalists often don't reveal their sources or how they gather information for stories.

Greenwald said he thinks journalists aren't rallying to defend WikiLeaks because it has no building, no ties to the U.S. and doesn't feel obliged to consult with the U.S. government before publishing. The issue, he said, is that American journalists too often befriend the government and seek its approval for their work.

Besides, he said, the Constitution protects everyone's right to publish.

"What matters is the activity itself and not who the person is. Bob Woodward is no more entitled to publish classified information than some random person out of the phone book," Greenwald said.

Greenwald's position is echoed by Joel Simon, the executive director of the New York-based Committee to Protect Journalists, another prominent U.S. advocacy group that's made one of the rare public arguments against prosecuting Assange.

Simon said he and his colleagues had an extensive debate about whether to speak up. In the end, they determined that debating whether Assange is a journalist is irrelevant.

"If he is prosecuted, it will be because he is a journalist," Simon said.

The group sent a letter to Holder on Dec. 17 urging him not prosecute Assange, warning that it could have a chilling effect around the world.

"There is a commonality of purpose," Simon said in an interview. "The function of WikiLeaks is to take information, particularly classified information, and distribute it to the public. From a legal perspective, it is essentially a journalistic function. We have to respond when there is a threat to journalism."

The current situation even has split former allies in the battle over press freedom. Daniel Ellsberg, who leaked the Pentagon Papers to The New York Times in 1971, has come out strongly in support of WikiLeaks. But Floyd Abrams, who was the Times' attorney in its fight against the Nixon administration's efforts to block publication, has taken the opposite position.

In an opinion piece in the Wall Street Journal, Abrams noted that Ellsberg himself kept secret four volumes of the classified Pentagon history that became the Pentagon papers because he feared they'd harm diplomatic efforts to end the Vietnam War. Abrams said WikiLeaks' publication of so much secret material could lead to tougher restrictions for U.S. journalists.

"His activities have already doomed proposed federal shield-law legislation protecting journalists' use of confidential sources in the just-adjourned Congress," Abrams wrote. "An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense."

And if Assange isn't indicted or is acquitted of any charges, Abrams warned, Congress might pass "new and dangerously restrictive legislation."

There was no such debate in February 2008, when 12 journalism organizations, including the Associated Press and Reporters Committee for the Freedom of the Press, filed a brief on behalf of WikiLeaks and its domain register, Dynadot, in a case brought by a Swiss bank, Bank Julius Baer.

The bank filed the suit after WikiLeaks published hundreds of private documents on a land deal that suggested money laundering and tax evasion. It asked a U.S. district judge in California to enjoin WikiLeaks from publishing the documents and order Dynadot to stop hosting its website.

The judge agreed, but quickly reversed his order after the U.S. journalism organizations weighed in, calling the decision an affront to the First Amendment and WikiLeaks' right to publish.

The Justice Department now appears serious about building a case against Assange, though it remains unclear which law he violated — officials acknowledge that the Espionage Act of 1917 has never been used to prosecute anyone for publication of secret documents.

Last month, a U.S. magistrate in Alexandria, Va., issued a secret subpoena ordering the Twitter online messaging service to turn over all information it has about five of its users, including Assange and Army Pfc. Bradley Manning, 23, the one-time Baghdad-based intelligence analyst accused of unauthorized downloading of the hundreds of thousands of classified U.S. government documents WikiLeaks is now publishing.

The subpoena was unsealed Wednesday after Twitter said it intended to notify each of the account holders that their records had been sought and became public on Friday, when one of those account holders told The Guardian newspaper in London. In addition to Assange's and Manning's, the targeted accounts include those of an Icelandic member of parliament and two computer programmers. WikiLeaks, however, argued in a "tweet" posted Saturday that the records of all 670,000 of its Twitter "followers" are subject to the subpoena because it demands information about outgoing messages from the WikiLeaks account.

Dalglish said her organization might reconsider its silence if the U.S. files a criminal case against Assange. That will depend, she said, on a determination of the case's potential threat to journalism.

Alan Bjerga, the president of the National Press Club, said his organization also might take a stand depending on what the Justice Department does.

"The National Press Club is always concerned about any government action that would harm the ability of journalists to do their work, and any action against Julian Assange that would impede journalists is one we would oppose," he said in an e-mail Saturday. "It is difficult at this time to comment on the specifics of a case the government has yet to make."

Until then, it's fallen largely to foreign-based journalism organizations to defend WikiLeaks.

In August, Paris-based Reporters without Borders wrote a letter condemning Assange for publishing the names of Afghan informants, saying it could endanger lives.

But it decided last month to provide a mirror site to WikiLeaks' website after the WikiLeaks site came under attack.

The change came after lengthy discussion — and because WikiLeaks has since been more cautious about redacting the documents it posts.

"We think WikiLeaks is doing a public service," said Clothilde Le Coz, who directs the group's Washington office.

The idea of America, heralded as a beacon of press freedom internationally, prosecuting someone for publishing secret documents would have a chilling effect throughout the world, the Australian Newspaper Editors group wrote in a letter to Australian Prime Minister Julia Gillard, whose government also is considering charges against Assange, who's an Australian citizen.

"Any such action would impact not only on WikiLeaks, but every media organization in the world that aims to inform the public about decisions made on their behalf," the organization said in its Dec. 15 letter. "It is the media's duty to responsibly report such material if it comes into their possession. To aggressively attempt to shut WikiLeaks down, to threaten to prosecute those who publish official leaks, and to pressure companies to cease doing commercial business with WikiLeaks, is a serious threat to democracy, which relies on a free and fearless press."

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