POLITICS APRIL 27, 2011
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
On Sunday night, as Michael Calderone has reported, two groups of news organizations began publishing details of secret inmate reports from Guantanamo Bay. Some, like The London Telegraph, had gotten the documents from WikiLeaks; others, like The New York Times, had not. Although the Times did not identify its independent source, WikiLeaks itself provided a clue in a tweet it issued on Sunday: “Domschiet, NYT, Guardian, attempted Gitmo spoiler against our 8 group coalition. We had intel on them and published first.”
Domscheit is Daniel Domscheit-Berg, Assange’s former Number Two at WikiLeaks and author of a compelling new tell-all memoir in which he describes how he became disillusioned with Assange’s paranoid megalomania, secretive resistance to transparency, political partisanship, and proclivity for concentrating power in his own hands—all the vices WikiLeaks was established to oppose. The “8 group coalition” is a group of news organizations, such as the Telegraph, with whom Assange is still on good terms and to whom he had promised the Guantánamo documents on the condition that the recipients respect an embargo imposed by Assange himself. The tweet suggests that Domscheit-Berg, or another disaffected former WikiLeaks staffer, may have given the documents to the Times, and that Assange suddenly lifted his own arbitrary embargo when it looked like he might be scooped by the former colleague who turned on him.
Regardless of who the source was, the difference between the Times’s thoughtful report and the WikiLeaks document dump illustrates the difference between a responsible news organization and a website devoted to the personal self-aggrandizement of its founder. The Times reporters carefully sifted through the raw intelligence reports and produced analytical pieces that clearly served the public interest. By contrast, in its race not to be scooped, under a melodramatic photo of Assange himself, WikiLeaks announced, “On Sunday April 24, 2011 WikiLeaks began publishing 779 secret files from the notorious Guantanamo Bay prison camp. The details for every detainee will be released daily over the coming month.”
Unlike the Times’s story, which was accompanied by seven carefully selected detainee assessments, WikiLeaks’s decision to publish all 779 of the raw assessments is a reckless act that can only harm the detainees themselves—making it harder for the Obama administration to release those it would like to free. As has long been known, the detainee assessments are a messy grab-bag of unsubstantiated fictions, hearsay about individual detainees, and tentative assessments of their genuine danger. The United States is in the middle of delicate negotiations with a variety of countries to accept some of the detainees for repatriation, and, now, every time a particular case comes up, the foreign governments the U.S. are asking to accept the detainees will find it politically harder to do so because of charges in the reports that may or may not be true. “Every one of the reports contains disparaging stuff about people,” says Benjamin Wittes of the Brookings Institution. “Some of it is true; some is true and old and not relevant any more; some is not true; and some is not true and old. None of that will matter when you’re a European foreign minister, thinking of taking a person, and the assessment published by WikiLeaks reveals what the Bush administration thought of him in 2004. I don’t know how many cases this will scuttle, but it won’t make things any easier.”
This isn’t the first time that WikiLeaks has threatened privacy by publishing unreliable or inaccurate information in the course of its massive document dumps: Assange provoked anger in Belgium after WikiLeaks published the police file of a Belgian politician later cleared of allegations of pedophilia. And, as Domscheit-Berg reports in his memoir, another WikiLeaks exposé mistakenly identified a German citizen as a tax evader after a source confused him with a Swiss citizen who shared the same last name.
In his book, Domscheit-Berg describes how he and another disaffected former WikiLeaks colleague have started a new organization, Open Leaks, designed to preserve the benefits of WikiLeaks while avoiding its costs. Open Leaks is not a publishing platform and therefore does not enable document dumps: Rather, it provides an encrypted drop-box that allows anonymous sources to deposit sensitive material and then to specify the institution—from The New York Times to an NGO—they think best-equipped to receive it. By separating the receipt of the documents from their publication, Open Leaks makes it more likely that documents will be responsibly edited and analyzed by organizations that have the time and inclination to make responsible judgments about what sort of publication is in the public interest. And it tries to avoid the centralization of power that made Assange more focused on his own global celebrity than on the consequences of his unedited data.
Of course, the refusal to edit shouldn’t be a crime, and the difficulty of distinguishing the Times from Assange as a legal matter shows why threats to prosecute the WikiLeaks founder under the Espionage Act are wrong-headed and dangerous. But, as an ethical matter, the very different treatment of the Guantánamo documents by the Times and WikiLeaks provides further evidence, if any more is needed, of the difference between responsible and irresponsible journalism.
Jeffrey Rosen is the legal affairs editor of The New Republic.
Follow @tnr on Twitter.
14 comments
TNR, the home of Marty Peretz, lecturing someone else about "irresponsible journalism." It figures. Not a word, of course, about the shameful crimes and deceit that the "irresponsible journalism" of Wikileaks has laid bare for the world to see. The legal affairs editor of a publication with the history of the New Republic might be expected to have something to say about our nation's sad record of denying the most basic human rights to hundreds of men snatched from their homes without the slightest semblance of the due process of law and locked away in a merciless prison for years on end. And he might be expected to say something about the Obama Administration's decision to keep many of these men locked up indefinitely, because the evidence against them is too thin to stand up even in a military tribunal and because releasing them would be politically awkward. But I guess Mr. Rosen has more important things to worry about.
- AlanVann
April 27, 2011 at 7:58am
This is outrageous. There are no threats to security in the disclosure of the raw material and it is far better that it be open to the public than that we have to depend on the NYT view. The NYT view is very valuable for its care, but the Times is not god and its take on the news is not written in heaven. We need to be able to test the Times version of reality too. This is why we have open trials in a democratic society. At this point, worrying about the "privacy" of the victims of our shocking human rights violations, many still imprisoned, is absurd. Is privacy the first thing we should be concerned about with regard to prisoners in a gulag, or should we be focused on the conditions and justice of their imprisonment? Would Rosen have the same concerns about disclosure of the raw files of prisoners of the Soviet Union? I hope not. But, if so, it would demonstrate only that he is morally obtuse. What is wrong with Jeffrey Rosen?
- roidubouloi
April 27, 2011 at 10:16am
AlanVann why do you subscribe to TNR "the home of Marty Peretz?"
- arnon
April 27, 2011 at 5:03pm
Good article, I am sympathetic to the view that wikileaks is a menace to democracy. Here is one example of what can go wrong: "This isn’t the first time that WikiLeaks has threatened privacy by publishing unreliable or inaccurate information in the course of its massive document dumps: Assange provoked anger in Belgium after WikiLeaks published the police file of a Belgian politician later cleared of allegations of pedophilia. And, as Domscheit-Berg reports in his memoir, another WikiLeaks exposé mistakenly identified a German citizen as a tax evader after a source confused him with a Swiss citizen who shared the same last name." There has to be some responsible mediating person between the raw data and its publication. Under the best of editorial eyes mistakes are made, but without any editing a lot of people can get hurt because some people think that any form of medation is non democratic.
- arnon
April 27, 2011 at 5:38pm
Any form of obligatory "mediation" would be a violation of the First Amendment. See cases on prior restraint. We have libel laws to deal with publication of false claims damaging to reputation. In a case with such enormous implications for public policy such as this one, the chances that anyone could be held liable are slim and none. It stands to reason that there are those who which to censor information that would be embarrassing to the government. So far, that is not permitted in the United States. It would be anti-democratic. Hence, we can hope that the law remains as it is.
- roidubouloi
April 27, 2011 at 6:39pm
“Any form of obligatory "mediation" would be a violation of the First Amendment.” What nonsense. Any legitimate news gathering organization used editors to determine if the story submitted to it is news worthy if the facts check out and if the story doesn’t violate the law or the legitimate rights of person or persons mention in the story. None of this violates any amendment to the constitution. Telling damaging lies about persons who would be inclined to go to court would damage the reputation of any news organization; as is publishing stolen information. Moreover, the fact that Wikileaks operations are more secret than those of any government agency doesn’t make it any more trustworthy than those agencies.
- arnon
April 27, 2011 at 6:54pm
"It stands to reason that there are those who which (sic) to censor information..." Yes, witchileaks deals in whitch's webs it calls "documents."
- arnon
April 27, 2011 at 6:58pm
Arnon, you and I get it.. AlanVann, the abuses surrounding the Guantanamo detensions are old ground thanks in large part to the diligence of traditional journalists and in no part to the likes of Assange. Have a peek at the TNR and the NYT archives for the last 10 years, in case you missed it. roidubouloi, did you read this article before posting? The point is that unedited documents can inflame the public, and destroy reputations, in ways that are DETRIMENTAL to justice. What politician would come out in favor of freeing an innocent detainee when his opponent will respond with campaign commercials reviving inaccurate, and costly-too-debunk allegations? Note to everyone - this article is not Guantanamo but about Assange's egocentrism and misguided ideological fervor. Wikileaks has just as much, if not more, potential to frustrate the efforts of well-intentioned and dedicated civil servants as it does to air the sort of secrets that occupy spy novels and conspiracy theories. Responsible journalists discriminate between the two, whereas Assange seemingly cannot or does not care.
- MICRM
April 27, 2011 at 6:58pm
Hey, if Judith (or Judy, as I believe she goes by now) isn't busy, maybe she can sanitize the Wikileaks dumps. Maybe Rosen can give her a call.
- rayward
April 27, 2011 at 8:54pm
No, you don't get it. In this particular case, the entire point of the disclosure is that people are in prison on the basis of all sorts of false, even ridiculous information. And seeing just how flawed the basis is is of the utmost public importance. The privacy rights of these prisoners are pretty trivial next to their rights not to be falsely imprisoned and tortured. Worrying about their privacy in such a context is, quite frankly, completely absurd. We can hold them indefinitely without trial on the basis of these documents but we cannot know what the documents say without violating the prisoners' right to privacy? Even to utter such a thing is to show how fatuous it is. Whether or not someone thinks a disclosure is "detrimental to justice," or whether Assange is a megalomaniac, or whether editing would be better journalistic ethics are all of no consequence at all to the right to make the disclosure. If there are libels, they are actionable, but in a case of this importance they would almost certainly have to be intentional or reckless, the Sullivan standard. And the claimants would have to be the prisoners themselves. The concern for their privacy rights compared to their right not to be falsely imprisoned for life is touching indeed. Arnon appears to believe that some sort of editorial intervention can be mandated as he scoffs at the notion that this would be a violation of the First Amendment. All this illustrates is that Arnon appears to know very little about First Amendment law. I highly recommend as a start New York Times v United States (the Pentagon Papers case) and New York Times v Sullivan (standard for libel against a public official) and subsequent cases involving public persons (even involuntary public persons) and the standard of care required in cases of public importance.
- roidubouloi
April 28, 2011 at 12:05am
roidubouli, you're still missing my point. Based on the info in Rosen's article, my problem with the Guantanamo disclosures is not about privacy rights (that's the issue of the Belgium case) but that this data dump needless puts innocent detainees at risk of never getting a fair hearing. I assume Assange is an enemy of Guantanamo, but his actions reduce the likelihood that the administration will successfully wind down the prison! Closing the prison is already politically hairy enough, given that so many ordinary American voters equate the words "Guantamee detainee" with "9-11 conspirator." (One of the current problems is simply finding an elected official who will allow a former detainee to be housed at a prison in his or her district.) You have to find Assange's callous indifference simply amazing. Not to mention the fact his motivation was so petty - to beat his media enemies to the punch via data dump, without being handicapped (as they were) by a sense of obligation to actually sift through the material! And to remind you, don't forget that the Guantanamo issue is just offered as an example of how indiscriminate leaks might backfire. And the articles is not really about whether Assange should have the legal right to do what he is doing. I don't think the First Amendment protects non-citizens living abroad, but I think most of us believe in the spirit of it, and on that token, he does have that right. And as the article points out, there's also no legalese that could easily distinguish Wikileaks from a newspaper.. My point is that Assange is irresponsible and the hero-worship is misguided. We currently have a pretty strong law designed to let responsible journalists and citizens get access to government papers, namely the Freedom of Information Act. Within the constraints of the law, I'd throw my support behind anything that would make Wikileak's job difficult and advantage his more responsible rivals (such as private companies refusing to carry donations to his funds, private ISPs refusing to host his web site, political soft persuasion to that end).
- MICRM
April 28, 2011 at 8:06am
At least now I get your point MICRM, but I don't agree with it. By what mechanism does the disclosure prevent a fair hearing? Because the political echelon will be so embarrassed by the disclosures that it will not put in place a fair process that it would have otherwise? I find that pretty implausible. Even more so, are we to understand that the political echelon is so embarrassed by the release of the raw material that it will continue to evade this responsibility but not so embarrassed by the NYT take on it to respond in the same way? That just doesn't make any sense to me. It is a fairly typical justification for not disclosing material that someone else will be angered by it. Thus, it is not the material itself that is said to be harmful, but the excessive reaction that we can expect from others. I think this sort of argument can make sense with respect to political speech, that the speaker bears some responsibility for the likely reaction of people who will hear and must take that into account. I don't think much of the argument when it comes to factual disclosures. The facts are the facts. Daylight is more important than containing the expected anger of those who have no right to be angry about it in the first place. As well, when it comes to government, I think that everything that can be legally disclosed without suffering liability (whether the liability actually is incurred or not) should be disclosed. There are certainly dangers to disclosure. Thomas Jefferson was explicit that free speech had risks. But I think the dangers from what the government hide are much, much worse. This matter is a case right on point. The real reason that there cannot be fair hearings appears to be that in too many cases the government does not have evidence that could possibly survive even minimal scrutiny and thus would be forced to release many prisoners and accept that they have been held wrongfully. It is very important that this be known, and the NYT take on it is not adequate to that task.
- roidubouloi
April 28, 2011 at 10:02am
roudubouloi, I think the difference between your view and mine is highlighted by your use of the term "facts." What you call facts, I would call "information," some of which is true, some false, and some simply made-up. For a journalist to dump information without even trying to look into its veracity is simply unethical, because false information is prejudicial and difficult to expunge. Maybe the managers of Wikileaks shouldn't be viewed as "journalists," but thanks to their founder's egotism, their competitiveness with traditional journalistic outlets, and their data dump "scoops," they've lost the right not to be scrutinized as such. Open Leaks sounds like their more responsible big brother. I don't want to dwell on Guantanamo because it's just an example, but to answer your point, the reason it was set up in the first place was because of lack of basic evidence that would stand up to due process. This has been well-known from the start (and a national embarrassment, with exposes galore in traditional outlets), so I very much doubt Wikileak's disclosure is useful in the way you think it is.
- MICRM
April 29, 2011 at 9:03am
Look, Guantanamo is almost sui generis, but the "facts" in this matter are not what is in all those documents, most of which could hardly be called factual in any ordinary sense. Rather it is the "fact" that these are the basis upon which people are being held. It is their very non-factness that is of extreme importance. Hence, worrying that the statements in those documents are for the most part untrue or grossly unsubstantiated stands everything on its head. That is precisely the point. I certainly agree that Wikileaks should not be understood as journalism. It isn't, and I don't know why anyone would even think such a thing. Part of why complaining about their journalist ethics is an oxymoron. They disclosure secrets. To the extent that they do so in violation of law, they should be held accountable and no doubt will be. But their role is not to edit, it is to disclose. In my view, everything about the workings of government that can be legally disclosed should be. The more daylight the better. What they do in the dark is almost invariably worse than the consequences of bringing light. In some of the early goings here at TNR about Guantanamo, I wrote that we have a clear and sensible path with regard to "unlawful combatants." Lawful combatants cannot be tried as criminals, except for war crimes. Alleged criminals cannot be held without due process. For unlawful combatants, I suggested that all we needed was a law that, because of their illegal status, we have the right to make the election whether to treat them as criminals or as combatant-prisoners of war. However, IF we elect to treat them as criminals, they must be accorded ordinary due process in all respects. IF, on the other hand, we elect to treat them as combatants and hence as prisoners of war who can be held, without trial, pending the cessation of hostilities, they must be accorded all the treatment required under the Geneva Conventions, and certainly a fair opportunity for the determination, and at intervals redetermination, not unlike those committed for insanity, whether they are even combatants. If we really do not have sufficient evidence that they are combatants and do not have the ability or will to try them as criminals, they should be released.
- roidubouloi
April 29, 2011 at 10:42am