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Peter Scheer

Peter Scheer

Posted: July 29, 2010 06:50 PM

WikiLeaks Didn't Just Happen -- It Exists Because Journalists Lost Control Over the Information They Obtain

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The New York Times' front-page stories on the war in Afghanistan -- based on a massive leak of classified US military cables and other documents -- are not likely to change the course of the war. But they represent a sea change in the way journalists report on national security.

The records for the Times' articles, which inevitably invite comparison to the "Pentagon Papers" of an earlier generation and an earlier war, were supplied to the Times not by a government source, but by Wikileaks.org, a shadowy and stateless website specializing in publishing sensitive records leaked anonymously from the files of governments and corporations.

Why Wikileaks?

If necessity is the mother of invention, the gestation for Wikileaks began in Washington DC on June 17, 2005. That is the day the Supreme Court declined to hear appeals from court orders compelling journalists from Time Magazine and the New York Times to reveal the identity of a source-Lewis "Scooter" Libby, we later learned -- whom the reporters had promised confidentiality.

The Supreme Court's inaction laid bare the vulnerability of American journalists to the coercive power of federal judges who are determined to extract information for a grand jury or trial. Most journalists can't or won't go to jail to protect a source. And those who would do so may find that their employer, typically a public corporation with an obligation to shareholders, doesn't share their commitment to civil disobedience. Even without the intervention of courts, federal agencies conducting national security investigations can gain access to reporters' phone records, often without the reporters' ever knowing about it.

Wikileaks, in short, is a response to journalists' loss of control over their information.

Using technology both to erase leakers' fingerprints and to place Wikileaks and its files effectively beyond the reach of any one country's judicial process, Wikileaks offers a degree of anonymity and security that, while imperfect, exceeds the capability of US media companies.

These advantages explain the unusual provenance of the Afghanistan stories. Although the source could have leaked the classified materials to a Times reporter directly, the reporter would have insisted on communicating with the source. For the Times, knowing the identity of a source is important for assessing the authenticity of leaked information and to determine a source's motives for leaking. From the perspective of the source for the "Afghanistan Papers," however, communicating with the Times would create an undue risk of exposure. The source therefore chose to give the records to Wikileaks; Wikileaks gave them to the Times.

The upshot is that the Times ran its stories apparently without knowing the identity of its source. That may be a first for a major Times article on national security. It won't be the last time this happens.

Wikileaks, for its part, has been shrewd in its dealings with news organizations to disseminate the "Afghanistan Papers." It could have published the documents initially on its website, as it has in the case of past leaks, and then invited the press to write about them. But making the records universally available would diminish their value in the eyes of the Times and other news organizations. No reporter wants to write the same story that 100 other reporters are writing. Reporters want special access.

Wikileaks provided the files to three news organizations: The Times, Der Spiegel in Germany and the Guardian in Britain. This special access gave each paper sufficient incentive to invest heavily in the story -- assigning top reporters and editors to the daunting task of authenticating, analyzing, and making sense of thousands of cables. Also, the rivalry among the three organizations assured that all would run the stories prominently and that the Times in particular would be under competitive pressure to resist efforts by the Obama administration to persuade it to cancel or delay the articles.

This unusual collaboration worked. The stories in the Times, the Guardian and Der Spiegel shed new light on the role of Pakistani intelligence, the extent of civilian casualties, Taliban military capabilities and other matters. Although Wikileaks has been sharply criticized for posting raw files containing the names of some Afghani informants, the news organizations did not make that mistake.

As long as serious news organizations are unable to protect confidential sources and information, they will need Wikileaks -- just as Wikileaks needs them.

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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). In early 2008, FAC helped organize, and participated in, a successful legal challenge to a federal court injunction against wikileaks. Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F. Supp. 2d 980 (ND Cal 2008).

 

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