THE BLOG
12/13/2010 10:53 am ET | Updated May 25, 2011

WikiLeaks and the Rule of Law in the United States

Legal scholars have explained why the U.S. government has not violated the First Amendment, journalists have dismantled claims that Assange is a press hero, and national security experts have debunked arguments that the leaked cables are innocuous. Yet somehow WikiLeaks defenders continue to support this misguided project, resorting to arguments as dangerous to civil liberties and democratic tradition as the acts they have wrongly accused government agencies of committing.

Maladroit legal arguments swirling on email lists and percolating in the blogosphere have persistently invoked the First Amendment. However, the First Amendment is not currently a factor -- nor is the Citizens United ruling. Even those internet freedom advocates who support WikiLeaks concede as much. Were the US to try to prosecute Assange, the case would center on the First Amendment. The same would be true if Amazon had been forced to discontinue its support of WikiLeaks. However, the independent decisions of Amazon and PayPal to deny WikiLeaks use of their services do not constitute any violation of Constitutional rights.

Assange has not been denied free speech. He has not been silenced or persecuted by government actors but rather arrested on pre-existing rape allegations, an arrest obligated by the notoriety he attracted to himself. It would be unacceptable and unjust for Sweden not to pursue allegations of rape, sexual molestation and unlawful coercion against an individual whose location is publicized internationally. Far from being deprived of his rights, he is being investigated based on the possibility that he denied two women of their rights. The only breaches of law so far are those committed by Assange, who violated the spirit and likely the letter of U.S. law, and those WikiLeaks activists who have launched attacks on Amazon and PayPal.

Some supporters attempt to cast Assange as a hero bringing vital information about US involvement in the Middle East to light, while others defend his actions as not having exposed anything of particular note or value. Margaret Carlson rebuts claims that Assange belongs in the pantheon of press heroes like Bob Woodward and Daniel Ellsberg eloquently: "That justification fails for a number of reasons, including how thoughtlessly indiscriminate Assange's document dump was, how little useful light it shed on Iraq and Afghanistan beyond the awful truth we already know, and Assange's indifference to collateral damage."

The claim that because Assange's actions did not expose significant new information they did not threaten national security also fails. Some supporters are attempting to take this line of argument to skirt the Espionage Act, which states the receipt, retention, and publication of classified material is illegal when the perpetrator "had reason to believe could be used to the injury of the United States." They have attempted to redirect debate to the issue of what constitutes a threat to national security.

WikiLeaks has indisputably negatively affected US national security and foreign policy. Professor R. Nicholas Burns of Harvard told Time, "He has done great harm to our diplomacy, because it strikes at the heart of what diplomacy is: The building of trust between people and between governments." The publication of these cables represents a breach of security. Their accessibility implicitly invokes a series of actions that did threaten US national security -- accessing, stealing, and publishing classified material pertaining to defense and diplomacy.

The publication of the leaked cables also has a direct effect in jeopardizing US national security and the lives of American soldiers. For example, it has become public knowledge that American soldiers are embedded in Pakistani military units. Although this may not be new information in Pakistan or Afghanistan, radical Islamists may nonetheless attempt to use the cables to support their claim Americans are trying to interfere in and take over the Middle East to lure new recruits and incite backlash against American presence in Pakistan and Afghanistan.

The most dangerous argument, however, is that the Obama administration should not oppose WikiLeaks or examine options for prosecuting Assange because the Espionage Act is flawed. The administration is also upholding the Don't Ask Don't Tell (DADT) policy despite Obama's stated opposition to the policy, and the Department of Justice defended the Defense of Marriage Act (DOMA) that President Obama supports repealing. As Abraham Lincoln said in 1838, "although bad laws... should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed."

It would be of significantly greater concern for democracy in America if the Obama administration or the legislature were not investigating major breaches of national security and enforcing U.S. law. From time to time, administrations do selectively refuse to enforce what they consider to be unjust laws, but these are exceptional circumstances. If an administration can ignore judicial holdings and refuse to uphold the rule of law -- by refusing to enforce otherwise valid laws that it disagrees with -- then it is endorsing lawlessness and condemning the rule of law. It is the duty of government to enforce existing laws; it is dissenting citizens' responsibility to push for the reform or repeal of law through the legislature.