On March 10th, 2011, Julian Assange received an email from the filmmaker Alex Gibney. The WikiLeaks founder (he prefers "editor in chief") had been living in asylum in a manor outside London, to evade deportation to Sweden, where he is wanted for questioning about possible sexual crimes. From there, he fears, he could be extradited to the US, where someday soon he may be wanted for espionage. Gibney wanted to interview him for his new film about WikiLeaks.
"[W]hile you know that many docs will be made on this subject," he wrote, according to WikiLeaks, "I have a sufficient global reputation (oscar, oscar noms, worldwide fans) and such a substantial budget for production, worldwide distribution and promotion that my documentary will reach an audience that will dwarf the reach of all the other documentaries combined."
Gibney was probably not boasting. But like much else at the time, Assange was suspicious about the film Gibney was making. He told Gibney he would only participate under a few conditions, one being that he could learn what other interviewees (specifically US government officials, who may have been involved in his prosecution) were saying about him. Gibney rejected that idea. That was on top of another demand. "After meetings and emails," Gibney says in the film, "I was finally summoned to the Norfolk mansion for a six hour negotiation. Julian wanted money. He said the market rate for an interview with him was one million dollars."
Well, not exactly. A paranoid Assange may have, ironically, asked another journalist to inform on a source (there are a lot of ironies here), but he did not exactly request one million dollars for an interview. In a blistering, line-by-line rebuttal to the film issued by WikiLeaks last week, in the form of a "leaked" transcript, an anonymous author aims to set the record straight on this and other matters.
WikiLeaks had previously received an offer of £800,000 for its cooperation in a British documentary project. WikiLeaks rejected the offer for security reasons. In the film and in interviews, Alex Gibney distorts this conversation by attempting to portray Julian Assange as greedy... While Alex Gibney is happy to allow the false imputation Julian Assange demanded $1 million for an interview to remain in his film, he is careful not to allow the same 'mistake' to appear in the film's pre-publicity material.
It isn't hard to imagine the embattled WikiLeaks founder, typing away furiously in the Ecuadorian embassy in London, where he is now more than 900 days into his asylum. Gibney himself clarified his statement about Assange's demand for money in a recent correction in The New York Times, though, he would later clarify the correction, writing that it "should not be read to mean that Julian did not want to be paid a lot of money for an interview. He did. I’m sure we might have made a deal at, say $100,000. But I don’t pay for interviews."
Assange's pecuniary needs, like the sex allegations that fuel them, often look like a big distraction from the greater ideas behind WikiLeaks: what are the limits of transparency and a free press, and what did we gain from having all those cables? The problem is that, in Gibney's wide-ranging film, We Steal Secrets, it's hard to tell one story without touching upon the stupid, creepy other one.
Though the documentary, which was released last week, contains no original interviews with Assange or Manning (he is unavailable, in Fort Leavenworth), it is the most comprehensive film history yet about a constellation of topics that don't easily lend themselves to the screen. (A few more films are coming, though none are likely to match Gibney's budget of $2 million.) In it, Gibney shows, in part, how Assange's sexual improprieties and the legal conundrums facing Bradley Manning and WikiLeaks have become regrettably, fatally, intertwined. While Gibney glosses over details of the Swedish case (allegations of evidence mishandling, and an unusual kind of aggression by the Swedish authorities), he documents that the rape allegations aren't simply a political smear. As dangerous as Assange may be to the powers that be, he's also come to be seen as a liability to WikiLeaks.
But in a statement accompanying the film transcript, WikiLeaks makes an argument that has become common among its fervent supporters (see this list of talking points, for instance, at Justice4Assange): that lack of sympathy for Assange is anti-WikiLeaks, and thus represents a threat against press freedom. "[Gibney's] film buys into the current US government position that journalists and publishers can be prosecuted as co-conspirators alongside their alleged sources," writes WikiLeaks. "This is a dangerous proposition for all journalists and media organizations — not just WikiLeaks."
"This is... false, and is not based on anything in the film," Gibney wrote to Motherboard. "However, it is a familiar tactic used by Mr Assange. He often attempts to conflate criticism of him with attacks on high-minded principles espoused by his organization. Let’s be clear: criticism of Mr. Assange is not equivalent to criticism of free speech or the need for more government transparency."
Assange needs to answer questions about the sex allegations; there is no DNA evidence, but neither Assange nor either of the two women dispute that they respectively had sexual encounters. Still, Gibney wrote to Motherboard, "Whatever issues the film might take with Julian Assange, the filmmakers stand behind WikiLeaks in its role as a publisher with all of the protections that should be associated with that role."
It's not hard to see where Assange gets his paranoia. People in power don't tend to like him much. He has spent six years publishing embarassing truths that can never be taken off the Internet. When the Church of Scientology threatened legal action against WikiLeaks in 2008 (Assange had published the church's internal documents), Assange wrote that his organization would "not comply with legally abusive requests from Scientology any more than WikiLeaks has complied with similar demands from Swiss banks, Russian offshore stem-cell centers, former African kleptocrats, or the Pentagon.” After the Afghan War Logs emerged in 2010, the first 91,000 cables in a cache of 251,287, his cash flows were embargoed. Joe Biden called him a "high-tech terrorist," and Sarah Palin compared him to the Taliban. Thomas Flanagan, a former advisor to Canadian Prime Minister Stephen Harper, suggested Obama get Assange with a drone.
It's okay not to like reporters and publishers; it's another thing to go after them. In Gibney's film, Assange is an idealistic if zealous hacker who liked "crushing bastards" by spilling their secrets and likely behaved badly in Sweden. But his film doesn't, in fact, demonstrate that Assange solicited Manning for secrets, nor does he make that alleged "dangerous proposition" that journalists are spies. To the contrary, We Steal Secrets argues that even if technology changes the way people spill secrets—and even if humans are terribly flawed—the act of whistle-blowing and the people who do it need to be protected, along with the people who publish their secrets, be they journalists or websites or something else entirely. In spite of Assange's alleged hijinks, Gibney argues that a free press also includes WikiLeaks.
It's an important argument. Last year, the Obama Administration accused Assange of trying to distract from his Swedish case by making "wild allegations" about Washington's intentions. But the US government has been pursuing Assange aggressively, not as a journalist but as a spy, and may have already issued a secret sealed indictment, possibly alleging that Assange, like Manning, also conspired to "aid the enemy." (The indictment was revealed in a cache of emails belonging to the security firm Stratfor; 28-year-old Jeremy Hammond, who pled guilty to leaking these emails yesterday in New York, said, "I did this because I believe people have a right to know what governments and corporations are doing behind closed doors. I did what I believe is right.”)
Even for non-WikiLeaks nerds, the annotations are an interesting addition to Assange's mythos, a meta dissection of the spilling of secrets—as valuable as the film itself.
As a "publisher," as Gibney refers to him, Assange's hacker profile might not help his case—the U.S. government has made clear how it feels about hackers. But being a member of the mainstream media apparently doesn't afford much more protection. Earlier this month, the Associated Press learned that the government had subpoenaed the phone records of reporters that it may have suspected of dealing in "state secrets," when they published a 2012 article about a terror plot foiled by the CIA in Yemen.
But that was prelude to another revelation a week later: that in 2010, the Dept. of Justice had subpoened emails of Fox News' Washington bureau chief, James Rosen, on suspicion that he had "conspired" to acquire secret information about North Korea from a source at the State Department. When an anonymous administration official explained the government's reasoning about Rosen last week, he or she echoed accusations the government might like to attach to Assange:
"The reporter in question actively asked people with access to classified information to break the law by providing him classified information he could publish. . . . In other words, he wasn't someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so."
If it sounds like a jarring precedent, it is. In the U.S., leaking secret information is illegal but not publishing it. Using the Espionage Act to go after not just a government leaker but a publisher is a tactic that those with long enough memories have described as Nixonian. Given how fuzzy the line is here—what is reporting if not sometimes "actively asking" a source for a secret?—the investigation has already chilled newsrooms, reports the Times. (Ironically, the news arrived just as the New Yorker became the latest investigative outlet to launch its own version of WikiLeaks, a piece of software designed by the late Aaron Swartz, who was himself the target of a broad and aggressive federal investigation.)
A pledge by Obama to review Justice Department procedures for leak investigations and to revive a national "shield law" for the press likely won't calm concerns among journalists and their potential sources. Since taking office, President Obama has overseen the prosecution of six government whistleblowers under the Espionage Act, which is twice than all previous presidents combined since 1917, when the law was passed. This is despite the fact that the president came to office under the banner of an open government, and in 2011, received an award for his support of transparency (albeit in a closed, undisclosed meeting at the White House).
Assange may not have earned much sympathy from the mainstream press, including his former partners at the Times. But his tribulations highlight a common interest between the white-haired hacker's insurgent organization and more established institutions, as Glenn Greenwald wrote last week.
That's what always made the establishment media's silence (or even support) in the face of the criminal investigation of WikiLeaks so remarkable: it was so obvious from the start that the theories used there could easily be exploited to criminalize the acts of mainstream journalists. That's why James Goodale, the New York Times' general counsel during the paper's historic press freedom fights with the Nixon administration, has been warning that "the biggest challenge to the press today is the threatened prosecution of WikiLeaks, and it's absolutely frightening."
But, given the questions Gibney raises about what he sees as reckless behavior by the WikiLeaks founder, both in Sweden and in his handling of the cables, it's no surprise that a sizable portion of the transcript is dedicated not to musing on press freedom but to defending Assange. Unfortuantely, the transcript also inexplicably omits Bradley Manning's voice, which appears in some of the film's most effective chunks: thirty minutes of silent on-screen chats between Manning and the hacker Adrian Lamo, who reported on Manning to the FBI. (WikiLeaks did not respond to two requests to explain why the "alleged chats" were omitted from the transcript.)
Manning's case is separate but central to the story of WikiLeaks. He's been held in conditions the the UN special rapporteur on torture called "cruel and inhuman," faces 52 years in prison. He has already pleaded guilty to ten charges against him, and when his trial begins next month, he'll face more. A large portion of the trial will be secret, prosecutors say, to protect specific details about damage done by the leaks, including evidence that Osama bin Laden had the cables on his home computer. (People at the Pentagon have said the cable dump, which included no "top secret" documents, caused minimal damage, and was more likely embarrassing to the U.S. and its allies).
Manning's defense is likely to focus on his role as a whistleblower, exposing possible crimes by his government and others—revelations that, among other things, exposed Iceland's banking crisis, demonstrated that diplomats were spying, and detailed how Pakistan's government secretly accepted U.S. drone strikes. The corruption the documents exposed in the Middle East, many argue, helped incite the Arab Spring. All 251,287 cables remain classified.
Manning is not the focus of WikiLeaks' rebuttal. Dripping with fervor and paranoia, the document instead rehearses many of the tribulations, controversies and arguments that have animated the group's saga and its flamboyant founder's personal struggle. Even for non-WikiLeaks nerds, the annotations provide an interesting meta glimpse at the spilling of secrets, the future of press freedom, and the ways that organizations of all kinds can founder on fear. Its emphasis on defending Assange testifies to the tension that Gibney finds at the heart of WikiLeaks and its supporters, between the mission of protecting whistle-blowers, and the drive to protect its nervous leader. That makes it practically as valuable a "leak" of WikiLeaks as the film itself.
A number of rebuttals in WikiLeaks' response offer a glimpse into the fear and recriminations that have riven the organization since the release of the "Collateral Murder" video in 2010. In three instances, WikiLeaks describes sources as "lying" to Gibney. One comment, about the data journalist James Ball, a former volunteer for WikiLeaks, goes into detail about how Assange tested Ball's loyalty after documents from a WikiLeaks email account appeared in the Guardian.
a second, special non-disclosure agreement was devised for Ball, to test his reaction. After being asked to sign it at WikiLeaks' Norfolk office, Ball became anxious and asked to postpone signing it while he considered it. He then left for London.
A separate note claims that another source of Gibney's, Daniel Domscheit-Berg, was not present for the release of the first batch of cables, the 91,000 Afghan War Logs, and so his testimony is unreliable. Reads one note: "Due to his increasingly erratic behaviour, in late February 2010 WikiLeaks issued a policy directive that Domscheit-Berg not be permitted contact with source material."
The annotated manuscript levels a range of accusations at Gibney too: a misrepresentation of Assange's hacking philosophy, his attempt to "fish" for secrets, and his efforts to raise money; an over-reliance on WikiLeaks adversaries like Domscheit-Berg; and selective editing and misquotation, for instance, about how Assange handled the redaction of names in the cables, or the meaning of his screenname, Mendax.
WikiLeaks also alleges Gibney gets basic facts wrong. For instance, WikiLeaks has servers in France, Iceland, Belgium, and the US, not just in Sweden; and the "Collateral Murder" video, showing a helicopter attack in Iraq, was never classified, contrary to clips used in the film, says WikiLeaks.
As a journalist who has produced documentaries (and even once prepared for a separate, still-born documentary about Wikileaks and transparency), I can sympathize with the challenge of making a film as sweeping as We Steal Secrets: it's simply impossible to include every detail, nuance and dimension of a story. And yet WikiLeaks' rebuttal highlights the ways that even subtle omissions or implications can nudge a piece of reporting into a slant.
Firedoglake’s Kevin Gosztola, who has extensively covered WikiLeaks and Manning’s trial, pointed at, among other things, Gibney's omission of allegations of misconduct by Swedish police, and glossing over the lack of DNA evidence against Assange, even as Gibney shows a broken condom on screen, which is implied to be a kind of smoking gun. Gosztola was also troubled, rightfully, by the inclusion of a theory about Assange's motives for making "women pregnant against their will." Iain Overton, former executive editor of The Bureau of Investigative Journalism, attempts to pathologize Assange's dislike of condoms by musing that "there may be some sort of primary impulse in him to want to reproduce, to want to have some sort of bedrock in his life. You know, this is the ultimate digital man and actually you can’t just live in a digital world.” Gosztola wrote that the film seems to be "the product of a director who has an axe to grind.”
Gibney responded to Gosztola in a letter, and in his email to Motherboard, he rejected the idea that his film was misleading. "Our film has been rigorously fact-checked and we stand by it. This is a film meant to be seen as a film, not read via and incomplete and inaccurate transcript." He noted that the transcript "includes material that is no longer in the film and, in some places, inserts a clumsy paraphrase for the actual words (not a very good sign of the "scientific journalism" Mr. Assange pretends to practice)." Assange, who is often cool in television interviews but intense in his online communications, may be the person who fired back in a tweet on Friday.
"While the film may raise legitimate questions about the personal behavior of Mr. Assange," Gibney wrote, "it takes great care to engage the importance of the larger issues involved in the story, notably what should and what should not be secret, and takes issue with the way that the Obama Administration’s may be using unreasonable attacks on leaks – as seen through the brutal punishment of Bradley Manning – to undermine the role of a free press."
"Liars" from left to right: Daniel Domscheit-Berg, Nick Davies, and James Ball take on WikiLeaks in We Steal Secrets. Bottom, Alex Gibney. Photo by Pam Hule / Flickr
WikiLeaks' rebuttals are motivated in no small part by the charges Assange could face over publishing Manning's cables. But while Assange has frantically sought to distance WikiLeaks and himself from Manning, in the name of protecting his source and himself, he has also been one of Manning's most ruthless defenders. The rebuttal to Gibney's film offers another opportunity. The film, argues WikiLeaks, trivilaizes Manning's motives for whistleblowing, painting him as an unstable character, and his acts "as a failure of character rather than a triumph of conscience.”
Gibney disagrees. "That is not true. Many reviewers have noted that Mr. Manning emerges as the hero of the film. But a reader of the 'leaked' transcript may not come to this view because WL either deleted or omitted all of Mr. Manning’s words."
In We Steal Secrets, Manning looks like a troubled Army private, a misfit with a hacker's curiosity, living with a gender identity disorder in a "Don't Ask, Don't Tell" Army. (Frontline also described Manning's personal troubles in a documentary last year.) But Gibney's version of Manning, like his rendition of Assange, isn't one-dimensional. He describes Manning's serious moral and political concerns about America's role in a newly "democratized" Iraq. One incident stood out for him in particular, according to the chat logs.
(02:29:04 PM) Manning: i guess im too idealistic
(02:31:02 PM) Manning: i think the thing that got me the most… that made me rethink the world more than anything
(02:35:46 PM) Manning: was watching 15 detainees taken by the Iraqi Federal Police… for printing “anti-Iraqi literature”… the iraqi federal police wouldn’t cooperate with US forces, so i was instructed to investigate the matter, find out who the “bad guys” were, and how significant this was for the FPs… it turned out, they had printed a scholarly critique against PM Maliki… i had an interpreter read it for me… and when i found out that it was a benign political critique titled “Where did the money go?” and following the corruption trail within the PM’s cabinet… i immediately took that information and *ran* to the officer to explain what was going on… he didn’t want to hear any of it… he told me to shut up and explain how we could assist the FPs in finding *MORE* detainees…
(02:35:46 PM) Lamo : I’m not here right now
(02:36:27 PM) Manning: everything started slipping after that… i saw things differently
(02:37:37 PM) Manning: i had always questioned the things worked, and investigated to find the truth… but that was a point where i was a *part* of something… i was actively involved in something that i was completely against…
This story of the Iraqi arrests features in the film's quotations of the chat logs, but one annotation erroneously complains that Gibney's portrayal of Manning skips this scene. It's possible, scoffed Gibney, that whomever transcribed the film did so from a poor quality bootleg recording. "However they happened, they are bad mistakes and reflect poorly on WikiLeaks' claims to accuracy."
The biggest debate over accuracy in the WikiLeaks transcript centers on the sexual allegations against Assange—for not wearing a condom during sex with two separate women in Sweden. In the film, as in real life, it feels like a sad distraction. Of course Assange's sexual escapades have nothing to do with WikiLeaks. And yet, the dogged, international quest to extradite him to Sweden probably does; from there, he and his lawyers fear, he'd be extradited to the US to face possible trial over conspiracy to commit espionage.
That is to say that while the charges against Assange are legitimate, they do not exist in a vacuum; they arose in a climate that saw WikiLeaks as dangerous to the world's most powerful and secretive nation. The whiff of politics is everywhere. "Only two days after the release of the first batch of State Department cables," Gibney says in the film, "Interpol issued a demand for Assange's arrest for his failure to return to Sweden to answer questions about sex charges."
Despite rumors of a CIA plot, Gibney's evidence suggests that Assange was the one who set himself up. And yet, WikiLeaks points out, there are no formal "charges" against Assange. While Sweden and Interpol have issued arrest warrants for Assange, he is only wanted for questioning. That's because in Sweden, the decision to charge someone with a crime comes later in the process of a criminal investigation than it does in most other places. The case (Assange is suspected of several counts of rape, sexual molestation, and illegal use of force) remains at the stage of "preliminary investigation." That Assange is wanted for arrest even though he has not been formally charged is "one of the principle abuses in the case. The audience can't possibly understand the abusive nature of the situation after having been misled by Gibney in this manner."
Photo by Takver / Flickr
Watching the pivot of We Steal Secrets, where Assange's mad saga becomes so entangled with WikiLeaks, it's hard not to be frustrated at the way the larger issues have become so muddled. One of his Swedish accusers, identified only as Anna in the film, was astonished to see the public support for Assange at the start of his extradition saga. "I saw these signs 'Free Bradley Manning' and 'Free Julian Assange,'" she tells Gibney's camera, "and I think it's ridiculous! These two cases have nothing to do with each other."
But, writes WikiLeaks, "The Bradley Manning, Julian Assange and WikiLeaks cases have everything to do with each other. The parallel investigation by the Department of Justice into Assange and WikiLeaks is mentioned explicitly in the Manning proceedings at numerous points. Assange and WikiLeaks are current litigants in the Manning case. In relation to the Swedish matter the intense politicization of the process is clear. Although Assange has still not been charged, the UK admits to spending more than $4.3 million on surveilling Assange at the embassy in the first 7 months alone."
The annotations, like the film's portrayal of Assange, are tinged with paranoia—understandable given the various public and secret investigations, criticisms, and even death threats Assange has received over the past three years. Currently, according to documents obtained last year, the United States considers Assange an "enemy." Assange’s American attorney, Michael Ratner, explained what this meant to the Observer last year: "An enemy is dealt with under the laws of war, which could include killing, capturing, detaining without trial, etc.”
WikiLeaks emphasizes this. "The surveillance of WikiLeaks and Julian Assange is well documented and is a serious matter. For instance, as far back as 2008 US military intelligence prepared a classified report on how methods to destroy WikiLeaks' "center of gravity". Two of Assange's Kenyan associates, Oscar Kamau Kingara and John Paul Oulo, were assassinated on March 6, 2009 in a matter connected to WikiLeaks' publications about extrajudicial assassinations. As a teenager Assange had his phone tapped and had been physically surveilled by Australian Federal Police in Operation Weather."
Assange's paranoia is evident in Gibney's candid stock footage (captured by the filmmaker Mark Davis), but it also appears to document the peripatetic hacker acting recklessly, specifically around the matter of how to redact the names of innocent civilians from the Afghan War Logs. (Ultimately, after publishing edited versions of the cables with a number of major newspapers, Assange decided to release all the cables, uncensored.) At one point in the film, the Guardian journalist Nick Davies alleges that Assange didn't care if the leaks resulted in a "loss of life." And he describes how Assange saw these potential victims as "collaborators" with the United States.
This particularly related to ordinary Afghan civilians who in one operation or incident or another had given information to coalition forces and that was recorded in there in such a way that those civilians were identifiable. I raised this with Julian and he said if an Afghan civilian helps coalition forces he deserves to die. He went on to explain that they have the status of a collaborator or informant....
Assange has denied he ever said this. The statement, attributed to him by Davies' colleague David Leigh, from a dinner in London in 2010, led Assange to lodge a formal complaint to the Leveson Inquiry in London last year. In it, he questioned the veracity of Leigh and Davies’ evidence, citing a signed statement by a Der Spiegel journalist who was present at the dinner.
If his hacker past installed a recklessness (and a paranoia) in Assange, We Steal Secrets argues, celebrity has fueled illusions of grandeur. It isn't hard to see why Assange has conflated his dumb bedroom saga with the struggle of a website that has become a symbole of global information freedom. When your mission is to open secrets and uncover conspiracies, you start to see them everywhere.
But by Gibney's account, Assange is the kind of leaker who does not want to be transparent about himself. Multiple times in the film, Assange is seen deflecting questions about his legal case and in one instance, walking out of an interview altogether. Narcissism doesn't help. James Ball, a Guardian journalist who worked with WikiLeaks once, attributes it to "noble cause corruption": "essentially, you do things which if anyone else did you would recognize aren't ok, aren't right, but because you know you're a good guy, it's different for you."
Assange at Occupy LSX, 2011; xpgomes8 / Flickr
Similar claims have been lobbed at other other gurus of decentralized, networked intelligence: Jimmy Wales. Mark Zuckerberg. Steve Jobs. The hackers and someday-politicians of Silicon Valley. "Who's watching the watchers?" Gibney asked in our interview with him last week. Though Assange, Gibney said, once balanced his "self-regarding narcissism" with "a healthy sense of idealism, and a self-deprecating humor," now "he’s something that’s closer to a human megaphone."
Gibney's film doesn't consider how Assange's personality could be an asset—perhaps all the better to court potential leakers. Assange's celebrity profile may also help to draw attention in a way that the mainstream media typically can't. As Assange critic (and my former colleague) Michael Moynihan ruefully noted recently, much ado was made of WikiLeaks' "Kissinger Cable" dump—a searchable archive of diplomatic cables that had already been made public by the US in 2006 (Assange and his team made it more accessible)—while little attention was paid to another new leak that week: The International Consortium of Investigative Journalists (ICIJ) published 2.5 million documents detailing the hidden dealings of 120,000 offshore companies and nearly 130,000 individuals in more than 170 countries. (Officials from a number of them have already launched campaigns against tax evasion.)
The "Kissinger cables" dump—in a press conference, Assange called it "the single most significant geopolitical publication that has ever existed”—also highlighted, argued Moynihan, another dismal aspect of the WikiLeaks saga: that without Manning, Assange and his organization may have grown stale. "The organization has been beset by infighting, legal problems, and a lack of new material," he wrote. "Once said to have been rewriting the rules of journalism, Assange has become an outlaw librarian."
Forget about who Assange is, and consider what he is, and what we expect of him as a "publisher" of secrets. The questions Gibney raises are implicit: Can whistleblowers like Manning trust editors like Julian Assange? Which "journalists" can be trusted to make the right decisions about what exactly should be secret and what shouldn't be? Is Julian Assange any better or worse a steward of secrets than the New York Times—or the CIA, for that matter? What kind of protections can a Bradley Manning expect even from the government or the mainstream press?
One peculiar figure in the quest to answer these questions in the age of the Internet has been Senator Charles Schumer, Democrat of New York. When in 2007, the House of Representatives passed a federal shield law for journalists, Schumer tried to expand the definition in the Senate version: a journalist wasn't just someone earning "a substantial portion of [their] livelihood" from journalism, but any person who has the intent to disseminate information to the public, he insisted. He may as well have been referring directly to Julian Assange.
Secretary of Defense Leon E. Panetta and Senator Charles E. Schumer. Photo By Glenn Fawcett / DOD
But in 2010, after WikiLeaks released the Afghan War Logs, his tune changed. Schumer announced that he would amend the version of the law then in front of the Senate, the Free Flow of Information Act, to exclude WikiLeaks. He argued that Assange's organization does not fulfill the "definition of a journalist," the kind that engages in "legitimate newsgathering activities."
Amidst the fury over WikiLeaks, Schumer's bill died in committee. But last Wednesday morning, as the White House was feeling the heat over Justice Dept.'s investigations of reporters at Fox News and the Associated Press, President Obama’s Senate liaison called Schumer's office, asking him to reintroduce the bill, as part of a bipartisan "gang of eight."
It would use a kind of "balancing test" to resolve questions over press freedom. “This kind of law would balance national security needs against the public’s right to the free flow of information," Schumer said last week, making reference to the AP incident. "At minimum, our bill would have ensured a fairer, more deliberate process in this case.”
It isn't clear that the bill, had it been in force, would have even protected the AP this time. For instance, the existing proposal wouldn't provide blanket protection for a journalist from having to reveal confidential sources, though it would require the government to convince a federal judge that national security is at stake. It would also require the government to notify news organizations in real time if they are being surveilled—except in some cases, again, where national security is in question.
It's also unclear how WikiLeaks will fit into a new version, if at all. When it comes to publishing leaks, how do you differentiate between what WikiLeaks does and what the New York Times does? Even the former Times editor Bill Keller, whose paper relied heavily on the cables before distancing itself from Assange, said that if Assange is "a journalist, he's not the kind of journalist that I am," nor is WikiLeaks "my kind of news organization."
If Manning's leak "provided comfort to the enemy, then so does every news story about cuts in defense spending, or opposition to drone strikes, or setbacks in Afghanistan." —Bill Keller, former New York Times managing editor
But as the cases of Fox News and the AP highlight, even Keller's kind of news organizations must be on alert now. More recently, Keller has pledged to defend WikiLeaks—"as a matter of law I believe WikiLeaks and The New York Times are equally protected by the First Amendment," he said, and "if WikiLeaks is under attack, journalism is under attack." Keller even argued that the organization's rhizomic approach to the cables may have been superior to the way the Times would have handled the secret dump (Manning says he went to the Times and the Post before contacting WikiLeaks). If the Times had had the exclusive, Keller imagined in March that
[it] would have been a coup for The Times, but something would have been lost. By sharing the database widely — including with a range of local news outlets that mined the material for stories of little interest to a global news operation — WikiLeaks got much more mileage out of the secret cables than we would have done.
The First Amendment protects a free press, Keller observed, but it doesn't extend to those like Bradley Manning, who take an oath to protect government secrets. And Manning's case might not be helped by "the fact that he delivered the goods to a group of former hackers with an outlaw sensibility and an antipathy toward American interests." Still, if his leak "provided comfort to the enemy," as the government has charged, "then so does every news story about cuts in defense spending, or opposition to drone strikes, or setbacks in Afghanistan."
Photo via Save Bradley / Flickr
Whatever good they have done, the video and cables have earned Assange and WikiLeaks a federal investigation, and earned Bradley Manning the possibility of life in prison. The leaks have also been cited as a reason for the awful treatment Manning has been subjected to while waiting 1105 days for a trial.
Though Manning certainly broke the law, it's not hard to read in his chats with Lamo and hear in his secret testimony that he was acting as a whistleblower, driven by his conscience. He wanted, he said at a hearing on Feburary 28th, to "spark a domestic debate on the role of the military and our foreign policy in general." Manning committed treason, the government is determined to prove at his trial next month. However his trial plays out, will history judge him as a criminal, as "the most dangerous man in America"? Or will it record his civil disobedience as a struggle against wrongdoing, and against the excesses of the secrecy that protects it?
Put another way, who has the right to steal secrets? One of the biggest surprises of Gibney's film is the origin of its title: not Assange, but his metaphorical enemy, Michael Hayden, the former director of the CIA. "Look, everyone has secrets," he tells Gibney. "Some of the activities that nation states conduct in order to keep their people safe and free need to be secret in order to be successful. If they are broadly known, you cannot accomplish your work. Now, I'm going to be very candid, right? We steal secrets; we steal other nations' secrets. One cannot do that above board and be very successful for a very long period of time."
Secrecy helps provide security. But does it trump a public's right to know when a government has overstepped its bounds, for instance by using diplomats to spy, or illegal drone strikes to kill? Should "state secret" laws criminalize attempts by journalists and intelligence analysts to "steal secrets," even if revealing those secrets serves the public good? And who gets to say what's good for the public, anyway?
When he coined the term "muckraker," the critic Aaron Bady observed once, Teddy Roosevelt pondered the delicate balance involved in leaking secrets. He lamented the new class of investigative journalist "who never does anything else, who never thinks or speaks or writes save of his feats with the muck-rake, speedily becomes, not a help to society, not an incitement to good, but one of the most potent forces for evil." But, he added, "There should be relentless exposure of and attack upon every evil man, whether politician or business man, every evil practice, whether in politics, in business, or in social life."
Assange took comfort in the President's words. In an epigraph to the first of a few philosophical essays he wrote in 2006, the year that WikiLeaks began, its hacker founder quoted from Roosevelt's 1912 Progressive party presidential platform:
“Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people... To destroy this invisible government, to befoul this unholy alliance between corrupt business and corrupt politics is the first task of statesmanship.”
Whatever one's opinion is of Assange or Manning or the impact of the cables, the government's reaction to whistleblowers in the wake of WikiLeaks helps clarify Julian Assange's excessive efforts at self-preservation. It should also give journalists, including Gibney, another reason to feel a little more angry and paranoid too.