2010-11-28 WikiLeaks v. United States: The Pentagon Papers redux? [Update 1]

Much of the media this morning has been reporting on the letter issued last night by State Department legal advisor Harold Koh to Julian Assange (previous coverage here). A PDF copy of the letter in its full extent was made available by The Washington Post here. [Update: The entire WikiLeaks / State Department correspondence is now available via Index on Censorship and The New York Times]

The Washington Post: WikiLeaks gets warning from State Department: Documents' release would have 'grave consequences'
BBC: US warns WikiLeaks' Assange on possible leak
Financial Times: White House says WikiLeaks putting ‘lives at risk’

A few points in Mr. Koh's letter warrant closer attention:

1. "As long as WikiLeaks holds such material, the violation of the law is ongoing."

Mr. Koh does not clarify which law he might be referring to. If referring to the publication of classified information, US Supreme Court precedent argues against Mr. Koh's claim: New York Times Co. v. United States, 403 U.S. 713 (1971), aka The Pentagon Papers case.

2. The publication would "place at risk the lives of countless innocent individuals."

This is the same claim previously made by the Department of Defense in relation to the publication of the Afghan and Iraq war logs. It bears repeating that the claim was unsubstantiated both times, and that Defense Secretary Gates, Pentagon spokesman Geoff Morrell and NATO officials have admitted as much: Debunked: "WikiLeaks has blood on its hands".

3. "You should: 1) ensure WikiLeaks ceases publishing any and all such materials; 2) ensure WikiLeaks returns any and all classified U.S. Government material in its possession; and 3) remove and destroy all records of this material from WikiLeaks’ databases."

This echoes the request made by Pentagon spokesman Geoff Morrell with regards to the publication of the Afghan war logs. As Daniel Ellsberg observed, this was exactly the language used when the US government attempted to use the Espionage Act against him for the publication of the Pentagon Papers. The courts disagreed.

This is perhaps the right time to remember US Supreme Court Justice Black's words in the Pentagon Papers case:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.[...]

To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes - great man and great Chief Justice that he was - when the Court held a man could not be punished for attending a meeting run by Communists.

"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free [403 U.S. 713, 720] assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."