Tuesday Morning Quarterback on Wikileaks

By Jack Goldsmith
Tuesday, December 21, 2010, 4:42 PM

Gregg Easterbrook of TMQ making a point similar to one I have been harping on (thanks to Paul Stephan for pointing me to it):

Leaks Don't Come Out of the Sky: Is the WikiLeaks disclosure of Pentagon and State Department internal documents dangerous because it reduces U.S. military and diplomatic effectiveness?  Or good because it pulls down the veil of secrecy around government? Obviously, there are arguments on both sides.  Here's what struck me.  Last week, this New York Times Page 1 story reported that the Obama administration “plans to further step up attacks on al-Qaeda and Taliban insurgents in the tribal areas of Pakistan.”

Maybe that's a good idea; maybe it's not.  But as an item of information, the Times story is far more explosive than anything so far in WikiLeaks disclosures, most of which contain trivia and statements of the obvious.  The Times story tells al-Qaeda and Taliban factions in tribal Pakistan that raids and air strikes will increase.  The story is a warning of something about to happen rather than a retrospective on prior events. And the story is sourced to unnamed “administration officials.”  That is -- the information was leaked by the White House or Pentagon.

Perhaps the purpose of the leak was to make the president sound tough at a time when his poll numbers are fluttering. Perhaps the purpose was to make the U.S. military sound powerful at a time when a $725 billion Pentagon budget request was awaiting approval in Congress.  The purpose cannot have been to help American soldiers and air crew in the field.  Their chances would be best if U.S. forces struck al-Qaeda and Taliban targets without warning, with nothing said by the White House or Pentagon until after the operation was over.

I don't question the Times' decision to run the story.  What I question is White House and Defense Department officials denouncing Julian Assange when he publishes leaks that embarrass the powerful – then merrily using leaks themselves when they think the powerful will benefit.  If revealing government information is, on its face, an offense, White House and Pentagon officials who leak to reporters should be chased across the world and prosecuted just as vigorously as Assange.

Maybe the WikiLeaks idea is indeed wrong.  But compared to White House and Pentagon officials who leak to the media when it suits them, isn't Assange – who uses his name rather than hiding behind anonymity – the honest one?

If DOJ tries to prosecute Assange, we will see more and more scrutiny of double standards in the treatment of traditional media leak solicitors (NYT etc.) v. Assange, and of double standards in the treatment of high-level U.S. government leakers v. Assange.  Scrutiny of the first double standard will weaken press freedoms as the government condemns as criminal the everyday practices of national security reporters (and other reporters) in soliciting and facilitating leaks of classified information.  (Vice-President Biden’s distinction between Assange conspiring to get classified information from Bradley Manning and a traditional media reporter having a piece of classified information drop in his lap without solicitation is very naïve.)  Scrutiny of the second double standard will reveal the shocking regularity with which top government officials leak classified information, not obviously in a principled manner, and not obviously consistently with the rules governing the handling of such information.