The Wikileaks State Department Cables
by Mark W. Hibben
A Trove of Foreign Relations Information
I've never been as conflicted about the subject of my weekly articles as I have been for this week's subject, the Wikileaks release of classified US State Department cables. Although I'm sympathetic to Wikileaks goal of increasing governmental transparency and accountability, I can't approve of the release of the classified information in this case. But now that the information is out there on the Internet, I find the cables fascinating and revealing reading. Many news organizations have mined the cables for important insights into our relations (and difficulties with) the governments of Afghanistan, Pakistan and China. Although the national interest and security of the US may have been damaged by the release of the cables, I also believe that the US public has gained important knowledge in what they reveal. In this article I briefly review the issues of the legality of leaking the classified data, publishing the data, and the US Government's reaction in the aftermath. Throughout, my unresolved conflicts regarding Wikileaks will be readily apparent.
A possible violation of US Federal law was committed in transferring the classified information to Wikileaks or some other unauthorized intermediary. This may have happened in one of two basic ways:
1) A person within the US Government, holding a security clearance of the appropriate level and having access to the data, transferred the data by some means to a person without a clearance or “need to know”. Doing so willfully would be a criminal violation the regulations regarding the proper handling and storage of classified data, but it’s possible that the transfer occurred unintentionally. Unintentional compromises of classified information occur all the time, and are handled as “security violations” rather than criminal violations with disciplinary actions that can range from written reprimand through loss of the security clearance or even termination of employment. An example of an unintentional compromise would be an employee working on classified material on an unclassified computer, which is then hacked or stolen, resulting in the dissemination of the classified data.
2) A person outside of the US Government surreptitiously penetrated a Government computing facility (itself a crime), and then transferred the classified data outside of the facility (criminal theft of classified information).
Depending on Wikileaks involvement, either scenario could make Wikileaks criminally culpable, even without the publication of the classified data on their web site. For instance, if someone from Wikileaks induced or encouraged the person in scenario 1) to transfer the data to Wikileaks' computers, or make the data vulnerable by moving it to an unclassified computer or storage device, then Wikileaks' would be at least partially culpable. Similarly in scenario 2), if someone from Wikileaks engaged in the penetration or encouraged or aided a third party to perform the penetration, then Wikileaks would also be partially culpable.
Whether the publication by Wikileaks of the classified material is itself a crime is a more complex question that I doubt has clear-cut legal precedent.
The most applicable historical precedent is the case of the so-called Pentagon Papers, a Top Secret (TS) study of the Vietnam War commissioned by Defense Secretary Robert McNamara in 1967. In 1971, Daniel Ellsberg, who had worked on the study and had access to it as a cleared employee of the RAND Corporation, gave a copy of the study to the New York Times which began publishing excerpts. After three excerpts were published, the Nixon Administration obtained a federal court injunction blocking the Times from publishing additional excerpts. The NY Times appealed and the case was eventually heard by the Supreme Court, which ruled in favor of the Times. In a 6-3 vote, the Court ruled that the Government had failed to make the case for “prior restraint” to justify the injunction, and not whether the Times had violated Federal law in publishing the classified material. Indeed, a majority of Justices opined that the Government could still prosecute the Times under the Espionage Act of 1917, but any such effort in this regard was “overtaken by events” related to Watergate. A Federal prosecution of Daniel Ellsberg for stealing the TS study ended in mistrial due to contamination of the Government’s case by activities of participants in the Watergate scandal.
So the question of whether a news organization can be prosecuted for publishing classified information it receives from an unauthorized source hasn't really been answered. However, what is clear is that once the information is published, its publication becomes a public event that the news media in the US may freely report on, including reproducing the classified information, as the NY Times and other news organizations have done with the State Department cables, including basing articles on the cables and in some cases, directly reproducing them. This news reporting became protected by the First Amendment once Wikileaks put the classified cables on its public web site.
As reported by the NY Times, the Federal Government sent out an email notice to employees and contractors on December 3 warning them not to view or download the classified cables published on the Wikileaks web site. This seems to be an almost Orwellian act of thought control, and the reader may wonder under what authority is the US Government attempting to tell its employees what Internet sites they may visit. The answer is that the notice is directed primarily to those in the government and government contractors who hold security clearances.
The notice reads in part:
The recent disclosure of U.S. Government documents by WikiLeaks has resulted in damage to our national security. Federal agencies collectively, and each federal employee and contractor individually, are obligated to protect classified information pursuant to all applicable laws, as well as to protect the integrity of government information technology systems. It is a function of agency leadership to establish a vigilant climate that underscores the critical importance of the existing prohibitions, restrictions, and requirements regarding the safeguarding of the classified information.
Normally, only cleared personnel are obligated to abide by the regulations regarding proper safeguarding of classified material, since only cleared personnel have been properly trained and briefed. The US Government’s current position is that the classified cables published by Wikileaks are still classified, and have to be treated as such. (The Pentagon Papers’ DOD study is still considered classified as well.) The USG is putting cleared personnel on notice that downloading or viewing the classified data, especially on their home computers, is a security violation equivalent to any other instance of transferring classified data to an unclassified or home computer or device. Whether the USG will really enforce this ban in the way security violations are normally enforced remains to be seen. Normally, there has to be a significant possibility of compromise of the data for the security violation to be serious.
Anyone holding a security clearance sited for having looked at or downloaded the leaked classified cables from Wikileaks could appeal any finding of violation on the basis of there being no meaningful (additional) compromise. Clearly, the directive is as much about enforcing the proper attitude as anything else. Being cited for having looked at the leaked cables will be taken as indicating a less than “vigilant” attitude, which could adversely affect the individual’s perceived suitability to hold a security clearance.
Is this an infringement of the employee’s rights? Almost certainly. Freedom of the Press can hardly be a meaningful right if the Government can tell its citizens (or some of them) when and if a particular news organization may be viewed.
Unfortunately, such infringements of the rights of cleared personnel are par for the course, and most cleared personnel resign themselves to it as necessary to obtain and hold a security clearance. Since the granting of security clearances is a “privilege not a right”, government investigators frequently will hold someone’s clearance hostage if they feel the person’s conduct or attitude is unacceptable. The right of privacy is the one most frequently trampled, with investigators making statements such as “You have the right to refuse to answer our question, but doing so will adversely affect your suitability to obtain/retain your security clearance.”
In fact, the deeper motivation for the directive may be to facilitate the ongoing investigation into the source of the leaked cables. If we assume that the leak occurred by method 1), then it's very possible that the culprit may have or have had the classified material on an unclassified personal computer or device. As such, the presence of the material becomes evidence in the investigation of the culprit. If numerous cleared personnel have the leaked cables on their personal computers, this makes identifying the culprit that much more difficult.
The Broader Context
The privacy rights of individuals in the US have taken a beating in these past ten years of the “War on Terror”, just as the privacy rights of the US Government have been expanded in the name of national security. I do believe this is cause for concern, and I would like to see a reversal of this trend. For this reason, I’m somewhat sympathetic to Wikileaks’ call for greater governmental transparency. In the name of greater transparency, Wikileaks has mounted a frontal assault on the privacy rights of the US Government. After all, keeping things secret is what privacy is all about. If Wikileaks released the classified cables because it believes that the USG doesn’t have a right to privacy, then this is misguided to say the least. The US Government needs its privacy just as individual US citizens do. The problem we have right now in American society is that the Constitution doesn’t really delineate the legal bounds of individual or Governmental privacy.
Furthermore, there's no indication in the leaked cables of wholesale abuse of the classification system. The Government is not hiding evidence of malfeasance behind a veil of national security concerns.
The cables I've looked at appear to have been properly, if conservatively classified and marked. It does appear that cable originators often erred on the side of caution, especially in classifying descriptions of general political situations, but this is only natural, given the security clearance system's emphasis on caution. In short, it doesn't appear that publication of the cables can be justified on either ethical or legal grounds.
But I admit that now that the cables are “out there”, I have no compunctions about viewing or analyzing them, the Government’s directive notwithstanding. Fortunately, I no longer fall into either category of government employee or contractor. For any amateur or professional student of US international relations, the cables make for interesting if not fascinating reading. Certainly, US news organizations are not holding back in viewing, analyzing, and publishing the cables. They know a gold mine of information when they see it.