Outwiki’ed

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Amidst the tsunami of controversy generated by WikiLeaks dissemination of sensitive information and as frantic communications scurry across diplomatic and state channels; many wonder what the fallout shall be. The age old debate of what limits the media is afforded in the name of responsible journalism is reignited.

WikiLeaks is an international non-profit media organisation that publishes submissions of otherwise unavailable documents from anonymous sources and leaks. Within a year of its launch, the site claimed a database that had grown to more than 1.2 million documents. Mr. Julian Assange, founder of WikiLeaks describes the organization as an un-censorable system for untraceable mass document leaking and is hosted by PRQ, a Sweden-based company providing highly secure, no-questions-asked hosting services.

The legal status of WikiLeaks is complex as its servers are located throughout Europe and are accessible from any uncensored web connection. The founders of WikiLeaks have smartly located their Headquarters in Sweden in an attempt to take advantage of Swedens strong shield laws to protect confidential journalistic sources. WikiLeaks compilation of most wanted lists of confidential or classified materials raises legal grey area questions.

It is noteworthy that the Chinese and Thai governments have already censored the WikiLeaks website. The Lahore High Court, however, dismissed a plea by a local lawyer to ban WikiLeaks in Pakistan. The petitioner was of the view that the leaks were defaming the leadership of the country and must be banned inside Pakistan.

However, in late November 2010 a representative of the government of Ecuador made what was, apparently, an unsolicited public offer to Julian Assange to establish residency in Ecuador. Deputy Foreign Minister Kinto Lucas stated “we are going to invite him to come to Ecuador so he can freely present the information he possesses and all the documentation, not just on the Internet, but in various public forums.”

One ponders what fate awaits those spearheading the infamous organization and those who are in fact leaking confidential documents. Without getting into the merits, authenticity or ramifications of the latest leak, we can examine the legalities of prosecuting WikiLeaks and the publishers. The First Amendment to the United States Constitution vehemently protects the freedom of press and the freedom of speech. With respect to any content regulation of the Media the US Supreme Court has often declared that freedom, but not responsibility, is mandated by the First Amendment and accordingly it has insisted that the government may not force newspapers to publish that which they do not desire to publish.

However, the Espionage Act of 1917 imposes a maximum sentence of twenty years for anyone who causes or attempts to cause “insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States.” The fact that this mass dump of sensitive material by WikiLeaks has been harmful to the National Security of the United States is apparent and it is under the provisions of this law that the law enforcement officials in the US may attempt to prosecute the founders of WikiLeaks. However, not knowing where WikiLeaks information comes from is perhaps their best legal protection. Moreover, the location of the affiliates of WikiLeaks is unknown and for criminal proceedings to be initiated, they would have to be present in a country willing to arrest them for allegedly violating another countrys information laws. Furthermore, the founder of WikiLeaks, Julian Assange is an Australian citizen and most of his affiliates have been globally recruited, raising the obstacle of the US courts not having jurisdiction to try them.

It would be an unprecedented act, in light of the First Amendment, for the US Supreme Court to prosecute media personnel for disclosing information. In 1969 a similar saga took place when Daniel Elsberg leaked a top secret report on the Vietnam War information that became known as the Pentagon Papers, and was published in the New York Times. The Pentagon Papers clearly showed purposeful deception levelled at Congress and the American people by the Johnson Administration to further prosecute the war. The Nixon Administration attempted to block publication, but the US Supreme Court rejected the governments bid to bar publication, whilst Supreme Court Justice Potter Stewart stated when everything is classified, then nothing is classified.

The bottom line is that the US government certainly has the right to go after and punish the (unidentified) persons who leaked the information, but logistical and legal concerns dictate that civil or criminal charges against WikiLeaks or any of the three publications that published the information are unlikely to succeed.

Although the Washington Post and the US government may claim that WikiLeaks is a criminal enterprise and its founders should be brought to justice, it seems like theyve been outwikied.

On a separate but related note, accusations of rape against Assange surfaced earlier this summer in Sweden and Assange fled the country as the Swedish authorities issued arrest warrants in November. On 2nd December, the countrys highest court refused Assange permission to appeal the arrest order leading prosecutors to issue a European arrest warrant in his name. Although, Assanges location has been unknown for some time now, in a surprising turn of events, he turned himself in to British Police on Tuesday. His plea for bail was rejected when he appeared before the Londons City of Westminster Magistrates Court late Tuesday afternoon. It is to be seen whether Assanges attempts to fight against extradition to Sweden shall succeed.

The writer is a Law Associate working at the Law Inn. He can be sent at [email protected]