US: WikiLeaks Publishers Should Not Face Prosecution

Letter to President Barack Obama

December 15, 2010

Dear President Obama:

We write to express our concern at the prospect that the US government would employ espionage laws against WikiLeaks or its founder for the release of US State Department cables. Regardless of how one views the intentions, wisdom or strict legality of the WikiLeaks release, we believe that resorting to prosecution will degrade freedom of expression for all media, researchers and reporters, and set a terrible precedent that will be eagerly grasped by other governments, particularly those with a record of trying to muzzle legitimate political reporting.

Both international law and the US Constitution prohibit criminal punishment of those who report matters of public interest except in fairly narrow circumstances. One such situation would be the release of official secrets with the effect and intent of harming the security of a nation, in the sense of genuine threats to use force against the government or territorial integrity of a country. Diplomatic embarrassment, though potentially detrimental to the interests of the government, is not itself a threat to national security. Indeed, the secretary of defense, Robert Gates, rejected "overwrought" descriptions of the release's impact and described the effect on foreign policy as "fairly modest,"[1] a characterization that finds support in Secretary of State Hillary Clinton's remarks that "I have not had any concerns expressed about whether any nation will not continue to work with, and discuss matters of importance to us both, going forward."[2]

Even if some cognizable security threat were to be presented by a cable (only half of which are classified, and of those, most classified at low levels of sensitivity), it would be both unwise and of questionable legality to use the 1917 Espionage Act against WikiLeaks or other media who receive or republish information leaked by government employees. A distinguishing characteristic of the United States has always been its high standard of protection for speech. This leadership would be lost if the administration were to reverse the usual practice of pursuing only those who leak information and not those who receive it.

For the same reason, we urge you to reject legislative proposals that would broaden the scope of criminal sanction beyond that permitted by the Constitution and international human rights law to which the US is party. Instead, we urge you to pursue the declassification of information that is of public interest and not essential to national security, rather than to expand the scope of information subject to classification.

Once classified information is released to the public, particularly through means of mass circulation such as the Internet, a very strong presumption should attach that further restriction is unwarranted. Indeed, efforts to remove WikiLeaks and other websites from global accessibility have largely backfired by promoting mirror sites and further circulation. We note with concern government agency directives, such as that issued by the Department of Defense and the Office of Management and Budget, warning employees from accessing the classified materials that have already been published to the world on numerous websites,[3] and reports that the Library of Congress has consequently blocked access to the WikiLeaks site.[4] By asking people to ignore what has become widely known, such directives look ridiculous, invite widespread disobedience, and place federal employees at risk of arbitrary discipline and prosecution. Over-interpreting the 1917 Espionage Act to authorize prosecution of non-government agents who simply receive and publish leaked classified information could have similar chilling results. By that token, not only could the news media who republish the disclosed information be prosecuted, but so could all who download and read the material.[5]

The United States government and the Department of State in particular, has been an outspoken champion of Internet freedom globally, and condemned national "firewalls" and censorship of Internet sites. To maintain its credibility, we urge you to affirm that your administration will not seek to bar services to Internet publishers, or take down websites, merely because they have published material that the government believes should not be publicly available. We also believe it is important for the administration to affirm that it will not seek to pressure or influence any private enterprise to block or undermine any such website in the absence of a legal judgment. Human Rights Watch is very concerned by private companies' denial of services to WikiLeaks in the absence of any showing that any of its publications can legitimately be restricted consistent with the international right to freedom of expression.

This is a signature moment for freedom of expression, a value that the United States has defended vigorously throughout its history, at home and abroad. Human Rights Watch urges your administration to act positively to secure the rights of the media in a democratic society, and the record of the United States as a champion of speech.

Yours sincerely,

Kenneth Roth

Executive Director

Human Rights Watch

[1]"Gates: WikiLeaks ‘Embarassing, Awkward,'" Associated Press video, November 30, 2010, available at http://www.youtube.com/watch?v=5FnIhYBJmiM

[2] "US Condemns Release of WikiLeaks Documents," VOANews.com, December 3, 2010, http://www.voanews.com/learningenglish/home/usa/US-Condemns-WikiLeaks-Re...

[3] Ed O'Keefe, "WikiLeaks off-limits to federal workers without clearance, memo says," Washington Post, December 5, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/12/05/AR201012...

[4] Matt Raymond, "Why the Library of Congress is blocking WikiLeaks" Library of Congress Blog, December 3, 2010, available at http://blogs.loc.gov/loc/2010/12/why-the-library-of-congress-is-blocking...

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