Whenever a new mode of distributing information becomes common, the powerful react by resisting erosion of their control over information. After the printing press was invented in the West, monarchs and popes all sought to use licensing, or absolute bans, to dam up the increased flow of information. Similarly, the apartheid state in South Africa banned television out of fear that its images would arouse disaffection.
The furor surrounding WikiLeaks is the newest example of how changes in information technology challenge the use of secrecy by authority. Whereas in 1969 Daniel Ellsberg needed six weeks to sift through and photocopy the 7,000 pages that came to be known as the Pentagon Papers, today, the Internet allows individuals to distribute massive amounts of information almost instantly. But in the long run, governments will no more be able to prevent the erosion of their control of information by the Internet than monarchs and popes could collar the printing press. The true danger of the WikiLeaks furor is that they will try.
Of course, WikiLeaks does reveal some problems that governments probably should address. There is no reason why a private serving in the army should have access to the State Department’s diplomatic cables, nor why his huge volume of downloading should not have been instantly recognized.
But the widened access came as a reaction to the 9/11 Commission’s conclusions that there is far too much secrecy in America, and that instinctive turf protection by government agencies (such as the CIA and FBI) helped cause 9/11. WikiLeaks was the product of the government’s overexuberance to share information without carefully constructing a system for balancing transparency with legitimate secrecy. A better method for sharing intelligence data was needed. It still is.
But the main danger WikiLeaks poses for the nation is that it will provoke a score of “the sky is falling” scenarios to justify derailing the sensible 9/11 Commission recommendations by excessively tightening rules for classification and secrecy and increasing penalties on disclosure or publication of official information. We are told, for instance, that other nations will now be afraid to negotiate or work with us on matters of diplomacy and national security. We have heard this siren song before: It was the Nixon administration’s exhortation to the U.S. Supreme Court against publication of the Pentagon Papers — which proved illusory. That refrain was echoed in the 1970s, when the Senate’s Church Committee, for which I was chief counsel, reported questionable CIA activities and we were incorrectly warned that other nations would no longer share secrets with us. The facts proved otherwise.
Likewise, the sky has not fallen because of the leaks, and effective American diplomacy has not ended. If we allow WikiLeaks to become the rallying cry for those who wish once more to clamp down on governmental information in the guise of “national security,” the American people will suffer.
Unfortunately, the Obama administration is already taking steps in that direction by searching for legal justification for prosecuting the organization’s founder and operators. In doing so, the government is actually causing the damage that WikiLeaks did not — “wide condemnation” of American officials and politicians in international news media and, as one newspaper in Germany put it, the raising of Julian Assange to “martyr status.” Only once removed from the question of Assange’s legal culpability is whether the mainstream press is legally culpable for telling the American people what WikiLeaks already made public. Legislators and legal scholars are already plowing that ground. If they find that they cannot reach WikiLeaks through current laws, the problem of too much secrecy will be lost in the hype over how to prosecute those people who divulge secrets in the future.
The fact is that we already classify and hide too much information and intelligence. The 9/11 Commission, various other government commissions since the 1950s, and recently Defense secretaries Donald Rumsfeld and Robert Gates have all argued that the sheer abundance of unnecessarily secret information in the executive bureaucracy is a hindrance, not a helpful precaution. As WikiLeaks demonstrates, that secrecy is costlier and more challenging than ever in the Internet age, and is largely a losing battle. The government attention and resources diverted for the sake of preserving massive amounts of secrecy should instead be used to better protect and utilize our truly legitimate and crucial secrets.
Frederick A.O. Schwarz Jr. is chief counsel of the Brennan Center for Justice at New York University School of Law. He is working on a book about secrecy for The New Press.