{"id":54709,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/wikileaks-for-better-or-worse-or-both.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"wikileaks-for-better-or-worse-or-both","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/wikileaks-for-better-or-worse-or-both.html","title":{"rendered":"WikiLeaks: For Better or Worse — or Both?"},"content":{"rendered":"\n
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\"John<\/a><\/td>\n\n

WikiLeaks: For Better or Worse — or Both? <\/h1><\/td>\n <\/tr>\n\n

By JOHN W. DEAN <\/h2>
<\/a><\/td>\n <\/tr>\n

Friday, December 10, 2010<\/td>\n\n <\/tr>\n <\/table>\n\n

WikiLeaks has been making big headlines again — most recently, with the arrest of spokesperson and Editor-in-Chief Julian Assange, based on allegations that he committed two sexual assaults in Sweden. As readers are likely well aware, in late November of this year, Wikileaks released some 250,000 diplomatic cables and documents. The documents then trickled out from major news organizations, week after week. <\/p>\n\n

WikiLeaks, of course, is in the business of exposing secret information. It has leaked everything from classified information about the United States’s wars in Iraq and Afghanistan, to secrets of Scientology, not to mention the initiation ritual of the Alpha Sigma Tau sorority. <\/p>\n\n

Because of my own unique experiences with government secrecy in the Watergate years, and because I have written about the excessive secrecy of the Bush II presidency, I have received a number of media inquiries asking if I am interested in publicly defending Assange. However, when radio and television producers discover my feelings about this matter, they quickly see that my take on WikiLeaks will make neither exciting news, nor very good theater. <\/p>\n\n

Notwithstanding the media’s portrayal of the situation, this is not a black-and-white issue. Nor is this situation one where you must be either wholly for, or wholly against, WikiLeaks. Those who see Assange and other WikiLeaks members as evil and horrifying are just as wrong as those who find them heroic and praiseworthy. In fact, the organization and its work is all those things, which is both its strength and its weakness. In this sense, the organization is very much like the topic with which it deals, secrecy and openness: inherently conflicted. <\/p>\n\n

I find it troubling that this highly-secret organization, exploiting Internet anonymity, has failed to develop a clear set of criteria as to which secrets should be exposed, and which ought to remain secret. Accordingly, it seems to me that WikiLeaks is exposing for the sake of exposing, and that its members may have little appreciation for the true nature of secrecy. <\/p>\n\n

The WikiLeaks Assumption: Secrecy Is Bad, If Not Outright Evil <\/strong><\/p>\n\n

<\/strong>WikiLeaks describes its mission<\/a> rather broadly, characterizing itself as ” a non-profit media organization dedicated to bringing important news and information to the public” through “an innovative, secure and anonymous way for independent sources around the world to leak information to our journalists.” WikiLeaks says it is interested in publishing “material of ethical, political and historical significance while keeping the identity of our sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices.” <\/p>\n\n

If the “revealing of suppressed and censored injustices” were truly the controlling criterion of the organization’s decisions of when to leak, then it would be simply irrational to take issue with its mission. However, a close look at the secrets the organization has actually exposed, thus far, shows that — with some noble exceptions — their selection of the information that they are publicizing has little to do with “injustices.” And, it has everything to do with the simple fact that this information was previously considered secret. Their actions tell us much more than their words. <\/p>\n\n

Consider, for example, the leaks of which the organization is most proud, and which it sets forth on its webpage as exemplars of its work. It describes the 250,000 cables of U.S. Embassy communications traffic as documents that “will give people around the world an unprecedented insight into the US Government’s foreign activities.” However, as anyone who has looked at these cables knows, they do not feature “injustices”; rather, they simply chronicle the day-to-day workings of our foreign service as it looks out for American interests abroad. <\/p>\n\n

The cables have embarrassed us all because of their private candor, not because of injustices they reveal. And unsurprisingly, there is no evidence that the release of this information has served any useful purpose. To contend that this work constitutes a set of “suppressed and censored injustices” is absurd. <\/p>\n\n

Similarly, the so-called “Iraq War Logs” released by WikiLeaks are described as detailing “events as seen and heard by the US military troops on the ground in Iraq . . .” The organization contends that these “are the first real glimpse into the secret history of the war that the United States government has been privy to throughout.” <\/p>\n\n

While a case can be made that all war is “unjust,” that is not the nature of the material WikiLeaks has published. Rather, WikiLeaks has simply published revelations about the horrors that accompany all wars. Releasing this raw data has done nothing to heal the wounds of war; rather, it pours salt into them. <\/p>\n\n

Meanwhile, as far I can tell, there is no real claim of injustice whatsoever in WikiLeaks’s releasing the secrets of Scientology, or the rituals of Alpha Sigma Tau sorority, and other such TMZ-level information. Yet these leaks are consistent with what I can only conclude is the WikiLeaks assumption underlying all the leaks they publish: That secrecy is always bad, and openness is always good. <\/p>\n\n

This, however, is a deeply flawed assumption. In looking at WikiLeaks’s material, I can find only one apparent restraint on their releasing information, which they adopted after the fact — that the information’s release must not cause the death of anyone involved. It certainly was a good afterthought, but they need to think a bit more about what they are doing, before they go ahead and do it, with no better pretext than simply that they are making what was secret, public. <\/p>\n\n

The antidote to excessive secrecy, when and where it exists, is not wanton openness. In fact, there are often good and real reasons for secrecy, far short of a revelation’s causing someone’s death. <\/p>\n\n

The Nature Of Secrecy: Philosopher Sissela Bok’s Analysis <\/strong><\/p>\n\n

For me, no one has explored more deeply, nor written more clearly, about secrecy than American ethicist and moral philosopher Sissela Bok<\/a>. Her 1983 work, Secrets: On the Ethics of Concealment and Revelation<\/a><\/em>, addresses the legal, moral, and ethical issues of secrecy. Because these are often issues without clear answers, Bok raises all the questions that an organization like WikiLeaks should be examining before it assumes that all secrets are bad, if not evil. <\/p>\n\n

Bok’s three-hundred-page work examines secrecy in a real-world context, as she looks at its nature and its functioning in society. Of particular relevance to WikiLeaks are two aspects of Bok’s work: her conclusion that secrecy is neither inherently good nor inherently bad, but rather an essential of human life; and her examination of whistleblowing and leaking. <\/p>\n\n

Bok distills secrecy to its essence: “To keep a secret . . . is to block information about it or evidence of it . . . and to do so intentionally.” She finds intentional “concealment, or hiding, to be the defining trait of secrecy.” She concludes that silence is “the first defense of secrets,” and notes the links between secrecy and “stealth and furtiveness.” <\/p>\n\n

Indeed, Bok warns, “The link between secrecy and deceit is so strong in the minds of some, that they mistakenly take all secrecy (especially when protected by silence) to be deceptive. In doing so, they confuse secrecy with what is undoubtedly a common means for preserving it.” In fact, Bok points out, “[W]hile all deception requires secrecy, all secrecy is not meant to deceive.” <\/p>\n\n

Bok observes that based on his experiences in politics, Woodrow Wilson proclaimed (in 1913) that “Secrecy means impropriety.” (Later, as president, after suffering an incapacitating stroke, he used secrecy to remain in office, making good on his view of secrecy.) Bok’s work, however, shows that secrecy per se is not bad, nor is it necessarily evil, nor must it be evidence of impropriety. <\/p>\n\n

To the contrary, in drawing on traditions found in philosophy, religion and law, not to mention the nitty-gritty of life, Bok reveals how secrecy can “protect the liberty of some while impairing that of others.” Secrets, on one hand, “guard intimacy and creativity,” while on the other, they “tend to spread and to invite abuse.” Bok notes that secrecy can enhance a sense of brother- and sisterhood — forging loyalty and equality among insiders, while kindling discrimination against outsiders. Secrecy, she explains, is also needed to make effective plans and execute them, although those plans can be for both good and bad. In short, secrecy can be both appropriate and inappropriate. <\/p>\n\n

Bok is no fuzzy-minded, dreaming idealist, as those who know her work can attest; rather, she is a clear-thinking realist. And after careful analysis, she concludes that there is a “need for secrecy.” Secrecy takes on many guises, she explains: It “is as indispensable as fire to human beings, and as greatly feared.” Like fire, it can “enhance and protect life, yet both can stifle, lay waste, spread out of control.” <\/p>\n\n

After looking closely, Bok found that some “capacity for keeping secrets and for choosing when to reveal them . . . are indispensable for an enduring sense of identity, for the ability to plan and to act, and for essential belongings. With no control over secrecy and openness, human beings could not remain either sane or free.” <\/p>\n\n

In short, there is no basis, morally or practically, for the underlying assumption that emerges from WikiLeaks’s actions — namely, that secrecy is inherently bad, if not evil. In truth, not all secrecy is bad; rather, some secrecy is important to human existence. But it is not even WikiLeaks’s seemingly total disregard for secrecy and its unclear criteria for publishing secrets that are most troubling about the organization. Rather, it is WikiLeaks’s failure to recognize the true nature of leaks, and to see what, in most cases, they really reveal. <\/p>\n\n

The Nature of Leaks, and the Leaker\/Whistleblower Distinction <\/strong><\/p>\n\n

The late columnist\/journalist Bill Safire, author of Safire’s Political Dictionary<\/em>, defines a leak therein as the “[d]iscloure of information, usually concerning government or political activity, through unofficial channels, by what those embarrassed or exposed by such disclosure consider improper means.” <\/p>\n\n

Safire knows what he is talking about, because when he worked at the Nixon White House, he was notorious among his colleagues for his leaking. As a journalist, Safire fished for leaks; as a leaker, he fished for journalists. Thus, he well understood that the motives of a leaker are important in assessing the likely veracity of, and impetus for, any leak. WikiLeaks, however, ignores the motives of the leaker. <\/p>\n\n

Yet, for me, leakers are always cowards — particularly when they are viewed alongside (and as distinct from) whistleblowers. Sissela Bok looks at both leakers and whistleblowers, and while her approach is purely analytical, it is evident that she approves of whistleblowing, but not leaking. <\/p>\n\n

What, exactly, is the distinction? Whistleblowers, Bok explains, “make revelations meant to call attention to negligence, abuse, or dangers that threaten the public interest.” Whistleblowers “confront questions of loyalty, conscience, and personal concerns about careers and peace of mind.” <\/p>\n\n

Leakers, in contrast, are stealth operators. Or, as Bok writes, the leaker “is usually unknown to the public and sometimes even to the journalist and other intermediary.” They could include, of course, what Safire describes as “authorized leaks,” which are trial balloons to get a sense of public reaction, or — as too often occurs — to surreptitiously attack a political opponent with insider information and gossip. Usually, if not almost always, the leak is unauthorized and done for the sake of the leaker’s agenda. <\/p>\n\n

It has been my experience that whistleblowers are motivated by the public interest, while leakers are motivated by private interests, which may or may not serve the public good. WikiLeaks, which uses anonymous electronic drop boxes to obtain material, more than likely does not have a clue where the information is coming from, or why it is being leaked. <\/p>\n\n

Indeed, a foreign and unfriendly government could hack the U.S. Government’s computers, retrieve classified or other sensitive information, and drop the information in a WikiLeaks drop box, for the sole purpose of damaging the United States. Or, one company might hack into a competitor’s computers, and use WikiLeaks to damage the competition. <\/p>\n\n

Given WikiLeaks’s apparent hostile feelings toward any and all secrecy, and given the system by which they obtain leaks from unknown and unknowable sources — a fact that they boast will protect sources — this operation is something of a growing disaster in progress. <\/p>\n\n

While WikiLeaks has the potential for doing great good, it also has the potential for causing great harm. We must all hope that those who have joined Julian Assange in this effort might develop a meaningful set of criteria for what they will and will not publish, and then actually honor those standards. <\/p>\n\n

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\n<\/a>John W. Dean, a FindLaw columnist, is a former counsel to the president.<\/em><\/p>\n\n\n\n\n\n <\/div>\n

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