The First Amendment litigator disparages Julian Assange’s secret-busting enterprise.
By Jack ShaferPosted Wednesday, Dec. 29, 2010, at 3:57 PM ET
WikiLeaks founder Julian Assange . Click image to expand.Julian AssangeDid an imposter steal Floyd Abrams’ identity and use it to sell an op-ed in today’s Wall Street Journal? That’s the only explanation I can come up with after reading the First Amendment litigator’s wacky battering of WikiLeaks and its founder, Julian Assange (“Why WikiLeaks Is Unlike the Pentagon Papers”).
Abrams, who represented the New York Times in both the Pentagon Papers and Judith Miller cases, applauds Pentagon Papers leaker Daniel Ellsberg because he withheld four volumes of papers—while releasing 43—because he “didn’t want to get in the way of the diplomacy.” That is, Ellsberg didn’t want to interfere with ongoing and confidential negotiations to end the war. Continuing his “Ellsberg good,” “Assange bad” formulation, Abrams asks, “Can anyone doubt that [Assange] would have made those four volumes [of the Pentagon Papers] public on WikiLeaks regardless of their sensitivity?”
Well, yes, I can doubt that.
Perhaps because Abrams listens to too much NPR or doesn’t read the New York Times very closely, he’s under the misconception that WikiLeaks has published all 251,287 U.S. diplomatic cables it claims to possess. It hasn’t, as NPR noted in a correction yesterday. WikiLeaks has released just 1,942 cables, which makes Assange’s ratio of released-documents to withheld-documents much, much smaller than Ellsberg’s. By that measure, Abrams should regard Assange as a more conscientious leaker than Ellsberg, not less conscientious.
Oddly, for all the condemnation that Abrams slings Assange’s way, he doesn’t pinpoint any lasting “damage” to diplomacy done by the leaked cables and the news reports based on them. Struggling to find something bad to say about Assange, he quotes historian Sean Wilentz of Princeton, who described WikiLeaks as being rooted in a “simpleminded idea of secrecy and transparency” and said it is “simply offended by any actions that are cloaked.”
Simpleminded. Offended. Cloaked. Oh, that’s getting to the heart of the matter!
If Wilentz projects an accurate portrait of the WikiLeaks mindset—and I don’t think he does—so what? I prefer the historian who would rather bathe himself in secret documents than fret about a source’s simplemindedness.
Abrams articulates his dislike of Assange best when he writes dismissively that the cables “demonstrate no misconduct by the U.S.” Does he mean to imply that publishing state secrets can be defended only if they catch the government murdering, stealing, kidnapping innocents, fouling pristine rivers, or betraying allies? It may startle Abrams to learn that the diplomatic process has always been treated as news. Any of the cables now in the news would have made a splash had they been leaked in the conventional, non-WikiLeaks fashion.
What’s the true source of Abrams’ wrath? It’s not the leaking that bothers him—Lord knows he’s defended leakers aplenty in his career. And it’s not the subject matter of the cables, which even he must concede has yet to start World War III. What starches his shorts is the scale of the WikiLeaks leaks, which violate his sense of tidiness. I also suspect that he worries about Assange and Assange-ites disrupting the control over news that his legal clients have long enjoyed.
Near the end of his Journal piece, Abrams also confesses that WikiLeaks’ tactics have scuttled proposed federal shield-law legislation that would give sanctioned journalists new legal cover to protect confidential sources. Big deal. Not every journalist swoons for a federal shield law. See Part 1 and Part 2 of my attack on the legislation that was active in 2008.
To calm Abrams down, I suggest that he read the single best piece written about WikiLeaks: Gideon Rachman’s Dec. 13 op-ed in the Financial Times, “America Should Give Assange a Medal” (registration required). Among the greatest of WikiLeaks’ revelations, Rachman writes, is that “the public position taken by the US on any given issue is usually the private position as well.” Much to the disappointment of conspiracy theorists the world over, Rachman continues, the cables provide “very little evidence of double-dealing or bad faith in US foreign policy.”
Rachman saves the best for last by closing: “America’s foreign policy comes across as principled, intelligent and pragmatic. That was, perhaps, the best-kept secret of all.”
Abrams seems suffocated by a narrow idea of what constitutes an act of journalism, criticizing Assange because WikiLeaks “offers no articles of its own, no context of any of the materials it discloses, and no analysis of them other than assertions in press releases or their equivalent.” Is he trying to say that if Assange stitched some journalistic needle-point of his own into his document dumps that his anarchistic opposition to government secrecy would be more tolerable?
News is the thing they don’t want you to know. Will somebody tell Abrams?