Why WikiLeaks Is Not Pentagon Papers 2.0

Floyd Abrams, lawyer in landmark First Amendment case, says even Daniel Ellsberg kept some secrets

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Daniel Ellsberg leaked the Pentagon Papers to expose the secret history of the Vietnam War. WikiLeaks released 250,000 secret state department cables just because they were, well, secret. Even Ellsberg kept some secrets, and that is the difference between the two cases, Floyd Abrams argues in The Wall Street Journal, continuing the now months-long debate over whether WikiLeaks is a Good Thing or a Bad Thing.

Abrams, who represented The New York Times in the Pentagon Papers case, writes that a less-discussed but critically important decision Ellsberg made was to keep four volumes of the Defense Department documents secret, even as he leaked 43 others. Why? Because releasing them would have exposed derogatory statements about foreign leaders--much like the catty comments about several international figured revealed by WikiLeaks--and endangered diplomatic efforts to end the war.

Assange would have released those volumes, without a care for the consequences, Abrams asserts. Furthermore, Ellsberg had a specific target. WikiLeaks doesn't. And in the long run, WikiLeaks could hurt the press's ability to expose, say, the secret bombing of Cambodia. "Mr. Assange is no boon to American journalists. His activities have already doomed proposed federal shield-law legislation protecting journalists' use of confidential sources in the just-adjourned Congress. An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense. If he is not charged or is acquitted of whatever charges may be made, that may well lead to the adoption of new and dangerously restrictive legislation. In more than one way, Mr. Assange may yet have much to answer for."

  • Interesting Case for Abrams to Make, Politico's Ben Smith notes. "It's curious that Abrams, a lawyer with a long history of representing media outlets who Sen. Daniel Patrick Moynihan called the 'most significant First Amendment lawyer of our age,' has taken such a dim public view of Wikileaks, and it's a testament to the ongoing debate on whether Assange and his organization deserve the same protection and consideration as journalists."
  • Style Should Matter a Bit Less, Athenae says at First Draft.
This is something I noticed a lot back in the early days of blogging, and still do see quite a bit of: The general disdain for passionate pursuit of a story, and the arguing of demeanor versus actual, you know, stuff. What WikiLeaks is doing might be okay if it didn't 'revel' in it, roll around in it like a dog in the snow. If only everyone were completely serious, like that nice fellow Mr. Ellsberg, and very very quiet, and didn't wave a big foam finger around. ... Note that the concept of opposing government secrecy on any level just because is seen as revelling in destroying America. As opposed to a legitimate disclosure of information that, to Floyd Abrams at least, is critial to understanding just what the blue hell is going on.
  • WikiLeaks Has Put Lives at Risk Already, William A. Jacobson argues at Legal Insurrection, because the leaks have "damaged international attempts to rid Zimbabwe of the Mugabe regime. " And beyond that, Wikileaks has damaged our ability to conduct diplomacy, where off-the-record frank conversations are critical. Defenders of WikiLeaks have constructed a justification that Manning is just another Daniel Ellsberg of Pentagon Papers fame someone who sought to bring truth to the historical account of major events, and Assange as merely a conduit.  Since Ellsberg is something of a folk hero to the left, the comparison has a superficial appeal." Jacobson thanks Floyd Arams "for scraping the shine off the gloss people like Glenn Greenwald are putting on the whole WikiLeaks affair."
  • But the Leaks Did Expose Misconduct, Marchy Wheeler writes at FireDogLake, contrary to Abrams' assertion that the cables showed no diplomatic misbehavior. What about the documents revealing that Germany and Spain were pressured to drop prosecutions of American torture?  Wheeler fails to see how "how any person--much less a constitutional lawyer--claim that US efforts to get other democracies to set aside rule of law in their countries to help the US avoid responsibility for its crimes is not an abuse of power."
This article is from the archive of our partner The Wire.