wikileaks: the pit and the pendulum

The modern concept of investigative journalism might be fairly derived from Bob Woodward and Carl Bernstein‘s work on the Watergate scandal that ended Nixon’s administration. But to me the real story began a few years earlier with Daniel Ellsberg and the Pentagon Papers. Here you can see where issues of transparency collided with secretive (and illegal) government activity.

Shortly after Ellsberg [and his colleague Anthony Russo] copied the documents, he resolved to meet some of the people who had influenced both his change of heart on the war and his decision to act. One of them was Randy Kehler. Another was the poet Gary Snyder, whom he’d met in Kyoto in 1960, and with whom he’d argued about U.S. foreign policy; Ellsberg was finally prepared to concede that Gary Snyder had been right, about both the situation and the need for action against it.

Throughout 1970, Ellsberg covertly attempted to persuade a few sympathetic U.S. Senators — among them J. William Fulbright, chair of the Senate Foreign Relations Committee, and George McGovern, a leading opponent of the war — to release the papers on the Senate floor, because a Senator could not be prosecuted for anything he said on the record before the Senate. Ellsberg told U.S. Senators that they should be prepared to go to jail in order to end the Vietnam War.

Ellsberg allowed some copies of the documents to circulate privately, including among scholars at the Institute for Policy Studies (IPS). Ellsberg also shared the documents with New York Times correspondent Neil Sheehan under a pledge of confidentiality. Sheehan broke his promise to Ellsberg, and built a scoop around what he’d received both directly from Ellsberg and from contacts at IPS.

On Sunday, June 13, 1971, the Times published the first of nine excerpts and commentaries on the 7,000 page collection. For 15 days, the Times was prevented from publishing its articles by court order requested by the Nixon administration. Meanwhile, Ellsberg leaked the documents to The Washington Post and 17 other newspapers. On June 30, the Supreme Court ordered publication of the Times to resume freely (New York Times Co. v. United States). Although the Times did not reveal Ellsberg as their source, he went into hiding for 13 days afterwards, suspecting that the evidence would point to him as the source of the unauthorized release of the study.

[…]He and Russo faced charges under the Espionage Act of 1917 and other charges including theft and conspiracy, carrying a total maximum sentence of 115 years. Their trial commenced in Los Angeles on January 3, 1973, presided over by U.S. District Judge William Matthew Byrne, Jr.

On April 26, the break-in of Fielding’s office was revealed to the court in a memo to Judge Byrne, who then ordered it to be shared with the defense.

On May 9, further evidence of illegal wiretapping against Ellsberg was revealed in court. The FBI had recorded numerous conversations between Morton Halperin and Ellsberg without a court order, and furthermore the prosecution had failed to share this evidence with the defense. During the trial, Byrne also revealed that he personally met twice with John Ehrlichman, who offered him directorship of the FBI. Byrne said he refused to consider the offer while the Ellsberg case was pending, though he was criticized for even agreeing to meet with Ehrlichman during the case.

Due to the gross governmental misconduct and illegal evidence gathering, and the defense by Leonard Boudin and Harvard Law School professor Charles Nesson, Judge Byrne dismissed all charges against Ellsberg and Russo on May 11, 1973 after the government claimed it had “lost” records of wiretapping against Ellsberg. Byrne ruled: “The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case.”

As a result of the revelation of the Fielding break-in during the trial, John Ehrlichman, H R Haldeman, Richard Kleindienst and John Dean were forced out of office on April 30, and all would later be convicted of crimes related to the Watergate scandal. Egil Krogh later pled guilty to conspiracy, and White House counsel Charles Colson pled no contest for obstruction of justice in the burglary. “The court concluded that Nixon, Mitchell, and Haldeman had violated the Halperins’ Fourth Amendment rights, but not the terms of Title III. The Halperins were awarded $1 in nominal damages in August 1977.”

There are a number of fascinating things to note here. Sheehan — a journalist — with his broken promises but ultimately protected, the extent of government misconduct to the point they literally could not prosecute Ellsberg and Russo under the Espionage Act. The Supreme Court reversed the government’s “gag order” on the newspapers, ruling that the First Amendment did protect the right of the New York Times to print the materials. These influential and seminal days in modern political discourse are what, I think, most people think of when they think of the function that “the media” is supposed to perform, and the protections it enjoys under the First Amendment.

So moving along some 40 years later, where we are ten years past 9/11 and the damage this event has done to our country in terms of our privacy and personal liberties. The journalistic pendulum has swung the opposite way: ever since 9/11, our media has become suborned by the government, complicit with it in covering up or delaying publication of “sensitive” material (wiretapping delay) or cooperating in the dissemination of information in order to discredit government opposition (Plame).

We now have a new cast of players with an unsettlingly similar plot. We have Wikileaks and Julian Assange, and we have Bradley Manning. We have gross government conduct int he pre-trial confinement of Manning, and in the determined attempts to frame a “credible” case against Assange under the Espionage Act. A government that has cracked down more so than any other — even its immediate predecessor — on whistleblowers and leakers, and that in fact recently torpedoed a Whistleblower’s protection act. We have even seen the mainstream media villify Wikileaks and Assange — even as they happily publish selected cables as they become available. So why the vitriol? Why have some players changed and others not? Why is this play repeating itself?

This article offers some intriguing insights, I think: Julian Assange and the journalism defence

But there’s a deeper conflict here. It reminds me, if this is not too high-flown a parallel, of the fundamental schism between Martin Luther and the Church of Rome. The 16th-century Church claimed that only ordained priests could safely and responsibly understand and interpret the word of God. To translate the Bible from Latin into the common tongues of Europe was therefore to commit sacrilege. But for Luther, Wycliff, Calvin and their ilk, the scripture must be put in the hands of all believers, for them to interpret as their conscience dictated. Whatever their differences, Bill Keller and Alan Rusbridger share a view about the journalistic job their papers had to do before they could publish the raw material brought to them by WikiLeaks: Keller: “to verify the material, to supply context, to exercise responsible judgment about what to publish and what not to publish and to make sense of it.” Rusbridger: “to … build a search engine that could make sense of the data, … to bring in foreign correspondents and foreign affairs analysts with detailed knowledge … to introduce a redaction process so that nothing we published could imperil any vulnerable sources or compromise active special operations.” WikiLeaks’s raw material, the implication is, was not only too voluminous and too shapeless, but also too dangerous, to be foisted on the public. It needed first to be interpreted by trained journalists, the priesthood of communications in the analogue age. By contrast, Julian Assange is a child of the digital age and a journalistic anarchist. His instinct is simply to publish. Let readers do their own interpretation. Who are journalists to decide on the public’s behalf what it should or should not be allowed to read?

The journalistic priesthood? What Wikileaks does is demolish that concept. With Wikileaks, we are all journalists — that’s the real fear.

If we are all journalists, none of us can be punished for revealing the truth, none of us can be punished for whistleblowing, and none of us can be punished for furnishing information to Wikileaks, completing the circle. It is in the state’s interest, it is in the established media’s interest to immediately suppress this kind of heresy. The state and the mainstream media have evolved a cozy, mutually beneficial, co-dependent power dynamic that neither want disturbed.

We are all journalists. Remember, the Mubarak regime went after the bloggers and twitterers as much if not more than they did after “real” journalists.

Also, this changes who they are accountable to. The mainstream media actually consider themselves accountable to the government these days, rather than to the public — which only requires entertainment, not real information. Remember, information is the currency of communication: control one and you control the other. The transparent model that online culture is built around is inherently — by its very structure — hostile to mainstream notions of heirarchy and control.

And Wikileaks is pounding on that door. Actually, I think it’s knocked it flat — it’s just that what with all the dust and rubble, no one’s quite noticed that door is permanently and completely blown aside. The pendulum is swinging back.

Even that all said, strictly speaking, Wikileaks isn’t quite a completely non-mediated publisher of leaks. That’s information that mainstream media has been reluctant to disseminate widely. It is a trope that should have been put to rest long ago but for the interests of many to argue that Wikileaks, and therefore Assange, are not journalists and therefore do not have journalistic protection. Please tell me how reviewing the material, redacting names to protect the innocent, and entering into agreements with traditional media — newspapers — from five different countries: Spain (El País), France (Le Monde), Germany (Der Spiegel), the United Kingdom (The Guardian), and the United States (The New York Times) is not “just publishing raw material”.

Nevertheless, the Wikileaks saga clearly points the way to a very different model of information acquisition and distribution, that rightfully has the traditional model of journalism on the cusp of great change — which they will fight to prevent, in self preservation.

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