December 16, 2010

What concerns does Human Rights Watch have about the latest release of thousands of US diplomatic cables by WikiLeaks?

Should Julian Assange be prosecuted?

Does international law address situations like the WikiLeaks releases?

How is "national security" viewed under international law?

Is the WikiLeaks release a form of "attack" on the US?

Isn't releasing hundreds of thousands of classified communications from US diplomats a threat to the national security of the United States?

How are the WikiLeaks releases different from earlier leaks of classified information?

But isn't WikiLeaks different from The New York Times or other traditional media?

Should private companies like Amazon, PayPal, MasterCard, Visa or EveryDNS withhold services to WikiLeaks?

Should the US Congress explicitly outlaw publication of classified information?

What can the government do to prevent this sort of leak in the future?

 

What concerns does Human Rights Watch have about the latest release of thousands of US diplomatic cables by WikiLeaks?

One concern has been whether the cables will include revelations about human rights defenders that would place them at greater risk. Human Rights Watch has raised, and will continue to raise, such concerns with WikiLeaks and other news media publishing the cables.

In addition, government and private reactions to the WikiLeaks releases cause serious concerns about freedom of expression and the role of private companies in interfering with freedom of expression, as discussed below.

Should Julian Assange be prosecuted?

Human Rights Watch takes no position on the charges of sexual assault put forward by Sweden's prosecutors. Human Rights Watch believes that Assange, the WikiLeaks founder, like any other person accused of a crime, should be accorded the full range of due process rights under international, United Kingdom and Swedish law.

Human Rights Watch views with deep concern proposals that Assange, or WikiLeaks, be prosecuted under the US Espionage Act or similar laws for simply receiving or republishing information that is classified or embarrassing to the US or other governments, in the absence of a clear showing of a threat to national security and an intent to harm national security.

Does international law address situations like the WikiLeaks releases?

The International Covenant on Civil and Political Rights, which the US ratified in 1992, states that the right to freedom of expression includes the "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print ... or through any other media." This right is only subject to restrictions that are "provided by law and are necessary" for respecting the rights or reputations of others, or for "the protection of national security or of public order (ordre public), or of public health or morals." Such restrictions must be specific, applied narrowly, and proportionate. That is, laws restricting free expression must be sufficiently precise to enable an individual to regulate conduct accordingly, and cannot confer unfettered discretion on those charged with its execution. And the government must show that the specific action taken is necessary by establishing a direct and immediate connection between the expression restricted and the threat faced.

How is "national security" viewed under international law?

Under international law, restrictions on free expression for national security reasons must be specific, applied narrowly, and proportionate. The concept of national security is not equivalent to any possible national interest. According to "The Johannesburg Principles for National Security, Freedom of Expression and Access to Information," a legitimate restriction on the basis of national security must have as its "genuine purpose and demonstrable effect...to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government." Embarrassment to a government, concealment of wrongdoing, and hiding the workings of public institutions, are not of themselves threats to national security.  

Is the WikiLeaks release a form of "attack" on the US?

No clear evidence has been put forward that would support a conclusion that the WikiLeaks releases indicate intent to attack the US. Statements by public figures to the effect that Assange is a "terrorist" or that he should be assassinated are not only highly irresponsible but may themselves encourage violent or unlawful responses to the leaks.

Isn't releasing hundreds of thousands of classified communications from US diplomats a threat to the national security of the United States?

Not necessarily. Although the volume of leaked information is unprecedented, much of the actual information so far appears to be in the public domain or of legitimate public interest, as reflected by the fact that the highest classification of the cables - "secret," for a small fraction - is itself a low/intermediate grade. The fact that the government has classified a communication does not in itself mean the communication's publication would harm the nation's actual security. Many things are classified simply because it is in the interest of the US government to keep internal communications, as well as candid or embarrassing diplomatic reports, out of general circulation. However, international law and the First Amendment of the US Constitution protect the reporting of information of interest to the general public except under fairly narrow circumstances that are not implicated in many of the reasons for marking a document "secret."

On November 30, US Secretary of Defense Robert Gates told the Associated Press that every other government in the world knows the US government "leaks like a sieve" and has for a long time. He said, "I've heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think -- I think those descriptions are fairly significantly overwrought. ... Is this embarrassing? Yes. Is it awkward? Yes. Consequences for US foreign policy? I think fairly modest."

How are the WikiLeaks releases different from earlier leaks of classified information?

The main difference between the current releases and other leaks of classified information is the sheer volume of material that is coming out. Earlier WikiLeaks revelations concerning US operations in Afghanistan or Iraq may well have been more sensitive or relevant to ongoing military actions. WikiLeaks has released information about other governments, and the US media have frequently published classified information in the past.

But isn't WikiLeaks different from The New York Times or other traditional media?

While WikiLeaks is focused specifically on releasing original documents that are non-public, bringing non-public facts to light is part of what most journalists and researchers do. Moreover, most of what WikiLeaks publishes-information on government operations-is likely to be of interest to the public in a democratic society. Prosecution or adverse actions against WikiLeaks are likely to set legal and policy precedents that can be used against all news and research media.

Should private companies like Amazon, PayPal, MasterCard, Visa or EveryDNS withhold services to WikiLeaks?

Private companies have a responsibility to uphold human rights standards in their operations. One of those standards is the right to information and freedom of expression. The companies that have withdrawn services to WikiLeaks have done so under a variety of rationales, from terms-of-service violations, to concern that WikiLeaks may be engaged in illegal action, although none have been proven. It has shown how dependent publishers can be on the relatively small number of companies that act as effective "gatekeepers" to mass internet access. Human Rights Watch encourages all corporations to resist becoming proxy censors for governments that act in violation of the international guarantee of freedom of expression and information. To ensure that they do not become censors, they should have effective human rights policies and procedures in place to safeguard freedom of expression and privacy online.

Human Rights Watch also urges governments to refrain from placing pressure on private companies to deny access or services to sites they consider to be publishing illegal material, in the absence of a legal judgment that is consonant with international guarantees of freedom of expression and information.

Should the US Congress explicitly outlaw publication of classified information?

Much information that is presently classified by the US government should be made accessible to the public; the Obama administration should reverse the trend of recent administrations toward over-classifying government information. Extending penalties would move in the wrong direction and would run counter to the protection of the free exchange of ideas needed in a democracy. That is certainly true of the hazy and sweeping provisions of the recently proposed "SHIELD" Act. This bill, put forward by Senators Joe Lieberman, Scott Brown and John Ensign, would criminalize publishing information concerning the identity of any "classified sources" or intelligence informants, as well as information "concerning the human intelligence activities of the United States or any foreign government" if such publication is "prejudicial" to US interests. This is far beyond what is necessary to protect the national security interests of the United States.

What can the government do to prevent this sort of leak in the future?

Governments are entitled to prevent their employees from releasing confidential information. There are many legitimate reasons governments withhold communications and documents from public circulation at any given moment. But governments also have a positive duty to give the public access to information, and particularly information about the workings of government itself. This duty can be realized by not criminalizing the media's act of publishing leaked information, by providing information in response to public request, and by limiting the amount of information that either remains or becomes classified.

News organizations have estimated that about half the cables and other materials in the latest WikiLeaks release are not classified, and less than 10 percent of the materials are classified "secret" or "no for," the highest categories in the release and themselves only a low-to-intermediate grade of classification.

The practice of recent US administrations has been to reverse a trend toward declassification of government documents. This is a good moment for the Obama administration to look hard at whether government classification practices in general are overbroad, and whether the material that has been released should still be treated as "classified," much less as national security information. Human Rights Watch is concerned that US government agencies have instructed employees not to access the already released documents unless they have proper clearance, and have caused the Library of Congress to block access to the WikiLeaks site. Governments should reiterate their commitment to transparency and the public's right to know, rather than trying to classify broader swaths, threatening dubious prosecutions, intimidating private businesses, or proposing laws that would trammel freedom of expression or information.