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WikiLeaks Ban or Global Secrecy Act?

By D.H. Kerby
November 11, 2010

Sen. John Ensign, a Nevada Republican, has proposed amending the Espionage Act specifically to target WikiLeaks and other media organizations that “publish the name” of anyone “helping in our efforts against terrorism.”

In so doing, Ensign gives legislative expression to a firestorm of criticism against WikiLeaks emanating from the U.S. defense and intelligence establishments and also from many in the American mainstream press.

However, given that WikiLeaks is an international news organization, Ensign’s proposal also raises the specter of some kind of global secrecy act that would criminalize any media outlet that discloses the name of anyone who has collaborated with U.S. intelligence agencies or the U.S. military anywhere in the world, regardless of the context.

Ensign’s idea is particularly breathtaking because during the long Cold War and today’s “war on terror,” many collaborators with the CIA and other U.S. agencies have been linked to drug trafficking, human rights abuses, military coups and even terrorism. Presumably, under Ensign’s plan, journalists around the world would face prosecution for making those connections.

Under his proposal, journalistic intent would not be considered. After all, the chief purpose of recent WikiLeaks’ disclosures of secret U.S. military reports was to put a spotlight on the torture, murder and unnecessary killing of people in Afghanistan and Iraq during the U.S. military occupations of those countries.

WikiLeaks also made efforts to delete the names of some informants and withheld some documents where the risks to individuals were judged to outweigh the value of other information contained in those reports.

In addition, an initial Defense Department review of the leaked records failed to identify any sources or methods that were compromised by WikiLeaks. That review contradicted earlier claims by Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, who suggested that WikiLeaks had put sensitive sources and methods at risk.

However, after studying the actual disclosures, the Defense Department concluded that there apparently was no such harm.

Indeed, what the Wikileaks disclosures on the Iraq War do, primarily, is document large numbers of civilian deaths as well as the torture of detainees and sometimes their murders. Some of these revelations have caused the U.S. government PR damage but only because people around the world got a real-life glimpse into the day-to-day operations of the war.

Protecting War Criminals

Ensign and other legislators joining his efforts to criminalize WikiLeaks would stand in the way of justice for countless innocent victims of these wars. After all, a war crime cannot be prosecuted if it is kept secret.

If the code of silence among U. S. military and intelligence personnel is so strictly enforced that war crimes and crimes against humanity are successfully hidden, the perpetuation of such crimes becomes even more likely.

And, if there is no organization like WikiLeaks to amplify the voices of those brave enough to disclose violations of human rights by the U.S. military and its allies, those voices will be marginalized, discredited and sometimes silenced.

Consider what happened to Joe Darby, the military policeman who handed the Abu Ghraib  photographs (showing U.S. military guards abusing and humiliating Iraqi detainees) to an Army investigator. Since that disclosure, Darby has at times gone into hiding from vengeful members of his own country’s military.

So, criminalizing WikiLeaks may well deny victims of war crimes international legal attention by helping to keep the crimes secret and thus may protect the perpetrators. That is the larger issue.

More narrowly, there is the question of how Ensign’s plan to amend the Espionage Act would be applied to a news organization like WikiLeaks, which is not based in the United States but rather operates through Web sites in Scandinavia and elsewhere.

Ensign is proposing something like a global secrecy rule that would criminalize the disclosure of the name of anyone who collaborates with U.S. intelligence and military agencies anywhere in the world, even if the disclosure comes from a foreign news organization.

The underlying assumption seems to be that the entire world should see U.S. interventions abroad as so clearly in the planet’s interests that all collaborators with these operations deserve anonymity even if they are guilty of human rights abuses or other crimes.

Ensign also makes clear that another purpose of his legislation is to punish news outlets, like WikiLeaks, for undercutting U.S. military goals.

"With this newest document dump, WikiLeaks has knowingly endangered the lives of thousands and further threatened our military efforts,” declared Ensign in a press release. “My legislation will extend the legal protections for government informants, such as the Iraqis named in this latest document dump, and will prevent an organization such as WikiLeaks from hiding like a coward behind a computer mainframe while putting lives in jeopardy."

Ensign said his bill would accomplish this by amending the Espionage Act to make it illegal to publish the name of any human intelligence informant to the U.S. military and intelligence community.

Behind the Bluster

What is really going on here?

Ensign’s proposal seems to be a mix of legislative grandstanding and a desire to punish people who dare pull back the veil concealing the ugly face of the wars that the United States has been fighting, wars in which prisoners have been tortured and murdered and in which the slaughter of civilians has been covered up.

The Pentagon spends a vast amount of money every year on public relations, portraying contemporary warfare as heroic, noble and virtuous. WikiLeaks committed an affront to this image-making by revealing the grimy and grisly reality behind the sanitized version that normally reaches the U.S. public.

For exposing that truth, WikiLeaks is now a target for revenge.

But imagine yourself one of the Iraqis or Afghans subjected to torture and other abuses. Or the widow or orphan of one of those murdered. Then, imagine that a foreign occupier was claiming the right to keep these dirty secrets from the world.

What you would want is truth and justice, not perception management.

Organizations such as WikiLeaks provide at the very least the hope of that – and that is a hope frightening to the likes of Sen. Ensign.

D. H. Kerby is a journalist and a poet who writes about civil liberties and national security. His most recent book,A Year in Paris and an Ordeal in Bangkok: Collected Poems and Political Essays, is available from and he can be reached at [email protected]

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