So the matter of Wikileaks is less about Wikileaks itself and more about the survival of a free press in America. If a nation were not legally permitted to publish leaked information it received, then the New York Times would not have been permitted to publish or report on the Pentagon Papers or, more recently, on the Bush administration's illegal, mass, warrantless spying program. Indeed, insofar as the Times has also printed descriptions of the leaked cables attained by Wikileaks, it too, no less than Wikileaks would be guilty of a crime.
However, there is a fundamental difference between hacking into a computer and stealing government documents, on the one hand, and publishing them, on the other hand. If the publisher aids the hacker in securing the documents for purposes of publishing them, then the publisher may be complicit in a crime. On the other hand, if the publisher simply publishes the documents, then no crime has been committed because there is a First Amendment that protects this activity under freedom of the press.
Indeed, the press has an obligation to exercise discretion in what it publishes. But this is largely a matter of professional ethics , not criminal law. Thus when Robert Novak wrote in his column in the Washington Post that "Valerie Plame... is an agency operative on weapons of mass destruction," he arguably exercised indiscretion by exposing the identity of a CIA agent, thereby jeopardizing her operation and endangering the lives of those working with her. But Novak was not prosecuted for a crime; nor should he have been, even though he may have exercised poor judgment. The basis of such immunity from prosecution is the need of a Fourth Estate whose purpose it is to keep watch on government and to inform the people when there is a breach of trust. In a democracy, the government is a trustee answerable to the people; and the press is the people's watchdog.
With all its campaign promises about maintaining transparency, the Obama administration appears to have hypocritically morphed into the wily and clandestine antics of the Bush administration. In the least, instead of openly declaring the freedom and necessity of the press as our Fourth Estate, it appears to have perceived the press (in the form of Wikileaks) to be its enemy to be shut down.
Today the mainstream corporate media is largely engaged in quid pro quo with government. These giant corporations cooperate with government because they seek military contracts, tax breaks, relaxed antitrust laws, and other incentives. So it is largely left to independent media like Wikileaks to fill the void. In this sense, such independent online news sources are the most vital and reliable part of our Fourth Estate. To the extent that they are free of conflict of interest with government, they can most realistically be counted on to fulfill the job of people's watchdog, standing guard against government corruption and vigilantly keeping the people informed.
Accordingly, we, the people, should draw a firm line in the sand. The government needs to know that the people will not tolerate abridgements of its right to a free press.
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