David Allen Green, legal correspondent for the New Statesman out of the UK, has spent the last few days calling attention to a leaked WikiLeaks confidentiality or non-disclosure agreement (NDA), which he revealed in a blog post on May 11. Green has posted a second post on the agreement on his blog, Jack of Kent, and will be posting a summary to the New Statesman website on May 16, which last time I checked, he intends to glibly title, "NDAs for Dummies."
Green, who is the blogger who was the first to draw attention to the agreement, called it a "draconian and extraordinary legal gag that WikiLeaks imposes on its own staff" and, in particular, focused on Clause 5 of the agreement that "imposes a penalty of ' £12,000,000 twelve million pounds sterling' on anyone who breaches this legal gag."
In his follow-up post, which cites the analysis I wrote, he groups me with others who "sought to explain the document away: to normalize it and to contend that it is somehow unexceptional." That is true. That is what I did.
It may be well that for WikiLeaks partisans (like "the Birthers" in the United States), nothing - not even a disclosed document- will shift their adherence to their cause.
If so, that would present rather a paradox, as one claim for the WikiLeaks enterprise is that publishing original documents can undermine artificial and self-serving narratives.
So for WikiLeaks and its partisans, and for anyone else who is interested, what follows is a technical legal analysis of this extraordinary document.
This is the pejorative framing for Green's legal analysis: others and myself are so fervently supportive of WikiLeaks that we are blind to the contents of this agreement. In fact, we are so biased that we are like the racist faction of people in the United States, who fought to get President Barack Obama to produce his birth certificate to prove he was American--a campaign that made some recall the days when the US government required African-Americans to take literacy tests in order to vote.
What about Green's opinions on WikiLeaks? If one looks at each of his posts on WikiLeaks, it becomes apparent that Green is an iconoclast when it comes to WikiLeaks. He is a denouncer or skeptic, who only ever has something critical to say of WikiLeaks, and, while he will say something good about WikiLeaks here and there, he only does it to buffer the tartness of his posts on WikiLeaks.
Green has written at least eight posts that mention or cover WikiLeaks. He wrote a few on the Julian Assange sex case and has put forth a legal analysis on why Assange lost the extradition decision saying he lost because a valid "European Arrest warrant was issued and served for serious alleged offenses." He's written about what he calls the "bizarre legal world of WikiLeaks," scrutinizing a tweet sent out by WikiLeaks that read, "The Guardian book serialization contains malicious libels. We will be taking action." But, to understand Green's attitude toward WikiLeaks, the best post to read is what he wrote just as WikiLeaks began to release the US State Embassy Cables: "WikiLeaks and the liberal mind."
After writing, "the release by WikiLeaks of US government cables is a sheer triumph for transparency," Green at the end of his post concludes this transparency triumph may not be worth celebrating because WikiLeaks is a "powerful but undemocratic and unaccountable entity that shows a general disregard for both the rule of law and the practical need for certain communications and data to be confidential."
Green, who writes liberal and critical posts, uses liberal values (perhaps, values he shares) to critique WikiLeaks. He writes legitimacy is a liberal value and suggests WikiLeaks has no "democratic mandate" or "accountability" for its release of documents. He notes that legality is a liberal value, as if WikiLeaks transparency work is illegal. Finally, he adds privacy is a liberal value and assurances "of confidentiality can be crucial."
Oddly, Green doesn't detail what illegal acts WikiLeaks might have committed. He insinuates and fabricates this idea that what they do has an illicit component. WikiLeaks, to this author's knowledge, has broken no laws. They have published previously classified information that whistleblowers have submitted to them. Whistleblowers submit the information to them through a system that prevents WikiLeaks from knowing who leaked the information. Since they do not leak the material or solicit individuals for information to leak, it seems to me that it would be difficult to indict or convict members of WikiLeaks in a court of law.
I don't fully know the scale of the legal issues that WikiLeaks raises in the United Kingdom. I mostly know, from an American perspective, that, for example, what is disconcerting is the attempt to prosecute Assange and others that can be connected to WikiLeaks under the Espionage Act. I know how the investigation could lead to an increased chill of freedom of the press in America and I also know how WikiLeaks directly breaks secrecy barriers the US government has erected, which prevent US citizens from fully knowing the extent of its dealings with private corporations or what crimes it is committing in wars or at places like the Guantanamo Bay military prison.