Wikileaks didn’t just happen

July 29, 2010

OPINION – By PETER SCHEER–The New York Times’ front-page stories on the war in Afghanistan–based on a massive leak of classified US military cables and other documents–are not likely to change the course of the war. But they represent a sea change in the way journalists report on national security.

The records for the Times’ articles, which inevitably invite comparison to the “Pentagon Papers” of an earlier generation and an earlier war, were supplied to the Times not by a government source, but by wikileaks.org, a shadowy and stateless website specializing in publishing sensitive records leaked anonymously from the files of governments and corporations.

Why wikileaks?

If necessity is the mother of invention, the gestation for wikileaks began in Washington DC on June 17, 2005. That is the day the Supreme Court declined to hear appeals from court orders compelling journalists from Time Magazine and the New York Times to reveal the identity of a source–Lewis “Scooter” Libby, we later learned–whom the reporters had promised confidentiality.

The  Supreme Court’s inaction laid bare the vulnerability of American journalists to the coercive power of  federal judges who are determined to extract information for a grand jury or trial.  Most journalists can’t or won’t go to jail to protect a source. And those who would do so may find that their employer, typically a public corporation with an obligation to shareholders, doesn’t share their  commitment to civil disobedience.  Even without the intervention of courts, federal agencies conducting  national security investigations can gain access to reporters’ phone records, often without the reporters’ ever knowing about it.

Wikileaks, in short, is a response to journalists’ loss of control over their information.

Using technology both to erase leakers’ fingerprints and to place wikileaks and its files effectively beyond the reach of any one country’s judicial process, wikileaks offers a degree of anonymity and security that, while imperfect, exceeds the capability of US media companies.

These advantages explain the unusual provenance of the Afghanistan stories. Although the source could have leaked the classified materials to a Times reporter directly, the reporter would have insisted on communicating with the source. For the Times, knowing the identity of a source is important for assessing the authenticity of leaked information and to determine a source’s motives for leaking. From the perspective of the source for the “Afghanistan Papers,” however, communicating with the Times would create an undue risk of exposure. The source therefore chose to give the records to wikileaks; wikileaks gave them to the Times.

The upshot is that the Times ran its stories apparently without knowing the identity of its source. That may be a first for a major Times article on national security. It won’t be the last time this happens.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.