Human Rights lawyer Geoffrey Robertson QC was this week awarded the New York Bar Association’s annual award for distinction in law and international affairs. In his acceptance speech he proposed new legal principles for whistleblowers:
The First Amendment to the US Constitution is based on Madison’s principle that government information should be the people’s information too. I currently have a client, in Mr Julian Assange, who takes Madison’s principle to what some politicians and diplomats see as extremes. WikiLeaks has certainly made people around the world better informed about what their rulers do not tell them, but to tell the US Embassy instead. This is not the place to discuss my controversial client, other than to express the hope that he remains alive to give me instructions. Joe Biden and Mick Huckabee want him treated like a terrorist, Rush Limbaugh yearns for him “to die from lead poisoning from a bullet in the brain”, while Sarah Palin, as ever shooting from the lip, says “he should be hunted down like Bin Laden” (I suppose that would give him nine more years of freedom).
These shrill, exaggerated voices calling for the messenger to be killed come unhappily from the land of the First Amendment. WikiLeaks, whatever its failings, has at least enlightened the people of many countries around the world, from Tunisia to Indonesia, who now realise what their governments have been up to and how truly corrupt those governments are. It might be thought that the most astonishing secret revealed by WikiLeaks is that US diplomacy is both principled and pragmatic and that most foreign leaders place upon the United States the heavy burden of world leadership, most urgently in dealing with Iran and the prospect of a nuclear bomb in the hands of mullahs without mercy.
It can only diminish US leadership and dim the beacon of the First Amendment, to raise that old blunderbuss the Espionage Act of 1917, death penalty and all, and aim it beyond the jurisdiction at a publisher who is the citizen of a friendly country. Nor can it be helpful to America’s reputation for respecting due process to amend it retrospectively, as Senator Lieberman has suggested. What the WikiLeaks phenomenon calls for, surely, is a cool-headed appraisal not only of US government classification policy — these cables were apparently accessibly to over 2 million public servants, including 22 year olds — but to developing international media law principles for dealing with worldwide publishers of national security information.
A sensible rule might contain these principles:
1. Citizens everywhere have a democratic right to know what a government does in their name;
2. Governments and their public servants bear sole responsibility for protecting properly classified information;
3. Outsiders who receive or communicate confidential government information should not be prosecuted unless they have obtained it by fraud or bribery or duress;
4. National security exceptions should be precisely defined, should protect the identity of sources who are at risk of reprisals but should not stop whistleblowers from revealing human rights violations – the public has, at the very least, a right to know when a war fought in its name is killing innocent civilians through illegal targeting decisions.
I do not advance these principles as definitive but as the basis for a debate that the US Justice Department should be prepared to engage in with publishers – the New York Times, Der Spiegel and The Guardian and Mr Assange included. It might end in an agreement that could be the basis for injunctive action in national courts, but not for criminal prosecution of publishers. That, surely, is wholly antipathetic to the spirit of the First Amendment.
