Note: cross-posted on The Huffington Post.
At first blush, WikiLeaks’ disclosure to newspapers of hundreds of thousands of State Department cables seems like a win for transparency and accountability in government. After all, these documents offer a never before seen window into U.S. diplomacy. But upon closer inspection, WikiLeaks’ document dump illustrates the perils of going outside the system, and is likely to result in less transparency in the long run.
For those of us in the transparency business, the Freedom of Information Act (FOIA) offers a useful tool to pierce government secrecy. Designed to let the public know what its government is up to, the FOIA mandates disclosure upon request, subject to nine limited exemptions. Those exemptions represent a congressional balancing of governmental interests, such as national security and investigative needs, against the public’s need to know. For agencies that stray off course, the FOIA provides judicial review, allowing courts to view requested documents in camera to determine if they were properly withheld. While the FOIA is far from perfect, it provides the public with a useful tool for scrutinizing government actions and policies balanced by oversight and procedural safeguards.
Some may attempt to justify the flaws in WikiLeaks’ disclosure process by pointing out the usefulness of the leaked cables. While in the short run we may have gained valuable insight into how the U.S. conducts foreign diplomacy, in the long run WikiLeaks’ reckless actions likely will endanger transparency. The government has long relied on a “mosaic theory” to justify withholding unclassified information from FOIA requesters. According to this theory, bits of unclassified and seemingly innocuous information may threaten national security when they are pieced together in a broad compilation or “mosaic.” The next time the government attempts to invoke this theory to justify withholding a document under the FOIA, it will point to the actions of WikiLeaks as Exhibit A for why the government must maintain the secrecy of non-classified documents. Courts will be more likely to agree that the FOIA’s exemptions should be stretched to accommodate the government’s concerns. Post-WikiLeaks, the mosaic theory may have no discernable limits.
We can also anticipate legislation equating the actions of WikiLeaks with those of journalists, subjecting both to greater risk of criminal prosecution. However irresponsibly WikiLeaks has acted, the newspapers that published portions of the leaked cables appear to have proceeded with far greater caution. And, unlike WikiLeaks founder Julian Assange, the newspapers were not motivated by a desire to harm U.S. interests. Nevertheless, in the emotional aftermath of such an enormous leak, any legislative backlash against WikiLeaks may also sweep in journalists, failing to distinguish WikiLeaks and similar entities from other media.
Finally, contrary to some suggestions, WikiLeaks is not a whistleblower. Decades ago a whistleblower by the name of Daniel Elsberg, motivated by a desire to inform the public of illegal governmental misconduct, leaked to the New York Times and Congress a copy of the Pentagon Papers. The newspaper published the papers after discussions with the government to aid public debate on issues of great national importance. WikiLeaks, by contrast, seeks to advance an agenda of self-aggrandizement at the expense of U.S. interests, with reckless disregard for the consequences of its actions. Furthermore, the State Department cables are hardly the Pentagon Papers, but instead a vast collection of documents that, at most, reveal some embarrassing moments in our foreign diplomacy. Steven Aftergood, who has campaigned tirelessly against government secrecy, has it right: “WikiLeaks must be counted among the enemies of open society because it does not respect the rule of law.”
Note: This article was updated at 9:53 AM EST, 12/15/10