Don’t Underestimate the Difficulty of Stopping WikiLeaks

A version of this column was first published November 28, 2010 at Washington Square News, as “The government can’t and shouldn’t stop WikiLeaks”.

Yesterday The New York Times, along with Der Spiegel and The Guardian, published the latest trove of U.S. government documents obtained by WikiLeaks. The organization’s previous work includes, but is certainly not limited to, separate releases of millions of classified documents on the wars in Iraq and Afghanistan. Yesterday’s leak consisted of over 250,000 diplomatic “cables” — secure communications between the State Department and American embassies around the world — most sent within the last three years.

It would be insultingly simplistic to say that the organization’s work, especially its recent leaks, has been controversial — some see its work as essential for responsible journalism, others as irresponsibly playing with the lives of American soldiers.

In May, WikiLeaks topped the New York Daily News’ list of the “5 pioneering Web sites that could totally change the news.” Just four months later, Washington Post columnist Mark Thiessen publicly pondered the possibility of using “military assets to bring [WikiLeaks founder Julian] Assange to justice and put his criminal syndicate out of business.” “Military assets” is the key phrase there.

I can sympathize with those who think WikiLeaks poses a real threat to the security of our troops and to the accomplishment of our broad diplomatic goals. Some material is classified for a reason. But if we’re interested in a practical conversation, this is really beside the point: There isn’t much the government can do to stop WikiLeaks.

The government’s previous attempts to restrain the publication of government documents (most famously in the Pentagon Papers case) haven’t ended successfully. And that case involved The New York Times which is owned and operated inside the U.S. WikiLeaks’ website is hosted in part on servers operated by the Swedish Pirate Party, an actual political party advocating reform of copyrights. Its remaining servers are scattered across the planet. It’s far from clear that an injunction against publishing classified material issued in the U.S. would have any force abroad.

Well, the government could block access to WikiLeaks for those in the U.S. much like China blocks access to YouTube, right? Setting aside any constitutional issues (and there are quite a few), this would likely be ineffective. The Chinese government uses its extensive censorship scheme to block access to any site with “youtube” in the URL. Yet, WikiLeaks operates many mirror sites with differing names, and they’re always changing. There isn’t much reason to think that the U.S. would be more effective at censorship.

Despite our broad First Amendment protections, leaking classified information is still a crime. There is always the possibility that Assange and his associates could be prosecuted in the U.S., a possibility that Justice Department attorneys were looking into before WikiLeaks’ latest release. But the Congressional Research Service, a division of the U.S. government, found that “leaks of classified information to the press have only rarely been punished as crimes,” and prosecution of a publisher (as opposed to the government employee who first leaked the information) would be unprecedented.

And — not to belabor the point — the complexity presented by Assange’s being a foreign citizen operating outside the U.S. is daunting. Assange or his associates would have to be extradited back to the U.S. to stand trial, which first means finding a nation willing to give him to us. It seems unlikely that if an extradition agreement were reached with another nation, Assange would ever again step foot in that nation.

Mark Thiessen’s suggestion of deploying “military assets” against Assange is just bizarre. Civilized nations don’t assassinate journalists, period. Set aside any debate about whether what WikiLeaks does is right or wrong, legal or illegal. We can’t do anything about it.

And that’s probably a good thing. Even an autocratic state like China can’t control WikiLeaks’ web presence. I’d be seriously worried if our government had more power over what can be read and published than China’s. We should stop wasting time thinking of putting an end to WikiLeaks and learn to live in a world where the Internet is finally making government more transparent.