By Sarah Joseph

Gosh. This Wikileaks story is just running and running. And with thousands more cables to be released (only a small percentage of the quarter of a million in Wikileaks’ possession have been published so far), it isn’t going to leave the front pages soon. To add to the intrigue, there has been the side show of the arrest of the charismatic and mysterious head of Wikileaks, Australian citizen Julian Assange, in London, in connection with sexual assault allegations in Sweden.

The response of the US and Australian governments has been inconsistent, comprising both severe condemnation and belittling of the leaks. On the one hand, Wikileaks has been condemned for irresponsibly compromising national security. On the other, the cables have been dismissed as revealing little more than titillating but unimportant diplomatic gossip.  The former, as yet, does not appear to be true, as conceded by US Secretary of Defence Robert Gates (on an earlier leak of documents on the Afghanistan war) and Australian Attorney General Robert McClelland, while the latter is sometimes true. It is pretty gossipy to publish the fact that the Americans think Kevin Rudd is a control freak, and that Dimitri Medvedev is Robin to Vladimir Putin’s Batman.  But publishing gossip is not a crime, or else millions of magazines and tabloids around the world would go out of business.  And much more than gossip has been revealed, as detailed below.

Leaving aside Assange’s arrest and the Swedish allegations, on which I will not comment, a key human rights issue is clearly freedom of expression, recognized in Article 19 of the Universal Declaration on Human Rights (which is 62 today) and Article 19 of the International Covenant on Civil and Political Rights [ICCPR].  The international right includes the right to “receive” information, though there is little international case law on that aspect of Article 19 (though check this case and also this recent one from the European Court of Human Rights).  I will not therefore talk about the complex issue of the right of the public to know this information.  The flipside of freedom of information is the right of the person publishing the information to “impart” it.  Freedom of expression is not absolute.  Under Article 19(3) of the ICCPR, limits to the freedom may be imposed if “provided by law” and “necessary” to protect the rights or reputations of others, national security, public order, public health or morals.

Some of the leaks clearly disclose important information, the revelation of which is in the public interest, if not the interest of relevant governments. The Australian people have an interest in knowing that our government has grave misgivings about likely success in the Afghan war, especially while our soldiers are dying there.  The UK public has an interest in knowing that the US was assured that its interests would be protected during the public inquiry into British involvement in the Iraq war: given the centrality of US interests to that involvement one wonders how the two can be disentangled.  The Spanish public has an interest in knowing that its government was pressured to prevent investigations into torture and rendition by the US. Nigerians have an interesting in knowing how the drug company Pfizer tried to pressure its Attorney General not to bring charges against it regarding the testing of a drug on children, with allegedly fatal results.  Iraqis have an interest in  knowing the real estimates (rather than the official released ones) of civilian deaths linked to the Iraq war, as revealed in the earlier leak of the Iraq War logs.  The revelation of such information, at least by Wikileaks if not the original leaker, allegedly one Bradley Manning (discussed below), is likely to be protected under Article 19.

Some information could potentially raise international tensions, perhaps raising national security issues. While I doubt unflattering descriptions of international statespeople will matter very much, revelations of Chinese ambivalence towards North Korea, or Saudi pleas to the US to attack Iran, could. Then again, such information may already have been known by relevant governments officials.  And responses are unpredictable:  perhaps the revelations might prompt North Korea and Iran to pull their heads in. It is all too easy to assume that the revelation of government secrets will result in catastrophe. Governments “cry wolf” on that issue all of the time.  I doubt that publication of this information by Wikileaks, or its partner mainstream newspapers, falls within permitted limitations under Article 19(3).

Certainly, the revelation of information that endangers lives, such as the identities of informants who might be killed in reprisal, could be limited on the grounds that it breaches the rights of others (eg their right to life).  Though such allegations have been made, no specific example of a person being physically harmed (as opposed to severely embarrassed) due to the leaks has come to light.  That is not to say that it cannot happen in the future.

A key aspect of the limits to Article 19 rights is that they must be “provided by law”.  This is a crucial rule of law requirement – the limits to one’s rights must be circumscribed and clearly found in pre-existing law.  US and Australian authorities are reportedly strip-mining their statute books searching for a relevant law which Wikileaks has breached – hardly an edifying spectacle if one is concerned with personal liberties.  It is doubtful such a law exists, given the inability of the US authorities, after months of searching, to identify such a law.  Poor attempts are being made to shoehorn Assange’s activities into laws which were never anticipated to apply in his situation.  “Receipt of stolen goods” has been mooted as a possible charge.  In which case it would have to be established that Manning perpetrated theft, which would require proving that the data was property, and that Assange received a proprietary interest in that property.  Hard to do methinks.  Assange, in generating publication of copied material, has probably breached copyright and prompted breaches of copyright.  But certain characteristics have to apply before a criminal breach of copyright can lie:  such breaches normally arise in the context of depriving or reducing the ability of someone else to make money from copyright material – eg pirating a movie or somehow publishing without authority the mooted fourth Stieg Larsson book.  The information published by Wikileaks was secret and meant to remain secret:  no one was presumably intending to make money out of that information.  There is the possibility that Assange solicited classified information from Manning: at this stage that is simply speculation.  Perhaps Wikileaks, as a website clearly set up for the purpose of receiving leaks, regardless of how the information is gained or its classification status, is guilty of generally soliciting classified documents.  That could be a slippery slope, as mainstream news organizations have historically been happy to receive classified information, though they may be more circumspect in publishing it.

Attorney General Robert McClelland has reportedly stated that the obtaining and distributing of classified documents without authority is a crime.  Well, for a start they were US classified documents not Australian ones.  And that means the publication of many leaks by the media, unless obtained perhaps in a purely oral form, is a crime in Australia.  Which brings up another point:  while governments are frantically searching for crimes with which to charge Wikileaks, they seem to have no intention of charging the mainstream newspapers which have revealed the Wikileaks information, often before Wikileaks does so itself, such as the Guardian, Le Monde, New York Times, and Der Spiegel.  If a crime has been committed by Assange and Wikileaks, the same crime seems to have been committed by those outfits in many instances.

Crimes have been committed by Manning, assuming he was the leaker.  The unauthorised access of, downloading and distribution of massive amounts of classified material in a fairly indiscriminate way seems unlikely to fall within any relevant whistle-blowing exceptions.  Nevertheless, Manning is an individual with human rights, including the right of humane treatment in detention in Article 10 of the ICCPR.  He has reportedly been held in solitary confinement since his arrest in May, his access to friends and family is limited, and he is denied access to much of his correspondence.  These conditions do not seem justified or necessary, and therefore constitute breaches by the US of Manning’s human rights.

Some of the reaction to Wikileaks’ activities has been extraordinary, with some extremist commentators calling for Assange’s assassination, and the conferral of the death penalty on Manning.  Such outcries were not apparent when Wikileaks was leaking information about extrajudicial killings in Kenya (probably classified material involved there, Mr McClelland).  But now, Assange and Wikileaks have taken on the US and it isn’t happy.  And nor is its ally Australia.  But there does not seem to be a lot they can do about it, especially given the willing cooperation with Wikileaks of mainstream media big boys.  Attempts to shut down the Wikileaks site have prompted an explosion in mirror sites.  Attempts to cut off funds, with Mastercard, Visa, and Paypal refusing to receive donations for Wikileaks, are probably futile, as other avenues will be created.  And those organizations, along with Amazon, the Swedish government and Sarah Palin, have now been targeted by hackers in apparent retribution for their treatment of Assange and Wikileaks.  Whatever Assange’s motives, he has unleashed a truly extraordinary battle between the forces of governments and at least some major multinationals on the one hand (leaving aside those media corporations cooperating with Wikileaks) and anarchistic internet freedom fighters on the other.  It is not certain who is going to “win”, when this battle might ever be over, or who will end up winning hearts and minds.