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The legality of WikiLeaks

Is a website like WikiLeaks legal? The site famous for publishing leaked government information released tens of thousands of documents this week detailing just how bad things have gotten in the war in Afghanistan.

The documents gave details on unreported civilian deaths as well as covert operations of key leaders in the Taliban. It also discusses possible interference from Pakistani intelligence agencies and the growing difficulties of occupation within Afghanistan. Those that run the site allege that the documents also include information on possible war crimes violations as well.

The 91,000+ documents are mostly from the Bush era, between the years 2004 and 2009. As one military adviser pointed out, they don’t include the current operations on the ground in Afghanistan, including Barack Obama’s plans for withdrawal from the region (following a buildup of troops).

That same advisor, however, also asserted that the release of documents compromises the security of military personnel on the ground.

White House national security advisor Gen Jim Jones said the release “put the lives of Americans and our partners at risk.”

The government has a right to keep certain information secretive, information that, if released, could compromise the mission of our men and women fighting overseas. That said, other information should rightfully be in the hands of the American people themselves, especially if policy is being shaped around what many may consider a lie or a manipulation of facts on the ground. The war itself is waning in popularity, and with the release of these documents that sentiment is not likely to change anytime soon.

The only time that information should rightfully be kept from the public’s eyes is when it’s in the best interest of the public to keep that information hidden, or when the release of that information may cause someone else significant harm. Likewise, a person cannot defend themselves by citing free speech if their speech causes a direct impact on a person’s livelihood. A person’s free speech rights don’t supersede the rights of others to be free from direct harm – I can’t erroneously and purposely yell “FIRE!” in a crowded theater and expect no consequences when the mob tramples upon someone else, injuring or worse yet killing them. When I use one of my rights in a way that causes harm to others, it ceases to be a protected right.

But does the WikiLeaks release constitute such a threat? Information from the past few years being released won’t do much to hurt anyone, save for the reputation of the former president. And it’s not as if the people in Afghanistan don’t already know that civilians have been killed in this war, and to what extent.

A site like WikiLeaks, then, should continue to function. At most, the U.S. government could prosecute whoever leaked the information to begin with, but even that seems like a violation of free speech rights. If you disagree, consider the rights a whistleblower should have at a private company. That person would likely get fired; but they wouldn’t get prosecuted. Perhaps the same ought to be true of the person who leaked this information – so long as the information doesn’t contain critical plans that could endanger our fighting men and women.

A leak like the outing of a CIA agent is one that I believe is a prosecutable offense – it places men and women who are in delicate situations in harms way. But a leak like the one we’ve seen this week, thus far, is not producing much harm.

Until WikiLeaks compromises real security of our nation and/or our troops, or until the information they leak causes or potentially causes direct harm to another individual, the site should continue to function.


  • paul 5 years ago

    You're incorrect about the legal situation around a private company whistleblower. If I sign a document that says I will keep my company's confidential information secret and I turn around and publish that... I'm liable and can/should be prosecuted. I would have broken the contract with my company and am liable. Period. That's not saying that there aren't times when it's a morally superior position to blow the whistle. If I knew of a situation that was dangerous and putting employees at risk for death or injury (AND there was no action on behalf of management) it would be the right thing to do. Lawyers be damned.

    I think wikileaks should still exist, but they need to consider that by releasing secret documents, they are potentially putting the world into an ever more dangerous state. If I sent them plans for a nuclear weapon or a dirty bomb, would they publish it for "freedom of speech?" I fear they would and that makes them naive idiots in my book.

  • pacelegal 4 years ago

    I am not taking sides as I think we need strong Whistleblower laws and the US is currently fast tracking those laws for military and intelligence personnel.

    However you need to draw the distinction between IP and trade secrets versus information that could endanger someone. Almost all privacy legislation, contracts and other legal documentation would have an exemption if not etched in contract then at common law for these situations.

    However in some countries there is official secret information that binds public servants from releasing such information that comes into their possession which reveals wrongdoing.

  • Ivica 4 years ago

    Who decides if WikiLeaks compromises security of the nation or troops?

  • Anonymous 4 years ago

    Government decides. It is their business because it is assumed that the government knows best what should be kept secret from the public. It is regulated by an Executive Order on classified national security information, to be kept secret for national defence or foreign policy) on classified national security information, as stated in Freedom of Information Act. Obama's Executive Order 13526 and Bush's 13292.

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