Banamex v. Narco News Precedent Protects WikiLeaks, Too
By Al Giordano
The current media, political and prosecutorial uproar over WikiLeaks’ 250,000-document dump of leaked US State Department cables largely misses the big story altogether.
The story isn’t WikiLeaks per se, nor its founder Julian Assange, nor even the information made public from those documents, interesting and newsworthy though much of it is.
The story – one that defines the times we live in - has been going on for a while now: State power (and that includes private-sector “states” such as corporations and commercial media organizations) can no longer hide behind commercial (and State-owned) media to consolidate and centralize power when citizens deploy decentralized, small scale, and even temporary media resistances outside of those institutions in these ways that make big media irrelevant.
US Secretary of State Hillary Clinton can shout all she wants about the WikiLeaks revelations being somehow “an attack on America.” The New York Times can betray its own Pentagon Papers heritage and former street cred when its columnists like David Brooks mutter inanities like “I don’t think we should have access to the cables.” Amazon can banish WikiLeaks from its servers. INTERPOL can hunt down Assange, deport him to Sweden, which can then extradite him for prosecution in the US. The Justice Department can lock him - or his sources - up in Guantanamo or SuperMax and none of it will stop the institutional bleeding. Behold: Big media’s tourniquet around State and corporate power has shredded into tiny pieces of torn and bloody gauze.
An old order is coming unglued before our very eyes. WikiLeaks is more a symptom than a cause of this gigantic shift away from a big media controlled world of public opinion. It is the latest chapter among many that came before it and many more to come next. And it can be understood by studying a simple law of nature: Life finds a way.
In the 1993 motion picture Jurassic Park (based on the 1990 Michael Crichton novel), that was a phrase repeated over and over again by a nerdy scientist type, played in the movie by Jeff Goldblum: “Life finds a way.” Now, here is a related phrase that we splice upon that credo: “Information is life.” Oh, isn’t that catchy? Aside from that it will probably be stolen by Apple or Microsoft as its next ad campaign slogan, it also happens to be true. Indeed, information behaves very much like life itself. It reproduces, it mutates, it evolves, it can be hunted down, captured, locked up, and even be killed but eventually it always comes back to life anew, just like other forms of life. Understanding that basic truth of our era gives you a front row seat to how the WikiLeaks story – and the rest of the history of our lifetimes - is going to play out.
In that context, let me please rattle off two main observations provoked by the WikiLeaks chapter in this longer saga.
1. If US officials prosecute WikiLeaks under the US Espionage Act, it will result in a “not guilty” verdict.
At today’s US State Department press briefing, official blowhard Philip J. Crowley, asked about the WikiLeaks document dump, growled, “a crime happened under U.S. law and we are going to hold those responsible fully accountable.” Pressed by reporters, he backpedaled to talk mainly about the US employee or employees who allegedly leaked the documents to WikiLeaks. But the tone, like that from other government officials, was meant to intimidate and suggest that “ongoing investigations” could cast a wider net on the messengers, too.
US Attorney General Eric Holder rattled similar sabers this week when he said: "To the extent that we can find anybody who was involved in the breaking of American law, and who has put at risk the assets and the people that I have described, they will be held responsible. They will be held accountable."
A Wednesday National Public Radio story looked at what US law actually says regarding a possible prosecution of WikiLeaks members:
Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam-dunk.
"The biggest taboo that has been out there, sort of the dirty little secret in the Espionage Act for a long time, has been whether it would ever be used to prosecute somebody in the media, as opposed to the government employee leaking the information,” Lowell said.
The dilemma, Lowell said, is whether WikiLeaks is a member of the media that warrants special free speech protections, or more like a rogue operation dedicated to hurting the U.S.
"What I worry about and what many worry about is that WikiLeaks makes it easy for the law enforcement community to apply this law for the first time, in a precedent-setting way, that can be used against other people in the media," Lowell said.
In fact, the question of whether an Internet site that publishes information on “matters of public concern” enjoys the same First Amendment protections as the New York Times under the law was settled nine years ago this week, on December 5, 2001. How do we know that? It happened when the New York Supreme Court ruled in our favor in the case of Banco Nacional de Mexico v. Mario Menendez, Al Giordano and Narco News. The court ordered:
"Narco News, its website, and the writers who post information, are entitled to all the First Amendment protections accorded a newspaper-magazine or journalist... Furthermore, the nature of the articles printed on the website and Mr. Giordano's statements at Columbia University constitute matters of public concern because the information disseminated relates to the drug trade and its affect on people living in this hemisphere..."
While I’ve never reached the heights of fame-or-infamy that WikiLeaks’ Julian Assange has ascended to this week – a candidate for both Time’s Man of the Year and for a prison cell in Sweden or the US or elsewhere – the experience of that court adventure was illuminating on the current topic. Banamex v. Narco News settled, once and for all, that Internet journalists are indeed journalists in the eyes of the law. It set the legal precedent upon which WikiLeaks now stands. The government witchhunt to intimidate WikiLeaks and others like it might even be able to ramp up the hysteria enough to get a lower court to convict the web site or its personnel, but there is no way a conviction survives on appeals.
If WikiLeaks is guilty for having published information leaked by US employees, then we’re guilty too, for having used its documents last week to report Bill Conroy’s story, State Department "Secret Cable" Lays Out U.S. Intelligence-Gathering Agenda in Paraguay, and Erin Rosa’s story, Memo Reveals US State Department Knew Honduras Coup Was Illegal, Did Not Follow Own Advice.
And not only are we guilty, but so is the Spanish daily El Pais, the German daily Der Spiegel, the French daily Le Monde, the British daily Guardian and the US daily New York Times, as well as every other of thousands of news organizations in possession of copies of the leaked documents and that have published and quoted from them. And although some politicians like US Senator John McCain want to take the NY Times to task for having done so, that’s just not going to happen: State power isn’t going to turn against its favorite surviving gatekeeper! And if you can’t prosecute the Times, you can’t win a prosecution vs. WikiLeaks, period.
The officials of State power are angrier than a five percent tip. And they’re not angry because, say, WikiLeaks lied about them. To the contrary, they’re hopping mad because everything in those documents presents an absolutely truthful account of what US officials wrote, and what they reported that officials from other governments said to them and did for them. WikiLeaks put no spin upon them at all. It just laid them out, naked, and hung many of those officials – their career paths, their carefully cultivated reputations – on the petard of their own words. Hey, dudes! Welcome to the NFL and wear a cup. You’re public officials. Your employer – the public – has a legitimate stake in knowing what you’re doing on its dime.
That said, could WikiLeaks and its celebrated founder Assange have done a better job at dealing with this info gold mine that fell on their laps? I don’t know. All I can tell you is how, based on our Banamex case history and other experiences, we would have handled it differently…
2. How we would have done this differently than WikiLeaks did it.
From public relations stunts to court case discovery proceedings, there is a rule of thumb as old as PR itself: If you want to confuse people, or distract them from something you did, give them too much information.
And if you want them to focus on one thing, give them that one thing and nothing else.
Thus, every Friday afternoon, government and corporate press secretaries do “negative information dumps.” That’s when they announce resignations, or disclose scandals, or unfavorable economic reports, usually in the context of lots of competing information being dumped into public view at the same time so that the undesirable story gets drowned in the ocean of data and largely forgotten by Monday morning’s news cycle.
By releasing all 250,000 documents at once, WikiLeaks deprived every single one of those documents of the solitary importance that many of them could and should have had if released on its own, with well reported stories explaining the document’s full context. That is indeed how WikiLeaks first came to the attention of many: when it released a single leaked video from a US military helicopter in Iraq, documenting the assassination by US forces of a journalist. That story had legs, because it was given the space to stand on its own two feet.
Had a treasure trove of documents like this one landed instead on our laps at Narco News, we would do what we’ve always done (and in fact did with two of those documents this week): make them available one at a time, day after day, with reported stories of authentic journalism to bring these “matters of public interest” their full and deserved importance. Then, instead of everyone reading and chattering about whether Muammar al-Gaddafi receives Botox injections or whether someone called Nicolas Sarkozy a pompous ass (and whether he likes being called a pompous ass; we suspect he does!) we might all be talking about something real, like this gem from the WikiLeaks documents, that Slate’s Jack Shafer chose to underline, which reveals why Secretary Clinton responded with over-the-top rhetoric about the WikiLeaks document dump being supposedly an attack on Mom, baseball and apple pie:
How embarrassing are the WikiLeaks leaks? A secret cable from April 2009 that went out under (Secretary of State) Clinton's name instructed State Department officials to collect the "biometric data," including "fingerprints, facial images, DNA, and iris scans," of African leaders. Another secret cable directed American diplomats posted around the world, including the United Nations, to obtain passwords, personal encryption keys, credit card numbers, frequent flyer account numbers, and other data connected to diplomats. As the Guardian puts it, the cables "reveal how the US uses its embassies as part of a global espionage network."
Additionally, Clinton's State Department specifically targeted United Nations officials and diplomats posted to the United Nations. Among the targeted were Secretary-General Ban Ki-moon and permanent security-council representatives from China, Russia, France, and the United Kingdom, as this secret cable from July 2009 lays out. The State Department also sought biometric information on North Korean diplomats, security-council permanent representatives, "key UN officials," and other diplomats at the United Nations.
Whoa! Say what? The US Secretary of State violated the treaties the United States signed to host the United Nations in New York? Had WikiLeaks led with that story all its own, that’s what everybody would be talking about all week long. And instead of Julian Assange’s call for Clinton to resign, it would have come from a thousand surrogates, instead of becoming another free-floating piece of data in the “let’s make Assange look crazy and dangerous” lobby’s arsenal.
As I wrote last week for OpenDemocracy, in an essay titled, Authentic Journalism: Weapon of the People:
Citizen journalism, in some corners, however, has shown it can take from big media what they claim to do and do it better: Go out there and report stories, interview real people, make sure their voices are heard accurately and without distortion, investigate and produce documents and evidence of official wrongdoing (the staggering public support and donations to Wiki-Leaks, for example, indicate a significant hunger and thirst for this kind of reporting). In sum, the solution is no more complicated than embarking on a humble return to the basics of reporting a news story: the proverbial “who, what, when, where, why and how” of what happens each day in human events.
I can certainly understand how it came to be that WikiLeaks didn’t use our approach instead. We’re only in the position to do this after ten years of publishing, of going through legal hell and back again, and after three sessions of the School of Authentic Journalism which give us the necessary small army of skilled reporters of conscience we could call up on waivers to sift through 250,000 documents and State Department cables and be able to devise a strategy that could have been much more devastating for State power, with a daily water torture of one solidly reported story after another coming out, day after day, and providing the necessary public attention and focus on each of the many important ones.
Instead, WikiLeaks chose to “partner up” with the same big five daily newspapers so responsible for the protection of State power in their respective countries (and, yes, all of them will squawk that to the contrary, they’re at odds with governments, but you and I both know how untrue that is). And the overall result is mass confusion that buries all the stories in these documents under a gigantic mound of distraction.
Sure, WikiLeaks has increased the reach of its own brand name. Was that the primary goal? Again, I don't know. But it has also hastened the day by which other, newer ventures, will replace it in the work of making secret documents public, because, fair or not, it is not at all clear that WikiLeaks itself can withstand the intense scrutiny, reaction and repression now upon it. We’re sympathetic to WikiLeaks. We oppose those attacking it. We will defend it from spurious prosecution (our attorneys, who essentially wrote the law that protects WikiLeaks, are also on standby). We hope it can withstand the firestorm. But we’re reality-based and have seen radical celebrity stories turn quickly to flashes in the pan before. This game ain’t tiddlywinks. There are real consequences at play. And it's tough for metal to go through fire if it wasn't forged in fire, first.
What will remain, though, and it’s a wonderful thing, is that the whole world now knows that anyone can make unseen documents shoot ‘round the world in the course of a day. A thousand whistleblowers, in every land, are pondering the new landscape, with itchy trigger fingers on the send button. And Washington, methinks, protests too much, because the next waves will surely include leaks of documents from other countries, too, probably including from many of its adversaries. And then their Secretaries of State will be likewise screaming bloody murder and issuing stern threats to the media that expose them. The tactic of exposing hidden information is not wed to any ideology or “ism.” It is merely a tool that can be made to work for all sides in any conflict. Don’t be surprised if the next big data dump comes from leaked documents from Iran, or North Korea, Russia or any number of State powers at odds with the United States. This pox will soon be upon all houses of State and upon private corporations, too. (I’ve long said: The next Daniel Ellsberg will have to come from inside the New York Times rather than leaking to it.) And that, too, is as it should be: Information is Life! It finds a way!
I’ll give Jack Shafer the last word here (and await your own in the comments section):
“Information conduits like Julian Assange shock us out of that complacency. Oh, sure, he's a pompous egomaniac sporting a series of bad haircuts and grandiose tendencies. And he often acts without completely thinking through every repercussion of his actions. But if you want to dismiss him just because he's a seething jerk, there are about 2,000 journalists I'd like you to meet.”
Members of the official Fourth Estate, meet your newest member. He’s more like you than you think, and the New York Supreme Court has already issued the precedent by which he enjoys the same legal protections as you do. Your fate is now tied in with his. So cut with the crybaby act and get back to work. The days are counted in which your institutions will be able to pay you to do it anyway, so enjoy it while you can, and if you have documents to leak from inside your media organization, or any other institution, mi email es tu email: firstname.lastname@example.org.