WikiLeaks and Press Freedom: Is Treason a Civic Duty?

WikiLeaks is as much an intermediary for the public sphere as every newspaper and every website. For Berlin constitutional law expert Dieter Grimm, it is clear that the whistleblower website enjoys "the protections for freedom of the press under Germany's Basic Law." As a judge on the German Constitutional Court in Karlsruhe, Grimm played a very important role in shaping the current interpretation of freedom of opinion and freedom of the press in Germany. The Constitutional Court itself has consistently emphasized that the task of disseminating information in an unimpeded manner is "clearly essential" to the functioning of a democracy.

There is no good or bad public sphere, just as there is no such thing as a bit of a public sphere. According to the German Constitutional Court, it is only the full- fledged ability of all citizens to have access to all information, at least in principle, which makes the formation of public opinion possible. And it is the unobstructed formation of public opinion that makes it possible to view the outcome of elections as being representative of the will of the people.

Is the state permitted to keep secrets from its citizens? Are citizens permitted to disclose such secrets?

The answer to both questions is very simple: Yes.

State Has No Private Sphere

Naturally the government is permitted to have secrets. It is part of the prudent behavior of every civil servant to prepare decisions in confidence, so as to prevent unauthorized individuals from thwarting the desired outcome in advance. This is no less applicable to the planning of foreign ministers' conferences than to plans to apprehend terrorists.

That's why it is also part of the responsibility of all politicians, civil servants and judges to keep an eye on sensitive information, as the case arises. This is all the more important because the government cannot depend on being able to operate in legally protected darkness. The state's privacy, as such, is not legally protected, and the state, unlike its citizens, has no private sphere. The rights of citizens deserve protection, but the government's internal affairs do not.

Only one politician in Berlin, Christian Ahrendt, the legal policy spokesman for the liberal Free Democratic Party's parliamentary group, had the courage to put the unpopular truth into words: "If government agencies don't keep a close eye on their data, they can't hold the press responsible after the event."

This is the answer to the second question: Just as it is legitimate for the state to keep information secret, it is legitimate for the press to publish information it has succeeded in obtaining from the belly of the state.

The Quality of a Democracy

This is difficult to comprehend, even for interior ministers, which is why Germany needed, once again, a decision from the Constitutional Court explaining the difference between breach of secrecy and disclosure. When the editorial offices of the magazine Cicero were searched in 2005, with the approval of then Interior Minister Otto Schily, because the magazine had reported on a confidential Federal Criminal Police Office (BKA) dossier, the investigators used a complicated argument to justify their charge against the editor responsible for the story. They argued that, although there is no specific law banning the publication of confidential official documents, it is a punishable offence for the BKA agents responsible for taking care of such documents to leak them. This meant that the journalist in question was an "accessory" to a punishable offence, if only by accepting the documents. And being an accessory to an offence is also an offence.

The Constitutional Court rejected this argument, noting once again the "absolutely essential importance" of press freedom for democracy. The press is allowed to print what it has obtained. With the very narrow exceptions in the realm of treason, this rule must apply in the press's handling of government secrets.

The case of Valerie Plame, the wife of an American diplomat who was exposed as a CIA agent by the syndicated columnist Robert Novak, shows that it is also firmly applied in the United States. It is a crime in both the United States and Germany to expose an agent of one's own government. But in the Plame case, reporters were only called to testify as witnesses. It was the government source, and not the reporters themselves, that was being prosecuted. Nevertheless, a journalist, Judith Miller, was arrested and spent three months in jail for refusing to reveal her sources. Even this sanction would be unthinkable in Germany, where journalists have the right to refuse to give evidence. Under the Basic Law, journalists, in the interest of the free disclosure of secrets, must even have the right to protect government sources.

In Germany, it was former Constitutional Court Judge Grimm who declared that a free press serves a constitutional purpose. This is not meant in a restrictive way, but entirely within the meaning of the framers of the US Constitution. If the state derives its democratic authority from citizens having comprehensive information, then providing information becomes a civic duty. And breach of secrecy becomes a mark of the quality of a democracy.