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WikiLeaks and Press Freedom: Is Treason a Civic Duty?

A Commentary by

Part 2: Are Citizens Permitted to Disclose State Secrets?

A protester prepares a Julian Assange mask at a pro-WikiLeaks demonstration in Malaga, Spain, on Saturday. Zoom

A protester prepares a Julian Assange mask at a pro-WikiLeaks demonstration in Malaga, Spain, on Saturday.

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.

Translated from the German by Christopher Sultan

Discuss this issue with other readers!
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1. Resistance to change
Naturhuf 12/13/2010
This is even very prevalent on forums here in the States which are often heavily moderated. If you do not follow the forum's party line, no matter how respectful and considerate and helpful the posts are, you get kicked out. Free sharing of information does not seem to be desired much, because, oh my God, that could actually lead to change, even when it is positive change!
BTraven 12/15/2010
Zitat von NaturhufThis is even very prevalent on forums here in the States which are often heavily moderated. If you do not follow the forum's party line, no matter how respectful and considerate and helpful the posts are, you get kicked out. Free sharing of information does not seem to be desired much, because, oh my God, that could actually lead to change, even when it is positive change!
Perhaps the censoring has something to do with the exclusive contract the newspapers which were provided with the information allegedly signed with Wikileaks. According to some statements Der Spiegel should pay Wiki a large amount to money to be allowed to publish all the facts. The matter will be discussed in the “Presserat” (council which controls the newspapers). I could imagine that the papers which were not permitted to get first class information do not have any interest to give its readers a platform to discuss all the revelations.
3. Infamous scribblers of the past reborn
ka5s 12/16/2010
These leaks, while quite in violation of security, are very much in the original tradition of American revolutionary journalism. The book 'Infamous Scribblers'(by Eric Burns) writes about early US newspapers George Washington called 'infamous scribblers'. Having sparked a revolution against Britain, our newspapers were not about to shut up when it was won. It was not long until the US government created the 'Alien and Sedition Acts' to suppress them, and this has been repeated at times in US history. But we are an unruly lot and our freedoms are exercised as Europeans would never dare to try. Alles was nicht erlaubt ist, ist pflichtig! Many among us believe there is a duty to publish. But under the US Constitution, that is not treason, no matter how unwise or criminal it may be otherwise, which has yet to be determined.
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Reaction from the US Government
In a statement, the White House has condemned the publication of "private diplomatic discussions" with foreign governments by SPIEGEL and four other international media on Sunday. Click on the link below to read the statement in full.
White House Statement
We anticipate the release of what are claimed to be several hundred thousand classified State Department cables on Sunday night that detail private diplomatic discussions with foreign governments.

By its very nature, field reporting to Washington is candid and often incomplete information. It is not an expression of policy, nor does it always shape final policy decisions. Nevertheless, these cables could compromise private discussions with foreign governments and opposition leaders, and when the substance of private conversations is printed on the front pages of newspapers across the world, it can deeply impact not only US foreign policy interests, but those of our allies and friends around the world.

To be clear -- such disclosures put at risk our diplomats, intelligence professionals, and people around the world who come to the United States for assistance in promoting democracy and open government. These documents also may include named individuals who in many cases live and work under oppressive regimes and who are trying to create more open and free societies. President Obama supports responsible, accountable, and open government at home and around the world, but this reckless and dangerous action runs counter to that goal.

By releasing stolen and classified documents, Wikileaks has put at risk not only the cause of human rights but also the lives and work of these individuals. We condemn in the strongest terms the unauthorized disclosure of classified documents and sensitive national security information.

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