Do you want to know a secret? WikiLeaks and the constitution

Classified military documents obtained by WikiLeaks and provided to The New York Times and other news organizations gave the public this week new and detailed accounts of prisoners held at Guantanamo Bay. The assessments written by military intelligence officers evaluated the histories of detainees and gave the public a glimpse of the evidence against them.

Publication of the documents raised anew the controversy surrounding the WikiLeaks whistle-blower website. And it shined a spotlight on the dilemma raised by its distribution of classified material: What to do when government officials say that information valuable to informed public debate should be kept secret from the public in the interests of national security?

It’s a complex issue with free-speech dimensions that Geoffrey Stone, a law professor at the University of Chicago, explored in recent testimony to the House Judiciary Committee. Stone is a National Constitution Center Visiting Scholar and his testimony has been adapted as a monograph in the Center’s Constitutional Spotlight Series, “Do You Want to Know a Secret? WikiLeaks and the Constitution. “

In this excerpt, Stone explains how wartime situations have historically heightened the tension between national security and free speech:

A wartime environment inevitably intensifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. Throughout American history, our government has excessively restricted public discourse in the name of national security.

Over time, we have come to understand that these episodes from our past were grievous errors in judgment

In 1798, for example, on the eve of a threatened conflict with France, Congress enacted the Sedition Act of 1798, which effectively made it a crime for any person to criticize the president, the Congress or the government itself. During the Civil War, the government shut down “disloyal” newspapers and imprisoned critics of the president’s policies. During World War I, the government enacted the Espionage Act of 1917 and the Sedition Act of 1918, which made it unlawful for any person to criticize the war, the draft, the government, the president, the flag, the military, or the cause of the United States, with the consequence that free and open debate was almost completely stifled. And during the Cold War, as Americans were whipped up to frenzy of fear of the “Red Menace,” loyalty programs, political infiltration, blacklisting, legislative investigations, and criminal prosecutions of supposed Communist “subversives” and sympathizers swept the nation.

Over time, we have come to understand that these episodes from our past were grievous errors in judgment in which we allowed fear and anxiety to override our good judgment and our essential commitment to individual liberty and democratic self-governance. Over time, we have come to understand that, in order to maintain a robust system of democratic self-governance, our government cannot constitutionally be empowered to punish speakers, even in the name of “national security” without a compelling justification. And this is especially true in the realm of government secrets, for as James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.” As Madison warned, if citizens do not know what their own government is doing, then they are hardly in a position to question its judgments or to hold their elected representatives accountable. Government secrecy, although sometimes surely necessary, can also pose a direct threat to the very idea of self-governance.




  1. charlescieri says

    Interesting post.

    I wonder if public outrage spikes along with the government acts of chilling speech and throttling information. I would love to see a graph with the government acts on one line and public outrage to those acts on another, I’ll be there would a surprising disparity.
    My bet is that there are other factors more important to public outrage over these acts than the acts themselves. The fickle nature of the mass public means a popular government has a much easier time extracting liberties, especially if they are perceived to keep the trains running on time. Thankfully the founders knew this and created a system so slow moving and deliberate that this fickle nature is checked and even the most popular government would have a difficult (but not impossible) go at stripping Constitutional protections.