Dr. Lawrence Davidson: Shield Laws, Wikileaks and the Public’s Right to Know

by Dr. Lawrence Davidson

Underneath the radar screen of the average American citizen, a legislative battle is going on for what is called a “Federal Shield Law.” This is legislation that would “protect journalists from having to reveal anonymous sources when challenged by prosecutors in federal court.” Actually, all but ten of the Unites States have such laws operating at the state level, but as of now there is no federal equivalent. Last year the House of Representatives passed a bill that would establish such a law and defined the categories of cases to which it would apply, but the Senate is yet to act. Why not? The answer to that is Wikileaks.

The Wikileaks Affair

It will be remembered that in July 2010 Wikileaks published on line tens of thousands of Defense Department documents, along with combat videos, concerning the conduct of the wars in Iraq and Afghanistan. This was “classified” material leaked to the web site by a whistle blower within the military. The documents show that the two wars were carried on with such loose rules of engagement as to result in massive civilian casualties. Before it released the documents, Wikileaks reviewed them as part of a “harm minimization process demanded by our source.” As a result it withheld 15,000 documents. Nonetheless, as a former FBI attorney put it, the information that was released is “embarrassing, inconvenient and gets in the way of the war effort.” Thus, ignoring Wikileaks own vetting process, the Defense Department accused the website of simply dumping classified material onto the web and thereby compromising the safety of U.S. troops and their allied informants, to say nothing of harming what is left of the U.S. reputation in the region.

These charges are to be taken seriously for one reason only. They come from an institution that can legally retaliate in a way that could have dire consequences for Wikileaks as well as that portion of the American public desiring to know the real consequences of policies pursued in their name. As to the substance of the charges themselves, there is much room for skepticism. The dumping charge is untrue on the face of it. Wikileaks did vet the material and that is why the 15,000 documents were withheld. We have only the Pentagon’s word for the allegation that the material made public endangered anyone. And the Pentagon, whose job in Iraq and Afghanistan seems to be the endangerment of everyone, is not a source to be trusted. The only charge made against Wikileaks that everyone can agree on is that the organization embarrassed the American government.

Enter the Shield Law Effort

As all this was going on U.S. news organizations and their journalist employees were pushing hard for a passage of a federal Shield Law. All expectations were that the Senate would pass its equivalent of the House bill this Fall. It is to be noted that the bill that passed the House last year specifically exempted cases that had to do with both terrorism and national security. The presiding judge on any such case can remove the Shield Law protection. In addition the House bill also limits protection of the Shield Law in cases having to do with classified military secrets.

Then came the Wikileaks Affair. The Senate’s linking of the Weakileaks to the Shield Law seems puzzling. The website’s July posting clearly falls under the national security and military secrets rubrics. So Wikileaks would not warrant Shield Law protection under the proposed law. Nonetheless, those opposed to the bill are using the Wikileaks Affair as a focal point for renewed opposition to the Shield Law. Perhaps, from their perspective those in opposition, all whistle blowers are at best the grown up version of the despised tattletales of their youth, at worst they are all just traitors of one sort or another.

Supporters of the bill have responded in two ways. First, the Senate sponsor of the legislation, Charles Shumer, Democrat from New York, is drafting new wording that would explicitly distance the bill from Wikileaks or similar organizations. The second and more important response comes from the country’s news organizations and journalists. They are all lining up to loudly condemn Wikileaks. They claim that Wikileaks is just “a drop box for leaked documents.” It just “publishes raw data without editorial oversight.” Wikileaks employees are not authentic journalists because the real ones always “go through a period of consultation before publishing sensitive material.” The fact that these assertions are demonstrably untrue seems not to matter to either the news organizations or the journalists. Both have participated in maligning Wikileaks as a politically expedient tactic aimed at saving the federal Shield Law. For the sake of that end, both groups are quite willing to throw Wikileaks to the wolves.

What is Really at Stake Here?

It is a sign of the superficiality of our politicians and the vested interest orientation of American news organizations and their journalists that they have seriously misinterpreted the importance of the Wikileaks Affair. This is not about who is or who is not a “real” journalist. It is about the status and future of what is suppose to be an “open” society wherein people are accurately informed about decisions and policies that actually or potentially impact their lives. It is about the right to know and the right not to be misled.

The reason that the Wikileaks’ action in July caused such an uproar within the U.S. government is because public support for both the actions that initiated the wars in Iraq and Afghanistan, and the policies that keep them going were and are based on lies and calculated omissions in public information. In other words, the administration of George W. Bush repeatedly misled the public and the administration of Barack Obama not only protects those responsible, but continues their practices. As a result millions have been killed and maimed and nothing of lasting positive significance has been gained. Wikileaks and its founder Julian Assange have taken the position that this is not only morally wrong, but politically fatal for a country that purports to be an open democracy. The news organizations/journalists have taken the position that they don’t give a fig for this fatal threat as long as they can win protection in particular categories of cases that the government itself will define.

There is a lot at stake here. Yet it bears repeating that this entire affair has gone on below the radar screen of most citizens. The vast majority go along with what the government says even as they indulge in demeaning jokes about dishonest politicians. If they did not, things would be very different. The government uses the term “national security” and the vast majority of citizens, including the journalists, simply abdicate their right to know. They assume that these two almost magic words denote activities that save lives rather than destroy them. Along comes Wikileaks and it says no, Americans must know the consequences of the policies carried out by their government. America, here are the facts. The result, from the general public, has been a proverbial “whimper.” No “bang” has been detected. Samuel Johnson (1709-1784), the British critic and lexicographer, once observed that “about things on which the public thinks long it commonly attains to think right.” I greatly admire Johnson, but on this he was wrong. Unless manipulated into doing so by the mass media, the public rarely if ever thinks long about anything,. Sadly, this includes the right, much less the need, to know what is done in its name.

Lawrence Davidson
Department of History
West Chester University
West Chester, Pa 19383
USA

Dr. Lawrence  Davidson has done extensive research and published in the areas of American perceptions of the Middle East, and Islamic Fundamentalism. His two latest publications are Islamic Fundamentalism (Greenwood Press, 1998) and America’s Palestine: Popular and Official Perceptions from Balfour to Israeli Statehood  (University Press of Florida, 2001). He has published thirteen articles on various aspects of American perceptions of the Middle East. Dr. Davidson holds a BA from Rutgers, an MA from Georgetown University and a Ph.D. in history from the University of Alberta.

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