Word is out that the Wikileaks classified-document dump contains reports naming Afghans who have been cooperating with Coalition forces. This is the kind of information that can get people killed. It also raises the data release to a new level of criminality.
The Washington Times Editorial Board reviewed the reports in question on the day of their release but chose not to write about them because of the potential damage that revealing the information could do to the war effort as well as to cooperative Afghans. These secret reports have the greatest possibility of causing deadly consequences, which under the American legal tradition is why those who leaked them should be held accountable.
First Amendment protections for the press are necessary but not unlimited. The Supreme Court has recognized that in extraordinary cases, especially in time of war, limits may be placed on what may legally be published. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” Justice Oliver Wendell Holmes wrote in 1919 in Schenck v. U.S. “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
The First Amendment does not protect publishing information likely to result in troops being killed or that directly hampers military operations. The government has an overriding interest in safeguarding such information, even to the point of justifying banning publication before the fact. In 1931’s Near v. Minnesota, the Supreme Court struck down a state law sanctioning prior restraint. It nevertheless reaffirmed the logic of Schenck that in some circumstances, the right of government to limit publication of sensitive national security information is self-evident. “No one would question,” Justice Charles Evans Hughes wrote, “but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”
Even in New York Times Co. v. U.S. - the 1971 “Pentagon Papers” case, which gave great latitude to the press - the court generally upheld this reasoning. The Wikileaks document dump has been erroneously compared to the Pentagon Papers, but the latter were high-level, internal bureaucratic decision-making documents that dealt primarily with the origins and conduct of the Vietnam War. They did not reveal the names of pro-government village leaders or directly place lives at risk.
The U.S. government should explore all its options both to punish the Wikileaks leakers and to deter or prevent future such releases of sensitive national security information. Wikileaks is based in Iceland, and neither the First Amendment nor protections from surveillance by the intelligence community apply overseas. For the foreigners involved, the leaking is espionage. For the Americans involved, it is treason.