WikiLeaks and the shrinking of democratic space

by Kishali Pinto Jayawardene

(December 06, Colombo, Sri Lanka Guardian) Leaving aside the barely voyeuristic pleasure exhibited by some regarding the WikiLeaks disclosure of more than 250,000 classified and confidential diplomatic cables sent by United States diplomats from all parts of the world, are we not overreacting just that little bit extra?

Assessments of military and political leadership

This is so particularly where Sri Lanka is concerned. Confidential, (or supposed to be), diplomatic assessments that this country’s political and military leaders were to blame for ‘alleged’ civilian killings during the last stages of the war between the LTTE and government forces surely cannot come as any extraordinary surprise? This is as much to be expected, after all, as assessments by analysts across the globe not so long ago that former US President George W. Bush and Prime Minister of UK Tony Blair were to blame for thousands of ‘alleged’ civilian killings in Iraq and Afghanistan.

These statistics, (which by the way, far exceeded Sri Lanka’s count of what is brutally termed as collateral damage) resulted in anti-American sentiment being whipped up to an extreme level, and not necessarily only in Islamic countries.

Not only that, these two wars irreparably changed the global rights discourse. Faced with an immediate shrinking of democratic space and the perpetuation of obscenities such as Guantanamo, Abu Ghraib, practices of rendition and torture, other authoritarian leaders also fighting their ‘wars on terror’ were encouraged to even greater infringements of liberties.

Probably if diplomatic cables by countries critical of the US and the UK’s ‘war against terror’ had been leaked at that time or even now, the tone and the content would have been quite similar to the observations made by US diplomats regarding other countries. In the final result, a country’s leaders (military and political) must accept responsibility for the abuses committed by its officers on or off its soil. This is true for Sri Lanka, the US, UK or for any other country for that matter.


Lynch calls and their negativity

Again, are we so taken aback to be informed that former British Foreign Secretary David Miliband’s unseemly if not arrogant agitation during that time was due to the pressure of his Tamil diaspora constituents? The electoral pressure wielded by these groups at the cost of their suffering communities back at home is no great surprise, despite pronouncements to the contrary by UK politicians. And are we so naïve as to be outraged when informed that the US Secretary of State had apparently issued an injunction on diplomats to spy on high level staff of the United Nations? Did we, by any chance, mistake the United States for some other country which believes in measuring the true value of life by a happiness index, like Bhutan for example? The enduring value of the American system lies in the American poets, the writers, the great liberals and the great judges, assuredly not in their politicians who, like the politicians in Sri Lanka, act on self interest alone.

The lynch calls currently being uttered by US politicians against WikiLeaks’ Julian Assange does not bode well for the makers of those utterances or for the US system as a whole. A calm and sober assessment of whether the law as it stands now has been violated would serve the purpose far better. Prosecution of Assange is however far from a clear cut process as is evidenced by US lawmakers attempting to bring in amendments to the existing laws so as to severely punish such leaks in the future.


The publication of secrets as viewed by US courts

Legal norms on the publication of secretive material in the US are best exemplified in the seminal New York Times v US. (403 US 713 (1971), popularly known as the Pentagon Papers Case, where the Supreme Court faced the issue of freedom of the press v. national security. In issue here was the right of the New York Times and the Washington Post to publish in instalments a study of the US decision making process on Vietnam policy, including material still classified as “Top Secret sensitive” by the Defence Department. Injunctions were obtained restraining the newspapers from publishing future instalments. When the case came up before the Supreme Court, the majority was of the view that the injunctions should be vacated.

Justice Black stated “I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible and continuing violation of the 1st Amendment…in the 1st Amendment, the Founding Fathers gave the free press the protection it must have to fulfil its essential role in our democracy. The press was to serve the governed, not the governors…only a free and unrestrained press can effectively expose deception in government.” Justice Douglas said “The dominant purpose of the 1st Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information…secrecy in government is fundamentally anti democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national security.”


A clear and present danger and the shrinking of space

There are those who argue, perhaps justifiably that what is in issue in the WikiLeaks disclosures were private communications as opposed to defined policies and that the disclosures constitute a ‘clear and present danger.’ This language emulates a statement by the US Court (Schenck Vs U.S. (249 U.S. 47, 1919) during a prosecution under the Espionage Act for a publication seen to obstruct the recruitment and enlistment service of the U.S. when it was at war, where the Supreme Court affirmed the conviction. Other cases where this principle has been sought to be used in different contexts have seen rich dissents by some of US’s greatest judges.

Whatever may be the result of the ongoing controversy over the disclosures, as much as the war against terror resulted in a shrinking of democratic space, the WikiLeaks disclosures are likely to lead to a chill on information that could again have reverberations globally. This is a further blow to advocates of civil liberties in each and every country when so much has been lost already.