IS WIKILEAKS A HIT MAN HANDBOOK? WHY WIKILEAKS CANNOT CLAIM FIRST AMENDMENT IMMUNITY IF THE AFGHAN AND IRAQ WAR LOGS CAUSE PHYSICAL HARM.

• Author: Wolbers, Rachel

INTRODUCTION

On July 25, 2010 WiMLeaks.org ("WikiLeaks") released almost 70,000 classified U.S. military documents on to its website, detailing American operations in Afghanistan (the "Afghan War Logs"). (2) While the Afghan War Logs comprised only a small portion of the documents released on WikiLeaks during 2010, this leak alone contained the names and addresses of over 117 informants. (3) A hypothetical cable from the Afghan War Logs would read:

"HCT (4) was notified by local informant Rachel Redacted (5) of IEDs (6) hidden in a plum orchard in Khost. Orchard belonged to Paul Property-Owner, (7) but he was not currently living in area. Rachel Redacted has provided information on IEDs at least 15 times in the past. Counter-IED Units located all IED components buried in plum orchard." (8) From this cable, Rachel Redacted's identity could easily be discovered with the help of some local knowledge. (9) Providing clues regarding the specific identities of U.S. collaborators put these informants, their families, and the U.S. troops in the region in harm's way. (10) Shortly after the Afghan War Logs release, the New York Times reported that the Taliban formed a nine-member commission to create a "wanted" list of Afghan informants identified on WikiLeaks. (11) The Taliban spokesman added, "[a]fter the process is completed, our Taliban court will decide about such people." (12) A Taliban "court" would likely sentence suspected informants to a gruesome death. (13)

On the night of March 3, 1993, James Perry, a contract killer, murdered Mildred Horn, her quadriplegic son, Trevor, and Trevor's nurse, Janice Saunders. (14) Lawrence Horn, ex-husband of Mildred and father to Trevor, hired Perry to kill the family so he could inherit Trevor's trust fund. (15) In plotting the murders, Perry followed, step-by-step, the instructions of the book Hit Man: A Technical Manual for Independent Contractors ("Hit Man Handbook"), published by Paladin Press ("Paladin"). (16) The victims' families sued Paladin for wrongful death on the theory that Paladin had aided and abetted the murders by supplying Perry the training manual. (17) The Fourth Circuit remanded the case for trial, holding that the First Amendment did not prevent subjecting the publisher, Paladin, to liability for the wrongful deaths of the victims' families. (18)

Will the Free Speech Clause of The First Amendment (19) protect WikiLeaks or, like Paladin, could WikiLeaks be subject to liability if its publication of the Afghan and Iraq War Logs led to the unlawful killing of a U.S. informant or soldier? Both publications add discourse to the public debate on issues of criminal activity. Although the vast majority of readers will use these publications in a non-violent way (20), both publications can facilitate crime by providing information that makes it easier for someone to commit a crime. While the judicial system must protect freedom of speech, it must also ensure safety to those assisting the U.S. in its war efforts.

The unredacted WikiLeaks cables are damaging to both the U.S. informants listed and the overall U.S. war efforts in Afghanistan and Iraq. (21) The Bill of Rights is designed to balance competing interests, including personal liberty, individual safety, and national security. (22) A wartime environment, however, inevitably intensifies this tension. (23) Throughout American history, the government has restricted public discourse in the name of "national security." (24) Nevertheless, even in the name of national security, the government must have a compelling justification for such limits. (25) Ultimately, the balancing test for the freedom of speech is simple: do the benefits of disclosure outweigh its costs? (26)

When addressing the individual safety of those informants exposed by WikiLeaks, the First Amendment offers protection because it "does not guarantee an absolute right to anyone, to express their views any place, at any time, and in any way they want." (27) For instance, in order to protect our nation, the government may regulate speech that gives military advantage to a foreign enemy, (28) or speech that is likely to cause individuals to fear immediate violence. (29) Furthermore, speech which poses a risk to society and that does not promote the underlying values of the First Amendment can be considered unprotected speech. (30)

Indeed, the First Amendment protects some speech more than others. (31) The Supreme Court has held that truthful information that is a matter of public concern is the most protected type of speech. (32) This is justified by the Supreme Court's belief that the constitutional purpose behind the guarantee of press freedom is to protect "free discussion of governmental affairs." (33) On the other hand, the Court has noted that it is "obvious and unarguable" that no governmental interest is more compelling than the security of the Nation. (34) Therefore, the court must balance the public concern doctrine, which is considered the highest rung of protected speech, (35) against the government's responsibility to protect individuals from national security risks, (36) true threats of violence, (37) and the over-arching problem of crime-facilitating speech. (38)

This note will conclude that if WikiLeaks is prosecuted for crimes in relation to the leaked documents, it is not immune from civil or criminal liability under the First Amendment because the harms created by releasing unredacted documents outweigh the public benefit of added discourse on the wars in Afghanistan and Iraq. (39) Part II discusses the WikiLeaks situation by explaining the organization's past, intentions, and the released documents. Part III evaluates the First Amendment's public concern doctrine. Part IV discusses three exceptions to First Amendment immunity: (1) the national security exception; (2) the true threats doctrine; and (3) the umbrella of crime-facilitating speech. Part V lays out a balancing test for assessing when speech is unprotected by the First Amendment in regard to its value to society and the harm created under the national security exception, the true threats doctrine, and crime-facilitation. Part VI concludes that WikiLeaks will not be protected by First Amendment immunity if prosecuted for harm to U.S. informants or soldiers because it does not pass the balancing test.

1. BACKGROUND INFORMATION ON WIKILEAKS

   "They called me the James Bond of journalism,"--Julian Assange (40)

   WikiLeaks is a whistle-blowing website that provides an anonymous way for sources to leak information to journalists. (41) The organization's objective is to bring transparency to both private and public sector decision-making. (42) In 2010, many of the publications released by WikiLeaks were classified U.S. military and diplomatic cables. (43) This caused many government officials to wonder if the U.S. government can, or should, try to limit WikiLeaks' freedom of speech in the name of national security. (44)

   1. What is WikiLeaks?

      WikiLeaks is a website that was founded in 2007 by a group of government-transparency activists and Julian Assange, a 39-year-old Australian. (45) Assange "used years of computer hacking experience, and what friends call a near genius I.Q.," to establish WikiLeaks and redefine whistle-blowing. (46) WikiLeaks operates as a non-profit organization, with very small operating expenses and no paid salaries for its staff members, including Assange. (47) WikiLeaks argues that, because they are not motivated by making money, it is easier to cooperate with other publishing and media organizations around the globe in order to attract as much attention as possible. (48) The organization does this by making the original documents available so that readers can verify the source documents. (49)

      Before publication, WikiLeaks ensures that documents are genuine by conducting a forensic analysis of the material to determine the cost of forgery and claims of the apparent authoring organization. (50) Additionally, WikiLeaks outsources verification analysis to media organizations like the New York Times (U.S.), The Guardian (U.K.) and Der Spiegel (Germany). In the case of the Afghan and Iraq War Logs, these three prominent newspapers were given copies of the cables months before their release on WikiLeaks, on the condition that all of the organizations coordinated the release date. (51) The simultaneous publication sparked worldwide attention and allowed the publishers to focus on specific stories to target a broader readership.

      To understand the legal quandary WikiLeaks presents, it is vital to know how the website functions. WikiLeaks promises protection for its sources and claims that the website "provides a high security anonymous drop box fortified by cutting-edge cryptographic technologies." (52) The organization operates a number of servers across multiple international jurisdictions and anonymity occurs early in the process. WikiLeaks obscures submissions in junk data, then routes them through servers in Sweden, Belgium, and Iceland--countries with strict laws protecting journalists and the disclosure of confidential sources. (54) As a result, WikiLeaks calls itself "multi-jurisdictional" (55) because it is nearly impossible for a single government to force a document's removal from its servers.

      WikiLeaks' technology operates on a Tor network. (57) The creation of a Tor network is the key to WikiLeaks' security because only the first proxy server, the entry node, ever communicates directly with the user. (58) The first server relays the documents to the second, the second to the third, and so on. In the end, the system prevents any one node from being able to trace activity back to the original user. (59) The system began small, but WikiLeaks' network now encompasses over 700 servers around the world (60) and shutting down the network by legal means would be complex because there is no central authority. (61) Therefore, while a court order in...