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WikiLeaks and the Institutional Framework for National Security Disclosures

80 Pages Posted: 3 Apr 2012  

Patricia L. Bellia

Notre Dame Law School

Date Written: April 2, 2012

Abstract

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.

The lessons of the Pentagon Papers case for WikiLeaks, however, are more complicated than they may first appear. The Court’s per curiam opinion masks areas of substantial disagreement as well as a number of shared assumptions among the Court’s members. Specifically, the Pentagon Papers case reflects an institutional framework for downstream disclosure of leaked national security information, under which publishers within the reach of U.S. law would weigh the potential harms and benefits of disclosure against the backdrop of potential criminal penalties and recognized journalistic norms. The WikiLeaks disclosures show the instability of this framework by revealing new challenges for controlling the downstream disclosure of leaked information and the corresponding likelihood of “unintermediated” disclosure by an insider; the risks of non-media intermediaries attempting to curtail such disclosures, in response to government pressure or otherwise; and the pressing need to prevent and respond to leaks at the source.

Keywords: WikiLeaks, national security, First Amendment, leaks, Espionage Act, classified information

JEL Classification: K1, K14, K42

Suggested Citation

Bellia, Patricia L., WikiLeaks and the Institutional Framework for National Security Disclosures (April 2, 2012). Yale Law Journal, Vol. 121, No. 1448, 2012; Notre Dame Legal Studies Paper No. 12-59. Available at SSRN: https://ssrn.com/abstract=2033207

Patricia L. Bellia (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556
United States
574-631-3866 (Phone)
574-631-8078 (Fax)

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