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June 22, 2010 6:40 PM

Who Are the Lawyers Representing WikiLeaks?

Posted by Brian Baxter

UPDATE: July 14, 3:52 p.m. The U.S. government has formally unveiled charges against Bradley Manning.

WikiLeaks founder Julian Assange emerged from hiding this week to tell a British newspaper that he's staying out of the U.S. on the advice of counsel. Assange also told The Guardian that WikiLeaks has hired three unidentified lawyers pro bono to represent a U.S. intelligence analyst arrested in May for leaking information to the controversial online clearinghouse for confidential documents.

WikiLeaks made headlines earlier this year when it released a video of a 2007 attack by a U.S. military helicopter in Iraq that killed two Reuters journalists. The group also garnered attention by releasing a 2008 U.S. Army Counterintelligence Center report that labeled WikiLeaks itself a potential threat to U.S. military forces and intelligence operations. (Click here for a recent profile of Assange by The New Yorker, and here for a quick primer on WikiLeaks.)

The Washington Post reported on Tuesday that WikiLeaks plans to release a second potentially explosive video, this one of a 2009 U.S. air strike that killed Afghan civilians. The revelation comes on the heels of the arrest of U.S. Army Pfc. Bradley Manning in Baghdad last month, after Manning allegedly told a computer hacker he turned over 260,000 confidential diplomatic cables to WikiLeaks.

Assange has publicly defended Manning, while denying that the soldier was the source of the Iraqi attack video released in April or of diplomatic materials sent to WikiLeaks. Nonetheless, earlier this month Assange requested that the hacker who identified Manning to military authorities hand over copies of his Internet chat logs with Manning.

Assange stated in his e-mails to the hacker, which were obtained by Wired magazine, that WikiLeaks had lined up counsel to represent Manning and needed the materials for the soldier's defense. The WikiLeaks Web site states that the organization has "an unbroken record in protecting confidential sources."

The Am Law Daily was unsuccessful in its attempts to track down the lawyers representing WikiLeaks Tuesday. Messages sent to e-mail addresses for Assange and several other WikiLeaks addresses, including a generic address for the organization's legal counsel, went unreturned by the time of this post. (Assange spoke briefly with The Daily Beast on Monday.)

Assange has previously said that WikiLeaks sometimes relies on lawyers donated by mainstream media outlets like The Associated Press and Los Angeles Times to handle its legal issues.

One Washington, D.C., lawyer familiar with national security issues says that he knew of colleagues that had reached out to Assange, but the WikiLeaks founder had been "somewhat erratic" in responding to e-mails. The lawyer, who defended WikiLeaks's mission, says he was unsure whether the organization had officially made any outside counsel hires.

"They're performing a public service," said the lawyer, who requested anonymity in order to speak freely. "The government routinely over-classifies information, usually to avoid embarrassment. Judge Brandeis once said, 'Sunshine is the best disinfectant.'"

Not all First Amendment lawyers agree with that assessment.

"Basically they've made their business a repository for people who want to publish damaging things that by law aren't supposed to be published," says David Marburger, a media litigation partner specializing in First Amendment issues at Baker & Hostetler in Cleveland. "It's a great idea, but I don't think I'd want my liberty and property to be on the line for it."

That may help explain why Assange says he is staying out of the U.S. for the time being on the advice of counsel. Assange canceled a planned appearance in Las Vegas at a conference for journalists earlier this month, reportedly after speaking with Daniel Ellsberg, the former U.S. military analyst whose disclosure of the Pentagon Papers led to litigation that made its way to the U.S. Supreme Court. (Ellsberg reportedly urged Assange to stay out of the U.S.)

The government eventually dropped its prosecution of Ellsberg when it was revealed that authorities had illegally raided his psychiatrist's office. However, other government employees who have leaked classified material, such as Samuel Morrison, have been prosecuted and convicted. WikiLeaks has sought to ameliorate challenges to its authority by maintaining a secretive and diffuse structure--the organization has no listed phone number, only a P.O. box at an Australian address.

Some First Amendment lawyers say that has likely helped WikiLeaks stay out of court.

"If you're operating offshore, you have no assets in the U.S., and you have no contacts here, that might be one thing," says Paul Watler, a partner at Jackson Walker in Dallas and frequent defender of media organizations in litigation disputes. "But if you do have assets or a presence here, you might want to conduct yourselves differently than [WikiLeaks] has done."

Assange has said publicly that WikiLeaks will take steps to provide civilian counsel to Manning, who has reportedly been provided with a judge advocate general to represent him in military legal proceedings. Watler says that a U.S. media organization providing a source with counsel is not the norm. "It's not customary for members of the media in the U.S. to defend their sources, it's certainly not unheard of, but it's not common," he adds.

Part of the buzz about WikiLeaks is due to the fact it publishes materials that might give more traditional media organizations pause. While that doesn't exempt WikiLeaks from the legal issues that have arisen in the past, it does make some lawyers that work in First Amendment circles think twice about the government's motives when targeting the group.

"Let me be clear, I don't condone leaking classified information," says the D.C. lawyer. "But rather than focus on the disclosure of this information by WikiLeaks, or take aim at the media outlet that discloses that information, the government ought to be focusing on the event that has been disclosed. That's where the real crime may have occurred."

Contact Brian Baxter at bbaxter@alm.com


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