July 26, 2010 7:58 PM

Lawyers Emerge from WikiLeaks Shadows

Posted by Brian Baxter

The disclosure of 92,000 classified military documents about the war in Afghanistan by WikiLeaks followed by related stories in The New York Times, The Guardian, and Der Spiegel surely didn't happen without the benefit of legal counsel advising on the potential First Amendment and national security issues arising from their publication.

A note to readers published by the Times on its Web site highlights just how sensitive--and potentially dangerous--much of the information is. The Times states that it cross-checked data, chose not to publish information that would harm national security interests, redacted the names of diplomats, field operatives, and military commanders, and avoided reporting on anything that could jeopardize U.S. and allied intelligence-gathering methods. (The Times's reports were independent of what WikiLeaks itself published on a special site set up for the disclosures, and what was published by The Guardian and Der Spiegel.)

Times spokesperson Diane McNulty responded to an inquiry regarding the paper's legal counsel on the matter. In an e-mail, she notes that senior vice president and general counsel Kenneth Richieri and vice president and assistant general counsel David McCraw, along with First Amendment fellow Jake Goldstein, advised on the WikiLeaks matter. (Richieri previously worked as an associate at First Amendment litigation powerhouse Cahill Gordon & Reindel; McCraw had been an associate at Clifford Chance.)

The in-house lawyers also consulted with David Schulz, a prominent media rights and First Amendment partner with Levine Sullivan Koch & Schulz in New York, McNulty said in the e-mail. Schulz previously served as head of the media group at Clifford Chance before joining Levine Sullivan in 2003. None of the lawyers were available for comment on Monday.

The Am Law Daily's recent attempts to speak with WikiLeaks founder Jules Assange and to identify the site's lawyers have been unsuccessful--we first tried in June after Assange told The Guardian he'd hired three lawyers pro bono to represent a U.S. intelligence analyst charged with leaking classified information to the group. But on Monday, several First Amendment lawyers spoke with us to assess the potential impact of the latest disclosures on the government's ability going forward to restrict the publication of privileged information in an increasingly "WikiLeaks" world.

"I think we're moving to a situation where it will be more and more difficult to protect secrets, regardless of the validity of the decision to make the information secret," says First Amendment expert and Cahill Gordon partner Floyd Abrams. "The combination of Web sites, anonymity, and pervasiveness of distribution make it extremely difficult to find a person or an entity to prevent them from publishing and punish them for publishing."

Abrams, who represented The Times in the landmark Pentagon Papers case before the U.S. Supreme Court, says certain pieces of classified information in that case were deliberately not published by both sides.

"Daniel Ellsberg today wouldn't need The New York Times, he'd just need to find a way to get [the Pentagon Papers] onto a Web site like WikiLeaks and let it all out," Abrams says. "One of my concerns is that Ellsberg didn't give The Times everything he had from those papers, and The Times didn't publish everything he gave them, because they both engaged in a level of editing given their views on national security."

As Abrams sees it, the question now becomes whether WikiLeaks has the ability or the interest in analyzing the information it gathers in order to make decisions and choices about what to publish. The Times, in its note to readers, explicitly states that "at the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site." That particular portion of the note is especially telling, Abrams says.

"That reveals the problem in all of this--nobody has a great deal of confidence that WikiLeaks is set up or oriented in a manner to refrain from publishing information which could do some harm," he says. "The Times is agreeing with the White House on this."

WikiLeaks has a track record when it comes to massive document dumps. A look at the Web site's archives before the site went down on Monday reveals a treasure trove of past disclosures that have rankled both governments and corporations. A U.S. district court judge in San Francisco temporarily shut down WikiLeaks in February 2008 after issuing an injunction sought by Swiss bank Julius Baer, which sued WikiLeaks over the publication of documents showing allegedly illegal activities in an offshore subsidiary.

Julius Baer withdrew its suit less than a month later, but WikiLeaks never appeared in court to defend itself. Instead WikiLeaks relied on other media organizations and journalism advocacy groups to make its legal arguments for it--Assange intimated as such in an interview with CNN last month.

Davis Wright Tremaine media law and entertainment litigation partner Thomas Burke in San Francisco, who represented the Reporters Committee for Freedom of the Press in the suit filed by Julius Baer, believes that WikiLeaks will transform the prior restraint principle of First Amendment law.

"There are certainly arguments for [disclosing everything], but from a legal perspective, the issue is you no longer have an editor exercising First Amendment-protected editorial decisions," Burke says. "If something's just posted on WikiLeaks, it's available for all the world to see and interpret."

Other lawyers agree that WikiLeaks has likely changed the game in First Amendment law going forward.

"The advent of something like WikiLeaks kind of makes the traditional concept of prior restraint obsolete," says Lee Levine, a name partner at Levine Sullivan (Levine is not advising The Times or any other parties on WikiLeaks-related matters).

"The technology now is for stuff to be put up and disseminated worldwide by people who can't be traced," he adds. "The notion that you'll be able to enjoin publication of this stuff in advance, such as the kind of comparative leisure that affected the Pentagon Papers, for instance, is just a thing of the past."

Photo: The Am Law Daily

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