Julian Assange and wikileaks

There are many reactions to the wikileaks disclosures. More than twenty years ago in the Spycatcher litigation I successfully argued for a former MI5 officer’s right to publish his memoirs, and, in part, on the basis that their disclosure showed the British Government had engaged in criminal activities.

However it is fair to say that we also argued that there was no current operational material in the book, that we had offered it to the British Government to be blue-pencilled (to remove any such material) and in any event almost all of it was no longer confidential having been previously published (with the connivance of MI6).

So this material is very different from Peter Wright’s memoirs and in many respects is quite unique; the only comparable disclosure being Daniel Ellsberg’s Pentagon Papers. Mr Assange is being denounced just about everywhere and has gone so far as to claim that Australia has abandoned them. That is not, and should not, be the case.

I note that my colleague Senator George Brandis has described Mr Assange’s actions as morally reprehensible but not legally actionable, and I am sure that is right. I cannot see how he could be said to have breached any Australian law and I understand that it is not alleged he has broken any American law.

Mr Assange is free to return to Australia and if he is charged with a crime overseas then he would be entitled to consular assistance.

So his claims of being “abandoned” by Australia seem rather melodramatic. On the other hand the Prime Minister’s clumsy accusations of criminal activity on the part of Mr Assange just reinforce the impression that in this, as in so many other areas, she is way out of her depth.

So, having said that, what are we to make of Mr Assange’s conduct?

Governments will always seek to suppress leaks of information, especially if they contain embarrassing information. There is a public interest in shedding more light on the activities of Government.

In the Spycatcher case, Mrs Thatcher’s position was that no former intelligence officer could ever publish or disclose anything about his work regardless of whether it was still confidential, or whether it affected current operations. The ban was absolute. That was plainly an untenable approach and the Courts agreed.

A more measured approach which the American intelligence agencies have taken is that former intelligence officers can publish accounts of their work so long as it does not identify sources or affect in anyway current operations. This reflects the strong commitment to freedom of speech enshrined in the First Amendment to the US Constitution.

The real problem with the publication of the wikileaks material is that it impacts upon current operations, undermines important current strategic relationships and, worst of all, puts the lives of many people who have been assisting the United States and its allies at risk.

Now, Mr Assange is not an admirer of US foreign policy but on the other hand he should reflect that while his right to free speech is respected in the United States and Australia (subject to the Prime Minister’s outburst of course), he would be treated very differently had he been responsible for publishing the intelligence secrets of Al Qaeda or Iran and found himself in Tehran.

Much of the material he has published of course is beyond mundane. It is good to know that the keen Ivy League trained intellects of American diplomats have picked up that Berlusconi has a penchant for young ladies.

The revelations of Kevin Rudd’s remarks to Hillary Clinton won’t be news in Beijing either. Mr Rudd’s view of China is firmly rooted in the early 1980s when he served there as a diplomat and is, in my view, historically mistaken and strategically unwise. But frankly, if that cable had found its way onto the newsdesk of any newspaper it would have been published. See this speech to the Lowy Institute for my own views on China’s strategic issues and why the 2009 Defence White Paper is wrong in its assessment of China.

Some of the information confirms what many suspect – the Saudi Government’s encouragement to the Americans to take on Iran is hardly surprising but Mr Assange should reflect that the publication of this intelligence will be of considerable value to Al Qaeda. That doesn’t end the matter of course and while news judgements would differ about how to handle material like this – I imagine most newspapers would have no difficulty in finding a rationale to justify publishing it.

But then, there are other cables where the identity of informants is all too apparent. Many people assist the United States in the battle with Islamist terrorism, and almost all of them do so at great risk to themselves. That risk has been needlessly magnified by Mr Assange’s decision to publish this material. I would like to think that this kind of material would not be published by a responsible newspaper, certainly it shouldn’t be.

So how should we assess the damage done by the wikileaks cables?

Any assessment is preliminary – less than a thousand have been released and there are more than a quarter of a million to go.

The breach of security is almost beyond belief. If news reports are right, it is alleged that a 23 year old Private in US Army Intelligence had access to all this material, copied it and gave it to Mr Assange? If this is so, it beggars belief that American intelligence security is so lax when you consider the trillions of dollars spent on security and counter-terrorism measures.

The impact on individuals identified as assisting the Americans may be terminally severe. The responsibility for any lives lost as a result of these disclosures will be with Mr Assange – whether his committed a crime or not, his moral culpability will be beyond question because it is open to him to ensure that nothing is published which puts any individual in harm’s way.

The leaks must have a thoroughly chilling effect on the candour of conversations with American diplomats. The State Department will have to go to great lengths to convince the world that this cannot happen again.

Longer term at the diplomatic level I doubt if the impact will be severe. As Hillary Clinton observed other nations engage with the United States because it is in their interest to do so and the leakiness of Washington has always been well known (although never before on this scale). The big challenge for the Americans now, as I noted earlier, is to ensure that a leak on this scale cannot ever happen again.