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  • Eric A.S. Harvey, JD

Wikileaks as News Publication: Laying to Waste the Charges Against Assange

Updated: Feb 2

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By Eric A.S. Harvey, JD


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Photo Credit: The Daily Beast

The man that leaked “The Pentagon Papers” to The New York Times in 1971, Chicago-born Dr. Daniel Ellsberg is the 70s equivalent of present-day former U.S. Army soldier Chelsea Manning, the woman that provided anti-secrecy platform Wikileaks with the 90,000 classified documents that Wikileaks released as “The Afghan War Diary.”

Both Ellsberg and Manning had spent time in the military. Ellsberg was a company commander and platoon leader in the Marines from 1954 to 1957. He served in Southeast Asia. Ellsberg went on to work as a military analyst for the highest levels of our government. Similarly, Manning was a soldier stationed in Iraq from 2007 to 2010.


In their respective military careers, both Ellsberg and Manning experienced the trauma of two of America’s worst military campaigns. Both were ultimately motivated to disrupt these campaigns by leaking classified information to the American public. Both were charged with violating The Espionage Act of 1917—the piece of legislation passed shortly after America entered WWI, which aimed to stamp out subversion within the military. At the Act’s core was an attempt to mitigate the threat of espionage in war time.

In leaking “The Afghan War Diary,” Manning may have met a less favorable fate than Ellsberg. She was convicted of violating the Act by a military court and sentenced to a lengthy prison term. By contrast, Ellsberg was acquitted of all charges, when it was discovered that entities working for President Nixon had attempted to illegally obtain evidence of his alleged wrongdoing. It is important not to forget, however, that President Obama commuted Manning's sentence as he was leaving his second term in office.

Likewise, in releasing “The Afghan War Diary,” often likened to “The Pentagon Papers,” Wikileaks is reminiscent of The New York Times, when NYT released “The Papers.”

Provided with “The Papers” in the early 70s by the aforementioned Ellsberg, journalist Neil Sheehan at NYT is like an historical version of Wikileaks-founder Julian Assange. Both men came into possession of classified information. Both men were instrumental in exposing the global community to the leaks each facilitated during their respective careers. The course of public opinion on The Vietnam War (in Sheehan’s case) and America’s involvement in the Middle East (in Assange’s case) was radically altered in a positive fashion as a result of Sheehan and Assange. The leaks only bolstered the American public’s legitimate opposition to the Vietnam and Iraq Wars.

American presidents during the Vietnam War promised a swift resolution to the military campaign. However, they failed to deliver on that. Likewise, American presidents since George W. Bush have intimated that the Middle Eastern campaign will be swift. But even though Trump ran on a platform in 2016, on which he claimed he would bring America’s now 19-year-old war to an end, there is no end to the Middle Eastern campaign in sight.

In other words, the parallels between the circumstances under which the Southeast Asian campaign and the Middle Eastern campaign have taken place are striking. Manning is the present-day version of Ellsberg. Assange is the present-day version of Sheehan. Wikileaks is the present-day version of NYT. There is a lesson to be learned from observations about these parallels. These lessons bear upon how unobservant the American government can be of the rights to which we are entitled under the First Amendment.

For the sake of relieving Assange of the criminal charges he faces for allegedly violating The Espionage Act, it is essential to prove that Wikileaks is a publishing platform and that Assange is like an editor-in-chief or a journalist at any news publication. If he is merely a journalist, and if he is undeniably like Sheehan, the government has no case.

As I have explored in past articles, New York Times Co. v. U.S. was a landmark case in American judicial history, where a news publisher of sensitive information, NYT, was venerated for how socially responsible it was in informing the public of government corruption and brutality.

The Framers and Chief Justice Douglas Black in New York Times hailed the press as a check on the powers our three branches of government wield. It is this check on power that they believed maintained a truly free and democratic state; in keeping the public well-informed, the press preserves, according to Chief Justice Black and The Framers, the public’s ability to meaningfully oppose government corruption.

In the 2000s, Wikileaks was undeniably in a similar situation to NYT in the 1970s. “The Afghan War Diary” featured extensive documentation of how brutal the American military has been in the Middle East. Insofar as it featured such extensive documentation, the similarity between the anti-secrecy platform and the news publication are striking.

But, is Wikileaks truly a news publication? That question is the crux of my argument.

Hoping to gauge the public's opinion of Wikileaks, I turned to Google as I prepared for this article. The sources that came up during so many searches, using the terms “Wikileaks as stateless news organization,” are voluminous. However, is this massive volume of sources, that characterize Wikileaks as such, merely uninformed public opinion? I answer in the negative.

I answer in the negative in light of what news publications have done throughout history. They have released stories regarding current events, and many of those stories have contained sensitive information. Wikileaks functions in this capacity, as well.

Wikileaks' leaks are like stories by journalists. They are just primary sources. Journalists at traditional news publications may merely quote primary sources much of the time. Wikileaks' leaks are like lengthy quotations of primary sources, but they are not mired in the biases that journalists necessarily harbor insofar as they are direct, complete, and protracted quotations of primary sources.

Now consider this. NYT was able to get away with releasing the voluminous evidence of the American military’s brutality in Vietnam. It was even venerated by most of the justices in New York Times. And, like Wikileaks, NYT released direct, complete, and protracted quotations of sensitive documents in the form of “The Pentagon Papers.”

NYT released “The Papers” in segments until lower American courts, at the request of the government, imposed an injunction on NYT’s continued release of “The Papers.” However, when the case reached The Supreme Court, NYT won, and the publication was able to continue releasing “The Papers.” By contrast, while “The Afghan War Diary” is comparable to “The Papers,” insofar as it too features the lengthy, complete, and protracted quotation of primary sources that testify to government corruption, the American government is pursuing Assange as an international criminal mastermind.

If NYT can get away with releasing “The Papers,” and if Wikileaks is a news publication in terms of the astounding similarities between the functions of Wikileaks and any news publication, and if Assange was merely the entity that oversaw the release of classified documents, then the government’s case for pursuing Assange is absurd. The government is pursuing an entity belonging to the historically protected press.

Finally, given the similarity between the historical circumstances under which Ellsberg and Manning and Sheehan and Assange functioned, it is astoundingly observable again that pursuing Assange as a criminal is inconsistent with American judicial history (given New York Times) and American history in general.


Again, Manning is the present-day version of Ellsberg. Assange is the present-day version of Sheehan. And Wikileaks is the present-day version of NYT. Again, given these similarities, pursuit of Assange is absurd. Freedom of the press is guaranteed under The First Amendment. But, in our current conflict in the Middle East, administrations since Obama have not observed that right. It is the case that it has been particularly so since former President Obama occupied the Oval Office, given that his administration prosecuted more whistleblowers combined than any other administration ever has. These authorities are not only violating Assange’s human rights (as Assange rots in an English prison on trial for possible extradition to the United States), but they are also assaulting the bases of our government laid out by the Founding Fathers.


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