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The Emergence ofWikiLeaks: Openness,Secrecy and Democracy

Spencer Zifcak

Everything secret degenerates, even the administrationof justice; nothing is safe that does not show how it canbear discussion and publicity.- Lord Acton

Disclosure is not merely an action; it is a way of life. Tomy mind it carries both sense and sensibility: you arewhat you know, and no state has the right to make youless than you are. Many modern states forget that theywere founded on the principles of the Enlightenment,that knowledge is a guarantor of liberty, and that nostate has the right to dispense justice as if it weremerely a favour of power. Justice, in fact, r ightlyupheld, is a check on power, and we can only lookafter the people by making sure that politics nevercontrols information absolutely.- Julian Assange

Just three years ago WikiLeaks was virtually unknown and itsfounder, Julian Assange, was next to unrecognisable as a national,let alone global identity. A short time later almost no one couldsay that they knew nothing about the organisation. Assange’spicture appeared on the front cover of TIME magazine and hewas described early in 2011 as the most ‘famous man in theworld’. The website that encouraged whistleblowers to send

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their secret documents securely to it without prospect that thesender could be identified had become a global internetphenomenon of unprecedented scale and significance.

Yet, at the same time, the depositing of large collections offormerly confidential private and governmental documents inthe public domain carried with it a host of problematic,complex and difficult political and ethical issues. In this chapterI examine some of the most important, concentrating in partic-ular upon those bearing on freedom of information and itscentrality to the idea of democracy. Before embarking upon thatstudy, however, it is worth painting a picture of the backgroundto these massive, fascinating documentary disclosures.

WikiLeaks’ dramatic emergenceThe basic idea behind WikiLeaks was that people who wishedto do so could submit leaked documents to the websiteanonymously. Behind the site lay a complex, highly technicalprocess of encryption designed to ensure that it could not behacked so as to expose either those submitting documents orthe means by which the documentation was made secure. Thesite was said to combine the protection and anonymity ofcutting edge cryptographic technologies. That technology wasthe means through which the site’s philosophical stance couldbe made tangible. The stance was not difficult to understand.

WikiLeaks stood above all for transparency in the gover-nance of public and private sector organisations. By exposingsecret documents to public view, the organisation saw itself asin the vanguard of a citizens’ movement to combat corrup-tion, deceit, abuse and malpractice in public and private organ-isational affair s. It sought to equalise power betweengovernments and the governed by providing citizens with theinformation they needed to hold their rulers and bosses toaccount. In this, the organisation portrayed itself as a globaladvocate for democracy and equality. The global focus wasimportant. WikiLeaks in principle did not seek to distinguish

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between or be selective as to nation states or as betweengovernments and corporations. Its objective was to promote itsideal of openness governance internationally and multi-nationally. No national government, international governmen-tal organisation or multinational company would escape itsgaze. These were next to impossibly ambitious goals, butbetween 2008 and 2010 the organisation flew close, butdangerously, towards their achievement.

WikiLeaks’ first coup came in Kenya. In 2008 it obtaineda copy of a voluminous report that had been commissioned toinvestigate the corruption of the former President, DanielArap Moi. It had been expected that the report would bereleased upon its completion. But Moi’s successor as President,Mwai Kibaki, ordered that it should remain secret. WikiLeakspublished it. Julian Assange later claimed that the publicationhad resulted in a shift of 10% in Kenyan voting patterns. Therelease projected WikiLeaks to prominence, following which asteady stream of leaked material made its way to the site, andwith each new release, its effectiveness and name became evermore evident.

The crucial turning point for the organisation came,however, with the release of the so-called ‘Apache video’.Leaked to the website from an unknown source, the videoshowed a group of civilians caught in cannon fire from a UShelicopter. The helicopter fired from a kilometre in the skyand was, therefore, almost invisible to those on the ground.Two Reuters journalists were killed in the incident, twelveothers died and two young children were seriously injured butsurvived. Radio transmission from the helicopter appeared todemonstrate that the air crew were unconcerned that childrenhad been shot. The video was premiered at the National PressClub in Washington and caused a sensation. WikiLeaks hadtaken off.


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In 2010, three colossal document disclosures occurred.Each related to different aspects of US foreign and militarypolicy. Each created a political storm whose effects bore notonly upon the conduct of the US administration, but alsoupon that of its allies. Insofar as each related to the conduct ofmilitary and diplomatic affairs in the world’s most sensitive anddifficult conflicts, the content of the leaked documentationwas of significance to most national governments across theglobe, including those with whose regimes the United Statesdiffered.

The Afghanistan war logs contained more than 90,000discrete items of information on the conduct of the war asdescribed by military officers in the field. The war logs werebroken down into detailed categories that related to everysignificant action taken by the US military and its allies, localIraqi and Afghan forces, civilians and enemy combatants. Eachcase was concluded with figures as to numbers killed andwounded. The statistics produced by this method revealed asubstantial variance between official statistics as to casualties inAfghanistan and those contained in the war log spreadsheets.The documents disclosed that many thousands more had beenkilled than had previously been acknowledged.

Only a few months later, WikiLeaks posted on its websitesome 91,000 field reports from the conflict in Iraq. Hereagain, the principal value of the documents lay in the contentof the statistics as to deaths and injuries sustained during themany years of bloody battles that had taken place in Iraq sincethe invasion in early 2003. The US government kept figureson the rate of casualties among its soldiers, but denied that anyother statistics as to the deaths of others in the combat wereavailable. Incident by incident, the Iraq logs catalogued thehuge losses suffered by the Iraqi side and by the Iraqi civilianpopulation. The official US figures stated that towards the endof 2009, some 4,748 US and allied troops had lost their lives.




The incident reports in the Iraqi war logs, combined with thepatient and studious study of casualties conducted by the non-government organisation, Iraq Body Count, produced a bestestimate as follows: 66,081 Iraqi civilians died; a further 15,196members of the Iraqi security forces were killed; 23,984people classified as ‘the enemy’, were extinguished. However,the figure for US and allied dead came down to 3,771. Thesefigures, previously unascertainable, shocked the globe.

Julian Assange launched the Iraq logs in the ballroom ofthe Plaza Hotel on the Thames in London, together with PhilShiner of Iraq Body Count. Three hundred journalists fromaround the world attended, five times more than those at thelaunch of the Afghan logs. WikiLeaks and its founder hadbecome a global phenomenon. But the most stunning disclo-sure was yet to come.

The 28 November 2010 was the date on which thelargest ever publication of confidential governmentaldocuments took place. In coordination with The Guardian, TheNew York Times, Le Monde, Der Spiegel and El Pais, WikiLeakscommenced the disclosure of 251,287 internal state US StateDepartment communiques, written by 280 embassies in 180different countries. The publication produced an uproar. TheGuardian newspaper introduced the disclosures on its frontpage. The headline was ‘US Embassy Cables Leak SparksGlobal Diplomatic Crisis’.1 The article that followed focusedespecially upon two major diplomatic issues. The first was thedisclosure that Arab leaders had privately urged an air strikeupon Iran. The second was the revelation that US officials hadbeen instructed to spy on the leadership of the UnitedNations including on the organisation’s Secretary-General,Ban Ki-Moon. The Guardian’s editor described the publicationof the documents as the biggest story on the globe.2

The US government was appalled. Its spokesman declaredthat the publication of cables could prejudice candid discus-


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sions with representatives of foreign governments. It wouldadversely affect the conduct of US foreign policy and that ofits allies. It was reckless and dangerous. The Guardianresponded by making it clear that the paper had carefullyscrutinised and redacted the cables it was to publish. This hadbeen done to ensure that named sources, particular in thecontext of war, had been protected and that special operationswould neither be disclosed nor prejudiced.

It is with freedom of information of this kind and itsproper limits that the remainder of this chapter will beconcerned. An examination like this cannot hope to cover theentire field of WikiLeaks’ documentary disclosures. I confinemy attention therefore to the release of the diplomatic cablesalone.

Openness and secrecy To set the scene for a discussion of the justification and ethicsof the release of the State Department cables, I think it worth-while first to consider the principles on the basis of which afair and reasonable balance might be attained between thedesirability of transparency in government administration onthe one hand, and the imperatives of secrecy on the other.

Jeremy Bentham put a powerful case for transparency inpublic administration more than two centuries ago. He insistedthat publicity was essential to ensure that governmentpromotes the greatest happiness for the greatest number.

Let us place at the head of the [political assembly’s]regulations the fittest law for securing the public confi-dence, and causing it to constantly to advance towardsthe end of its institution … the law … of publicity.3

Publicity, Bentham believed, was valuable first and foremostbecause it underpinned democratic accountability. It encour-aged citizens to deliberate about public policy and enabledpublic officials to learn about and from public opinion. In thiscontext, too, Bentham warned of the dangers of secrecy.




Secrecy, he argued, may act as a powerful encouragement tothe abuse of political power. ‘Whom ought we to distrust,’Bentham asked, ‘if not those in whom is committed greatauthority, with great temptations to misuse it?’4

More recently, conceptual argument concerning the ideaof publicity has been advanced within the context of the newidea of ‘deliberative democracy’. Within this framework, to betruly democratic, public deliberation about political andethical questions should not be confined to constitutionalconventions, parliamentary debates, judicial opinions and soon, but should properly extend throughout the politicalprocess. Ideally, such deliberation, if and when realised, wouldencourage extensive ethical and political argument as to themerits of public policies in a diversity of public forums. Its aimwould be to arrive at public and political agreement betweencompeting interests on matters of public concern, while at thesame time maintaining mutual respect between contendingparties.

In an impressive recent work, the Australian politicalphilosopher, Phillip Pettit, described the institutional andprocedural requirements for such democratic deliberation inthe following terms:

It would mean that at every site of decision-making,legislative, administrative and judicial, there are proce-dures in place which identify the considerationsrelevant to the decision, thereby enabling citizens toraise the questions as to whether they are the appropri-ate considerations to play that role. And it would meanthat there are procedures in place which enable citizensto make a judgment on whether the relevant consider-ations actually determined the outcome: the decisionsmust be made under transparency, under the threat ofscrutiny, under freedom of information and so on … Inarguing for an arrangement in which public decisionsare taken in a deliberative way, I make contact with theidea of a ‘republic of reasons’.5


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For deliberative democracy to fulfil its potential it is insuffi-cient to know abstractly or retrospectively that policies couldbe justified. The justification must be public to secure citizens’consent. The giving of public reasons will broaden the moraland political perspectives upon which citizens can form theiropinions to the betterment of public, democratic discussion.Reasons need to be public and reciprocally acceptable to fulfila condition of mutual respect that democratic deliberationseeks to achieve. Without publicity, the public reasoning thatfounds policy formulation might not be self-correcting in theway that a deliberative democracy would seek to encourage.

It follows that to be able to take part actively in ademocratic society, citizens must necessarily be aware of thefacts on the basis of which governmental decisions are made,of the competing arguments relevant to the adoption of thesedecisions, and of the reasons proposed as their justification.Policy considerations should be made explicit. They should beopen to inspection and criticism.

Publicity challenges ignorance, error and bias and allowsfor the shifting of positions crucial to reasoned political andethical choice. It serves to counter abuses of public power. Itcan illuminate dark corners of administration in whichcorruption may otherwise take hold.

Freedom of information is a democratic good for all thereasons just outlined. However, secrecy too can have itsdemocratic justifications. Some desirable policies may not becapable of implementation without secrecy. Privacy and confi-dentiality, each of which is dependent upon a measure ofsecrecy, ought also to be valued democratically. And the qualityof democratic deliberation itself may sometimes be prejudicedif conducted in full public gaze. So, a balance needs to bestruck. Justifiable limits to openness need to be defined. Thereare four such limits that my reasonably be advanced.




First, for the reasons already delineated, there ought to bea prima facie presumption in favour of openness. It is theperpetuation of secrecy that requires explanation. Exceptions,therefore, should be kept to a minimum and each shouldrequire a public justification. We should accept secrecy, then,only when its rationale is made public and reviewable. So,where exceptions to the principle of publicity are fullydiscussed, approved in advance, and subject to regular re-evaluation, they are more likely to be acceptable from thedeliberative perspective. It follows too, that there should be nosecrets about the existence of secrets. The implementation ofstrong freedom of information laws is one very importantmeans of meeting these general requirements.

Second, secrecy, in certain specific and defined circum-stances, may be justified on the pr inciple of necessity.Necessity, for example, may relate to a need to protect govern-ment policies and plans in the making and to protect theconfidentiality of certain, critical sources of information.Similarly, necessity may require the protection of trade secrets,business information likely to prejudice commercial competi-tiveness, and other matters that are commercially sensitive. Ameasure of secrecy may reasonably be defended in the interestsof law enforcement, national defence and collective security.

Third, secrecy may be justified to protect personal dignity,autonomy and safety. To disclose private information in thepublic arena may cause substantial psychological and perhapsphysical harm. Where, therefore, a government requires thecollection of sensitive personal information, it assumes a corre-sponding obligation to protect it. The argument from personalintegrity, however, should be treated with caution whenextended from individuals to groups. It should be considerablymore difficult to claim the information may not be madepublic because to do so may adversely affect one’s identity as amember of a particular nationality or race, for example.


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Fourth, it is sometimes desirable to attach a measure ofconfidentiality to discussions in order to protect and facilitateprocesses of public deliberation themselves. The confidentialitynormally attaching to Cabinet discussions and documentsprovides the cardinal example. Premature disclosure of recordsof critical matters of state may prejudice the success of subse-quent endeavours to address them. Too open a discussionabout matters having a special sensitivity to specific sections ofthe community, proposed means to tackle the radicalisation ofsections of the Islamic community for example, may produceill-informed discussion, generate unnecessary hostility and fanundesirable prejudice. It may not be possible to hear anddetermine complaints where, as the result of premature infor-mation disclosure, the hearing is likely to become the subjectof popular tumult. In each of these cases, public deliberationwill be facilitated by the existence of quiet, a quiet that anappropriate measure of secrecy may effectively and hencedemocratically provide.

Having identified the reasons for which secrecy may bejustified, two final caveats should be entered. Each of thelimitations seeks to address the occurrence of a particular kindof harm. Before we accept the limitations, however, the claimthat the harm is likely, rather than potentially, to occur willneed to be made out. To overturn the bias in favour of public-ity, the harm itself must be established as significant.

Finally, even if a significant harm arising from documen-tary disclosure is likely to occur, the disclosure may neverthe-less still be contemplated where it will serve some competingand compelling public interest.

The ‘Cablegate’ disclosuresWith these general principles in mind we can return toconsider the ethical and policy issues that bear upon theWikiLeaks disclosure of a vast cache of US State Departmentbriefing documents.




It may help first to categorise the kinds of documentsmade public, a task made difficult by the fact that there wereso many. Guardian authors David Leigh and Luke Hardingsummarised the documents the newspaper was disclosing incollaboration with WikiLeaks as follows:

They highlighted the geopolitical interests and preoc-cupations of the US superpower: nuclear proliferation:the supposed threat of Iran; the hard-to-controlmilitary situation in Kabul and Islamabad. TheAmerican Embassy cables came from establishedpower centres (London and Paris) but also from thefar-off margins (Ashgabat, Yerevan and Bishkek) …They offer an incomparably detailed mosaic of life andpolitics in the early 21st century …

The cables discussed human rights abuses, corruption,and dubious financial ties between G8 leaders. Theyspoke of corporate espionage, dirty tricks and hiddenbank accounts. In their private exchanges, diplomatsdispense with the platitudes that characterise much oftheir public job; they give relatively frank, unmediatedassessments, offer ing a window into the mentalprocesses at the top of US power. The cables were, in away, the truth.6

Consistent with the preceding analysis, in the interests ofpublicity and conformably with the principles of deliberativedemocracy, it is best to begin with a bias in favour of thepublication of the State Department documentation. Severalrelevant considerations favour this view.

None of the Cablegate documents disclosed were classi-fied as ‘top secret’; 11,000 were marked ‘secret’. An additional9,000 were classified as not for disclosure to foreign govern-ments. Four thousand were marked as secret and not fordisclosure to foreign governments. The rest were eitherlabelled as confidential or were unclassified. An indication ofthe laxity that surrounded the security of these cables was thefact that no less than two million US Government officials hadboth the permission and means to obtain to them. Among


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these was a 22-year-old junior intelligence officer in Iraq,Private Bradley Manning, the person alleged to have leakedthe material to WikiLeaks. While the government clearly didnot intend that the documentation would be publicly dissemi-nated, it seems to have made only minimal attempts to protectit. That attitude tends to suggest that the US administrationdid not believe that the documents were of a kind whosewider disclosure might result in serious harm.

Next, WikiLeaks engaged in conduct already more thanfamiliar in journalistic circles. Governments leak all the time.Whistleblowers provide information confidentially to journal-ists as a matter of course. These disclosures may occur simplyto advance the interests of one or another faction withingovernment, or more crucially, to expose some aspect ofmaladministration, unethical behaviour, deceit or corruption.True it is that disclosures of these kinds may be unauthorisedor contrary to law, but their existence very commonly servesto draw governments and their officials publicly to account fortheir actions. Insofar as leaks inform public and politicaldiscussion to the betterment of the quality of governmentaladministration and parliamentary deliberation, they play theirpart in furthering democratic ends.

Certainly, WikiLeaks is different. The scale of its disclo-sures has been unprecedented, and the dissemination of theinformation obtained by technological means has meant thatinformation about the nature and quality of government canbe disseminated instantly and globally. Nevertheless, theprocess has been the same. Like any newspaper, and in this casein collaboration with major newspapers, WikiLeaks has actedas publisher of classified information in what it considered thewider, global public interest.

The fact that the Cablegate disclosures have been global hasintroduced a new and important element into argumentationconcerning the public interest. In Western democratic countries,the process of leaking and the concomitant protection of




journalistic sources throw up occasional new insights as to themeans and ends of government. Only rarely, as in the case ofthe Watergate scandal and the release of the Pentagon Papers,has such material cast significant new light on issues of publicconcern and, in consequence, changed the direction ofgovernment or resulted in its replacement. In the presentinstance, however, things have been different for one veryimportant reason. The documents publicly released related notonly to the distortions and aberrations of Western govern-ments but also to the cruelties, lies and abuses of autocraticregimes in other parts of the globe. While a case can be madeagainst the unauthorised release of internal governmentaldocuments in the United States, that case is far more difficultto justify when the disclosures illuminate secrecy, repressionand corruption in dictatorial regimes. The case for publicity inthose circumstances is next to unarguable, even if some collat-eral damage might be caused to diplomatic relations.

The more general argument for the revelation of the USdiplomatic cables is straightforward. Diplomats work fordemocratically elected governments of which the United Statesis one. These governments are elected by and responsible to thepeople. If democracy is to work effectively, and if governmentsare properly and effectively to be held to account, people mustbe able to access sufficient information to comprehend what isbeing done in their name. The idea of accountability is crucial.This principle requires that governments do much more thansimply present themselves for election once every few years. Ina deliberative democracy what is required is that governmentsengage consistently and constantly in a dialogue with theircitizenry. This dialogue can take place equally only if both sidespossess the information necessary to found their arguments andinform their decisions. Where there is a substantial imbalance inthe information available to the governors on the one hand andthe governed on the other, the requisite dialogue breaks downto the detriment of democratic deliberation.

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Crucial to this dialogue is the further condition that inthe exercise of accountability, governments provide intelligiblereasons for their actions. This does not mean that a reasonmust be provided for every action. But it does mean thatcitizens should be able to determine the foundation and crite-ria upon which decisions that directly affect them have beenmade. Access to information is the primary means throughwhich such reasons may be determined and evaluated.

The US cables concerned one of the most importantaspects of modern governance, that is, the conduct of foreignrelations. The prosperity and security of the nation and itspeoples is crucially dependent upon the success of this inter-national diplomacy. Subject to the exceptions to be discussedin a moment, in principle the greater the degree of trans-parency that can attach to diplomatic activity, the more sensi-tive and accountable to domestic concerns that activity islikely to become. There is little doubt that publicity arisingfrom the WikiLeaks’ disclosures made a substantial contribu-tion to such democratic accountability. Consistently with theinternational dissemination of information, that accountabilitywas owed and flowed not just to the citizens of the UnitedStates, but far more extensively to citizens hungry for infor-mation in every corner of the globe.

In his unauthorised autobiography Julian Assange madethe same point somewhat more stridently, as follows:

Information sets us free. And it does so by allowing usto question the actions of those who would sooner wehad no means to question them, no right to reply.WikiLeaks, for all its modernism and all its software, isa force for the upholding of liberty … We come underfire, very often, for upholding those principles thatmany of the governments that criticise us are elected touphold. We are a people’s bureau of checks andbalances, working internationally, and knowing that thethings governments and diplomats do behind closeddoors is entirely our business. The people elect them,pay for them, trust them and are bosses of them.7




Exceptions and exemptionsAnyone with even a cursory experience of government will beaware that its deliberations cannot be conducted entirely in theopen. A measure of confidentiality is required to facilitate effec-tive governmental planning, to guard operational intelligenceand to ensure that no harm comes to those with whomgovernment agencies interact. Considerations such as thesewere the first to be cited by the US administration in responseto the Cablegate releases. The official US spokesman put thegovernment’s position as follows:

We anticipate the release of what are claimed to beseveral hundred thousand classified State Departmentcables … that detail private diplomatic discussions withforeign governments. By its very nature, field reportingto Washington is candid and often incomplete informa-tion. It is not an expression of policy, nor does it alwaysshape final policy decisions. Nevertheless, these cablescould compromise private discussions with foreigngovernments and opposition leaders, and when thesubstance of private conversations is printed on the frontpages of newspapers around the world, it can deeplyimpact not only on US foreign policy interests, butthose of our allies and friends around the world. Therelease of the cables was ‘reckless and dangerous action’.The spokesman declared that it had put lives at risk.8

These are serious allegations that deserve closer scrutiny. In myopening analysis, I identified several exceptions that mightreasonably apply to the general rule in favour of publicity. Twoof these are particularly relevant here. First, confidentiality willproperly attach to internal governmental discussions where todo so is necessary to facilitate and protect inherently sensitiveconsideration of or negotiations concerning important mattersof state. Second, secrecy is necessary to protect the identity ofindividuals who provide information to government incircumstances in which it is understood that the information isgiven in confidence or where the provider may come to harmif the information provision is disclosed.


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Frank diplomatic exchanges between governments areessential to the effective conduct of foreign relations. Suchexchanges between governments may be affected detrimen-tally if diplomats engaged in bilateral meetings believe thecontent of their discussions or the opinions of the counter-parts about their meetings could become public at some laterstage. This is a legitimate concern, but it is one that should bequalified in several different ways. In most Western democraticcountr ies, freedom of information legislation operates.Diplomats conduct their discussions and record them, there-fore, in the knowledge that, except in relation to the mostsensitive of matters, disclosure may subsequently and lawfullyoccur. Their conduct is tailored to this contingency. Similarly,senior diplomats work in an environment in which it is knownthat occasional and sometimes damaging leaks may occur.While condemning and prohibiting such unauthorised disclo-sures, they will, nevertheless, adapt their discussion to cater forthe outside possibility of publication. This may be done eitherby framing discussion and reporting sensitively or by limitingthe way in which discussions are recorded. A reasonablemeasure of protectiveness is appropriate in the interests ofconstructive deliberation. The problem, however, is that thecloak of secrecy thrown over governmental discussion is all toooften too extensive. Far more documents may be publiclydisclosed without any harm caused to policy development orprogram implementation. This disclosure is all too often andtoo widely constrained by sweeping legislative provisionsprohibiting the dissemination of official information.

Further, in areas of considerable international and publiccontroversy, much will already be known about the outlines ofrelevant disagreement. The disclosure of documentation whichserves simply to confirm the existence and nature of thatdisagreement is highly unlikely to cause serious damage to theconduct of international deliberation. In the case of the




Cablegate documents, those who follow matters concerningdomestic politics and international relations intelligently andconscientiously were, for the most part, aware of most of issuescanvassed there. And the diplomats themselves were rarelytraversing new ground. Some of the personal remarks madeabout particular individuals were certainly embarrassing. Butembarrassment does not constitute sufficient reason to cloakinformation in unnecessary and unjustifiable secrecy.

In this respect, perhaps the sanest commentary about thecables came from the highly respected Australian diplomatJohn McCarthy. He expressed the view that 80% of politicalassessments and 90% of general economic assessments could befreely shared even though the documentation is an expressionof a government view. In an article in The Australian,McCarthy observed that:

The climate of inhibition is not in the national interest. Agood policy requires all sensible points of view to bereflected, representing different foreign policy and domes-tic interests. This means the relevant people need to beinformed of what is coming in and going out. A goodcable system does this. Over the longer term, the test inAustralia will be to create an internal culture wheregreater openness is seen as the avenue for better policy —albeit at the risk of the occasional leak or the odd embar-rassing FOI release. Over time, WikiLeaks could actuallygenerate a more open approach to managing foreignpolicy in democracies such as Australia.9

The second and more important qualification to the principleof publicity is that it must not lead to harm to those whoprovide information to government in confidence. It is on thisground that the Cablegate disclosures have been mosttrenchantly criticised. Here it is important to be reminded ofthe arrangements made in relation to the cables’ release. Thedocuments were not released initially by WikiLeaks. They werepublished, in collaboration with WikiLeaks, by five highlyrespected international newspapers — The Guardian, The New


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York Times, Le Monde, El Pais and Der Spiegel. The newspapersand WikiLeaks agreed that the cables should be publishedprogressively and only after they had been carefully scrutinisedso that any reference to individuals who may come to harm asa result of the publication would be redacted. After havingmade the redactions it deemed necessary, The New York Timessent the cables it proposed to publish to the US administra-tion. It suggested additional redactions, some of which weremade, but others were not. The Times alerted the othernewspapers to its redactions and to the administration’sconcerns so that they too might follow suit. The Guardianfollowed a similar course. The essential pr inciple whichgoverned the making of redactions was described by The NewYork Times as being that ‘we withhold secret information thatwould expose confidential sources to reprisals or that wouldreveal operational intelligence that might be useful to adver-saries in war … On the other hand we are less likely to censorcandid remarks simply because they might cause a diplomaticcontroversy or embarrass officials.’

The sheer volume of the documentation disclosed inCablegate makes it impossible to say that no person has beenor will be harmed as a result of the disclosures. What can besaid first, is that no such harm has been intended and, second,that at the time of writing no person has yet been identified ashaving been injured by the cables’ release.

The public interestI noted in my earlier analysis that even if some harm to thepractice of governmental deliberation were reasonably likely tooccur as the result of publicity, that harm must necessarily beweighed in the balance against any competing and compellingpublic interest in the disclosure of information concerned.Again, given the scale of the disclosures, it cannot reasonablybe said that the release of every single cable can be justified inthe public interest. Many may have failed that test.




What cannot be doubted, however, is that taken as awhole, the Cablegate disclosures have given citizens in manydifferent parts of the world an unparalleled opportunity tolearn about and evaluate the work that its governments andtheir officials undertake on their constituents’ behalf in thepursuit of international diplomacy. That is a beneficial thing.That general benefit is compounded in this instance by therevelation in many countries of maladministration, corruptionand endemic human rights abuse. The public interest in theillumination of such practices cannot be doubted. Among themore prominent examples of such practices have been:

• the revelation that the US administration ordered that seniorofficials of the United Nations, including the Secretary-General, be spied upon contrary to international law

• the existence of arms trafficking, money laundering, personalenrichment extortion, kickbacks and the establishment ofsecret offshore accounts by a combination of organisedcriminals and governmental officials in Russia

• the identification of large scale corruption in the adminis-tration of the government of Afghanistan

• the siphoning of billions of dollars from governmentcoffers by the President of Sudan, Omar-al-Bashir

• the sclerotic, corrupt and repressive activities of the formerTunisian regime of President Zine Ben-Ali

• the alleged infiltration by Shell of almost every senior levelof the Nigerian administration

• the alleged attempt by the chemical multinational, Pfizer, tounearth evidence of corruption against the Attorney-General of Nigeria as a means to persuade him to droplegal action over one of its drug trials in the country.


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The full list is far more extensive than this. In combination theevidence of corruption and abuse revealed provides in and ofitself the most formidable public interest justification for theWikiLeaks disclosures. In its editorial justifying publication,the New York times summarises the case eloquently:

But the more important reason to publish these articlesis that the cables tell the unvarnished story of how thegovernment makes its biggest decisions, the decisionsthat cost the country most heavily in lives and money.They shed light on the motivations — and in some casesduplicity — of allies on the receiving end of Americancourtship and foreign aid. They illuminate the diplomacysurrounding two current wars and several countries, likePakistan and Yemen, where American military involve-ment is growing. As daunting as it is to publish suchmaterial over official objections, it would be presump-tious to conclude that Americans have no right to knowwhat is being done in their name.10

It is not just Americans, but citizens across the globe whoseknowledge of government and capacity to participate moreeffectively in influencing governmental decision-making thathas been strengthened by these extraordinary and extensivedisclosures. Global democracy and deliberation have beenconsiderably fortified as a result.

Endnotes1 The Guardian, 30 November 2011. 2 Quoted in D Leigh & L Harding, WikiLeaks: inside Julian Assange’s war on

secrecy, Guardian Books, 2011, p. 199. 3 J Bentham, ‘Of Publicity’, in Essays on political tactics in the works of Jeremy

Bentham, J Bowring (ed), William Tate, 1839. 4 ibid. 5 P Pettit, Republicanism, Oxford University Press, 1998. 6 Supra. Note (ii) at p. 212. 7 J Assange, Julian Assange, the unauthorized autobiography, Text Publishing,

2011, p. 243.8 Office of the White House Press Secretary, 28 November 2010. 9 J McCarthy, ‘WikiLeaks should propel less secrecy at the top’, The

Australian, 13 January 2011.




10 The New York Times, ‘A note to readers: The decision to publish diplo-matic documents’, 28 November 2010.

�

Spencer Zifcak is President of Liberty Victoria and AllanMyers Professor of Law at the Australian Catholic University.He is a member of the Board of the Australia Institute and theCentre for Dialogue at La Trobe University and an ExecutiveMember of the non-governmental organisation Future Justice.He writes regular columns for the Legal Affairs section of TheAustralian.


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