There is a worldwide debate regarding the leaks of diplomatic cables attributed to Wiki Leaks Julian Assange. Have the leaks done harm or have they done good? Many believe that they have done some harm and some good and that the good outweighs the harm, especially in open societies with few secrets. Others disagree.
Now former US President George W. Bush has weighed in on this debate. He has said that Julian Assange, the founder of Wiki Leaks, "has willfully and repeatedly done great harm to the interests of the United States." He made this statement, through a spokesman, in explaining why he was cancelling a speech he had agreed to deliver to the Young Presidents Organization. He said he "had no desire to share a forum with" Assange, even though Assange was to speak by videoconference and they would not literally be sharing a platform or forum.
President Bush is, of course, not alone in expressing negative views about Assange and Wiki Leaks, and all citizens of the world should have the freedom to express their personal opinions on the leaking of diplomatic cables. This is a healthy debate that will continue to play out around the world, especially in the context of recent developments in the Middle East.
But when a former President states, categorically, that Assange has "willfully and repeatedly done great harm" to our country, such a statement has the potential to distort the processes of justice.
First, former presidents are aware of classified material not generally available to other participants in the marketplace of ideas. His "harm assessment," therefore is likely to carry more weight than other opinions expressed about the effects of Wiki Leaks on our national interest. It is as if the former President had said, "Trust me. I know. I've seen things you can't see. There really has been 'great harm.'" Those of us who have litigated national security cases, such as the ones that grew out of the publication of the Pentagon Papers, know that governmental claims of "great harm" are often overstated and prove in the end to be unfounded, but potential jurors may not have the experience necessary to assess such overblown claims. They are likely to assume that if a former president has said there was "great harm," he must know what he was talking about, because he had daily access to the most highly classified intelligence reports.
Even though we are a long way from any possible jury trial—if one were ever to occur—the kind of statement made by former President Bush becomes part of the atmospherics and its impact can never be fully known or quantified. That is why former presidents generally decline to offer comments about the possible subjects of ongoing criminal investigations.
The Bush statement could have a more immediate impact on investigative and prosecutorial decisions. The members of the grand jury secretly hearing evidence in the northern district of Virginia—deliberately selected by prosecutors because of the high density of military intelligence and government families in the area—could be prejudiced by the former president's assessment of the harms allegedly caused by the leaks, especially since grand jurors hear only the government's side of the case. And the military investigators who have just issued enhanced charges against Pfc. Bradley Manning—including "aiding the enemy"—may well have been influenced by their former Commander in Chief. Moreover, by declaring that Assange has caused "great harm" to our nation, the former president—a Republican—has thrown down a political gauntlet.
Can a Democratic President and Attorney General now be perceived as less protective of our national interests than a Republican President? Bush's statement threatens to politicize the ongoing investigations and prosecutorial decision by putting pressure on the current administration to be tough on Assange because of the "great harm" Bush says he caused.
Finally, the language, tone and context of the Bush statement threatens to make Assange into a Pariah—a dehumanized enemy undeserving of a hearing or a fair trial—in the eyes of those who admire the former president. Bush not only criticized Assange, he refused to associate with him, even at a distance. This "boycott" of Assange tends to lend credence to the far more extreme mischaracterizations and threats leveled against Assange by assorted politicians who have accused him of "treason" and demanded his execution and even his assassination.
There are strong constitutional, legal and policy reasons why Julian Assange should not be the subject of any criminal investigation or prosecution. These reasons relate not only to the rights of Assange and Wiki Leaks, but as well to the First and Fourth Amendment right of American citizens who follow Wiki Leaks and read the materials they have brought into the marketplace of ideas.
The danger is that if and when these arguments need to be presented in a legal context, those who must make the important decisions—prosecutors, investigators, judges, jurors, political figures and ultimately the general public—may be prejudiced by the kinds of gratuitous out-of-court statements made by former President George W. Bush and other past and current political figures. That simply is not fair or just.
I believe that Julian Assange and Wiki Leaks should not be brought to trial, as the New York Times and the Washington Post were not brought to trial after publishing the Pentagon Papers. But if there is to be a trial, it should be held in the courtroom and not be influenced by statements of the kind made by former President Bush.