National Security

Pentagon Options In Wake Of WikiLeaks Data Dump

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Melissa Block speaks with Jonathan Zittrain, an Internet law professor at Harvard Law School and cofounder of Harvard's Berkman Center for Internet & Society, about the fallout from the WikiLeaks scandal and whether the Pentagon will be able to prevent it from happening again.


From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.


And I'm Melissa Block.

The fallout continues from the release of tens of thousands of Pentagon documents by the website WikiLeaks. Last month, the site posted nearly 77,000 classified documents pertaining to the war in Afghanistan. WikiLeaks claims it has 15,000 similar documents that it has yet to publish.

Yesterday, the Pentagon demanded that WikiLeaks return all the versions of leaked documents and permanently expunge them from their website and their computers. Asking them, in the words of Pentagon spokesman Geoff Morrell, to do the right thing.

Mr. GEOFF MORRELL (Spokesman, Pentagon): If doing the right thing is not good enough for them, then we will figure out what other alternatives we have to compel them to do the right thing. I'm going to leave it at that.

BLOCK: WikiLeaks call that Pentagon statement a threat. Jonathan Zittrain joins me now to discuss what the Pentagon's options could be. He's an Internet law professor at Harvard Law School. Welcome back to the program.

Professor JONATHAN ZITTRAIN (Harvard Law School): Thank you.

BLOCK: And, Jonathan, when you hear Geoff Morrell talk about other alternatives, what do you take that to mean? Are there legal avenues that they could be pursuing here?

Mr. ZITTRAIN: Well, it puts the government in such an unusual position. I mean, normally, if you've got a document leak of this sort, it's going through a media organization and that gives you some organization that you're practiced in working with in some way and say: Well, maybe you can release this document, but please don't release that one.

And here the government is talking to a fellow named Julian Assange, who is not part of a formal media organization, who's already gone ahead and released thousands of documents and says he's got thousands more. And there you might say: Well, geez, you know, if you keep leaking these documents that threaten the security of the country, we'll come arrest you or something.

But that still gets very complicated, especially given that usually the entity in Mr. Assange's position is a media organization. And that would raise First Amendment concerns.

BLOCK: A media organization, too, that is based outside the United States, right? Would that affect legal control here?

Mr. ZITTRAIN: Yes. I mean, it makes the Pentagon Papers case of 1971 look so much more tidy. There, documents were leaked initially to the New York Times. The New York Times started publishing excerpts along with its own analysis. And the government, the U.S. government, went to court in America and got an injunction, which didn't last long.

But during that period, the New York Times respected the injunction. And even more important, understood conceptually that it was ultimately up to a court to decide what the contours of First Amendment protection were. And none of those features is really present here in the situation with WikiLeaks.

BLOCK: Short of, though, arresting the founder of WikiLeaks, could a court conceivably enjoin the website from publishing further documents?

Mr. ZITTRAIN: You could try to get a court to issue such an injunction, even one on American soil. Then it would be a question of, all right, how do we enforce the injunction if it turns out WikiLeaks is not interested in respecting it? Would that require coordination, say, with the Swedish courts? Would that require some situation in which his server inexplicably crashes or something?

And any of those outcomes has its own kind of ring of futility to it, because if the documents are up and available, then there's a chance for them to be mirrored elsewhere. And in essence, the cat is out of the bag. When they're not physical documents like this, it's a lot harder to think you've just got the one trove and eliminated it.

BLOCK: Right. Cat out of the bag, genie back in the bottle, you can think of any number of metaphors that really make this a little bit more complicated in the universe of the Internet.

Mr. ZITTRAIN: Yes. And it doesn't mean necessarily that that's cause for celebration. I mean, there's, I think agreed by almost everyone involved, including many government actors, that there's way too much classification going on out there. It's too easy to classify a document and there isn't much attention given on the other end 10 years later, say, to declassifying stuff so that the people, whether it's American citizens or others, can get a sense of the workings of a public government.

BLOCK: I want to ask you about another thing that the spokesman, Geoff Morrell, said yesterday. He said the documents don't belong to WikiLeaks or anyone else. They are the property of the U.S. government and we are asking them to return stolen property. Is he right about that? Would you consider this stolen property?

Mr. ZITTRAIN: Well, stolen property is so tricky. It's hard to pin down a lawyer on exactly whether these bits, these digits consider property of the government. And, in fact, for intellectual property, oddly enough, the U.S. government's own laws say that the outputs of the federal government are not subject to copyright. So, it's not the best metaphor.

But the way in which I think to make sense of it is to think about the shoes that haven't dropped yet. WikiLeaks says, and it appears the government believes it, that there are thousands more documents that it has held back precisely because even WikiLeaks agrees they are very sensitive.

And if that's the case, says the government, you know, you're not in a position, WikiLeaks, to be having custody of them. Your whole point is to leak stuff. So, really, if you want to do the right thing, as the government says, you should be destroying those copies and helping us inventory that which has been lost.

BLOCK: I've been talking with Jonathan Zittrain. He's an Internet law professor at Harvard Law School. Professor Zittrain, thanks very much.

Mr. ZITTRAIN: Thank you.

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