Silenced soldiers

Yet a new military policy has revived controversy surrounding the program. On July 25, the online organization WikiLeaks published over 75,000 U.S. classified diplomatic cables in cooperation with The New York Times, the Guardian and Der Spiegel. According to a Dec. 8 memo from Col. Charles M. Evans, commanding officer of the 8th Brigade, U.S. Army Cadet Command, “using the classified information found on WikiLeaks for research papers, presentations, etc. is prohibited.” Students who participate in ROTC who use the diplomatic cables in any of their academic classes risk loss of security clearance and expulsion from the program.

This policy is disturbing for multiple reasons. First, it is counterproductive: forcing American soldiers to avoid public information that has a great bearing on foreign policy only serves to make them less informed and able to address the international challenges created by those same leaks. Yet even if the policy were beneficial, the military should not have attempted such interference with the academic freedom of U.S. universities and their soldiers.

Stephen Zunes, a professor of Middle Eastern studies at the University of San Francisco, recently wrote that professors are increasingly using information from the leaks in their curricula and assignments, forcing ROTC students to pick between their academics and future career. “I could make special accommodations for ROTC cadets,” he said, by creating special assignments and examinations without WikiLeaks references; “however, in doing so, I would effectively be allowing the military to control part of my curriculum.”

Some may claim that this policy is not a restriction on speech but rather just a stipulation of a government scholarship; students are free to use WikiLeaks information in their studies, but they won’t receive government money to do so.

Not only is this claim a poor interpretation of the First Amendment, it is actually contradicted by case law. Legal Services Corp. is a government-funded organization that provides lawyers to poor Americans in need of civil representation. The Supreme Court ruled in Legal Services Corp. v. Velazquez that the government couldn’t restrict its subsidized lawyers from helping clients challenging existing welfare law because the program was facilitating private speech. This decision was correct: the government has no business punishing or privileging particular types of speech, even with its subsidies and scholarships.

Yet the military still goes further, claiming that its WikiLeaks policy is not only legal, but also a reflection of federal law. In a recent memo to ROTC program leaders, the military claimed that “access, disclosure, and distribution of classified information by anyone without the authority to do so is prohibited by federal law.” The military is mistaken in making such a broad statement. Though the Espionage Act of 1917 prohibits the initial leak of classified information, it is unclear whether subsequent publications by the media are also illegal.

Are organizations such as WikiLeaks and The New York Times protected from prosecution under the Espionage Act? The Pentagon Papers are the most relevant precedent. When Daniel Ellsberg leaked internal Department of Defense reports on the Vietnam War to The New York Times, the paper was shut down by a federal injunction. The government attempted to prosecute the paper in New York Times Co. v. United States, but a federal judge ultimately declared the case a mistrial and no further prosecutions were tried. The Pentagon Papers decision is often cited as evidence that the media is protected when covering or republishing documents which have already been leaked. The military is incorrect to equate the criminality of the initial leak to that of its subsequent publication. Bradly Manning allegedly leaked the cables. WikiLeaks merely published them, committing the same crime as The Times, and is therefore entitled to the same constitutional protections as those of The Times.

Interestingly, the Pentagon Papers are an instructive example for a second reason. The document in question, a report titled “United States — Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense,” is itself still classified. According to the military’s interpretation of the Espionage Act, anyone who attempts to access those classified documents or aids another in accessing them is in violation of the Espionage Act and therefore of federal law. Yet it took less then a minute to find several books in the United States Military Academy Library at West Point that republish entire sections of that classified report. As there is no legal difference between republication of the Pentagon Papers and WikiLeaks’ republication of the initially leaked documents, the military itself should be prosecuted, or at the very least lose its security clearance. In fact, the Pentagon Papers retain a higher level of classification than do most of the “secret” cables.

The ROTC program provides dedicated and intelligent students amazing opportunities in exchange for their service to our country. Soldiers are being put at an academic disadvantage compared to students who don’t require scholarships. Making these soldiers pick between their academic freedom and career is not only wrong, but shows poor gratitude for the men and women who will use their education to defend our country.

Allen Paltrow is a freshman from New York, N.Y. He can be reached at apaltrow@princeton.edu.