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Floyd Abrams’ Abrupt About-Face

Floyd Abrams published an op-ed in the Wall Street Journal in which he argued that the content of leaked information should determine whether or not the publisher should be protected from prosecution under the Espionage Act. He pointed out that Daniel Ellsberg leaked only a portion of the Pentagon Papers and kept back four volumes of diplomatic communications because he did not wish to obstruct diplomatic efforts to end the Vietnam War. Mr. Abrams went on to blast WikiLeaks for releasing diplomatic cables and blames WikiLeaks’ editor Julian Assange’s conduct for dooming the chances of enacting a federal shield law.

This contradicts Daniel Ellsberg’s own statements in support of WikiLeaks and, moreover, is directly at odds with his position regarding “good leaks” and “bad leaks” during the whole Judy Miller fiasco.

In an interview with PBS’s Frontline Mr. Abrams discussed his defense of Judy Miller thusly:

[Q]… The other bad fact was that whoever was being protected apparently by Ms. Miller and Mr. Cooper wasn’t really a whistleblower, was apparently someone out to damage the reputation of a dissenter.

[A]… It’s true that in a situation in which what is involved is not a whistleblower exposing misconduct within the government, say, but someone within the government, particularly in a situation in which it could be said that the person’s using his position to attack someone else, in that circumstance it made it a still more difficult case. No question of that.

Now, my own view is that the law can’t and shouldn’t distinguish, and I would say journalists can’t and shouldn’t distinguish between good sources and bad, virtuous sources and unvirtuous ones. If a journalist grants confidentiality, I think the journalist has to keep her word.

[emphasis added]

It’s important to note here that whoever leaked the Collateral Murder video to WikiLeaks is clearly a whistleblower as the release of the video clearly exposed wrongdoing. Supposedly, it is the leak of the Collateral Murder video for which Pvt. Bradley Manning has been charged.  . . .

In his own book, Speaking Freely, Mr. Abrams argued passionately for the inviolate confidential source:

Despite the obstacle presented in the Farber and Miller cases—from the start, our chances were significantly less than even in each—they were both ones in which promises of confidentiality had been made and, once made, had to be honored. Any other approach would have been inconsistent with The Times well established and consistently followed policy of resisting the efforts prosecutors and defense attorneys alike to force the revelation of the identity of its journalists confidential sources.  It also would have been inconsistent with the broader views expressed by Bickel and myself on behalf of The Times and other press entities in 1972 and repeated often thereafter: Only if sources are confident that their confidences will be kept, we argued, will they continue to confide in journalists.

[emphasis added].

It would seem that WikiLeaks is following the very creed that Mr. Abrams has preached for decades and is doing so in a very black-and-white, clearly demarcated way. The shield law protecting journalists’ privilege to report without legal repercussions was doomed by Judy Miller when she chose to protect someone who leaked classified information for a purpose unrelated to whistleblowing — a source who burned her and used her to disseminate untruths about the existence of weapons of mass destruction in Iraq.

If Pvt. Manning leaked the Collateral Murder video, is this leak in keeping with the best of whistleblower tradition? Should not this bolster the prospects for a shield law, or at least counter some of the harm done by Miller while she was being represented by Mr. Abrams?

Mr. Abrams complains that WikiLeaks “offers no articles of its own, no context of any of the materials it discloses, and no analysis of them other than assertions in press releases or their equivalent” but overlooks the fact that WikiLeaks has partnered with the New York Times, the Guardian-UK and Der Spiegel — all institutions with well known journalistic credentials. The decision by these major outlets to publish the cables does not appear to offend Mr. Abrams’ sensibilities.

As for the cables, according to the New York Times — Mr. Abrams’ frequent client — the cables have been redacted to protect diplomatic sources. If it wrong to publish these cables, why did the New York Times do so?

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.