Alan Dershowitz is no stranger to high-profile cases: He represented kidnapped newspaper heiress Patty Hearst after a robbery conviction, helped boxer Mike Tyson try to appeal a rape conviction and signed on to O.J. Simpson’s legal “dream team.” But never before has the famed Harvard University law professor had a client who upended the entire world of international diplomacy.
Dershowitz is serving as an American legal consultant to WikiLeaks, the organization that has made public thousands of leaked confidential and often sensitive American diplomatic cables and war logs. WikiLeaks made the announcement that Dershowitz would be advising its legal team on February 14. Though WikiLeaks and its Australian-born founder Julian Assange currently face no charges in the United States, they are gearing up for a potential fight in American courts.
“This is a case that will make new law in deciding not only how to apply the First Amendment but also the Fourth Amendment to the new age of electronic media and social media,” Dershowitz said in an interview with the Forward.
Dershowitz has played a prominent role in debates over security issues in a post-9/11 world, recommending sometimes tough and controversial approaches. He has endorsed the concept of national identification cards and suggested that special warrants could be issued that would allow the use of torture in “ticking bomb” scenarios.
Now, however, Dershowitz is representing a client who is widely accused of undermining American security interests on a massive scale. But Dershowitz said that there are multiple interests at stake.
“As a private citizen, I support the United States government’s efforts to protect our security. As a First Amendment lawyer, I also support the right of the media to publish material,” he said. “That tension is important for democracy.”
Legal experts say that prosecution of WikiLeaks or its principals could rely on the Espionage Act or conspiracy charges. U.S. Attorney General Eric Holder has not disclosed the target of his probe, but has said that there is “a very serious, active, ongoing investigation that is criminal in nature.”
As part of its investigation, the government recently sought to subpoena information on WikiLeaks from communication companies such as Twitter. The American Civil Liberties Union and the Electronic Frontier Foundation have opposed the move.
Meanwhile, Assange is currently in Britain, trying to fight extradition to Sweden where he faces rape charges.
The Dershowitz-WikiLeaks connection began between six and eight weeks ago, Dershowitz said. The Harvard law professor received a call from Geoffrey Robertson, who leads Assange’s London-based legal team. “He asked me if I would be willing to serve as a resource for him on American law,” Dershowitz said.
Already, Dershowitz seems eager to rebut criticisms of WikiLeaks and its frontman.
For instance, he takes issue with some of the negative characterizations of Assange offered by the executive editor of The New York Times, Bill Keller, in a recent essay discussing the paper’s dealings with WikiLeaks. “Assange is a very bright guy,” said Dershowitz, who has spoken with Assange via phone. “He seems to me to be very principled and very determined. He’s a man on a mission and his mission is transparency. I admire that. Every contact I’ve had with him so far has been very positive.”
While the potential WikiLeaks case may represent uncharted territory for American law, Dershowitz sees similarities to some of his past work. In 1972, he got involved in the legal tussles over the Pentagon Papers, representing Senator Mike Gravel of Alaska after the lawmaker read aloud from the classified Pentagon Papers — after they had been published, in part, in The New York Times and Washington Post — in his Senate subcommittee.
“My hope is that the United States government will see the light and will do what they did in the Pentagon Papers case,” Dershowitz said. “They decided not to bring charges against The New York Times and The Washington Post. I hope they realize that WikiLeaks is in the 21st century what The New York Times and The Washington Post were in the 20th century.”
But where Dershowitz sees similarities with the Pentagon Papers, others say that the comparison doesn’t necessarily work in WikiLeaks’ favor.
“Five out of the nine justices involved in the Pentagon Papers case suggested that they would uphold a conviction of the Times if the case was brought after publication,” said Gabriel Schoenfeld, a senior fellow at the Hudson Institute and the author of the recent book “Necessary Secrets: National Security, the Media, and the Rule of Law.”
Schoenfeld is referring to the landmark case in which the Supreme Court rejected the Nixon administration’s efforts to enjoin The New York Times and The Washington Post from publishing the Pentagon Papers. Whereas that case dealt with the issue of prior restraint, WikiLeaks has already released thousands of sensitive documents.
And there are also distinctions that can be drawn between WikiLeaks and the media institutions involved in the Pentagon Papers case. “WikiLeaks is not the leaker — but it’s not a major news outlet either,” said David Rudenstine, a professor at Yeshiva University’s Cardozo School of Law. He added that the outcome of any litigation “would have a very serious impact on information flow.”
WikiLeaks is also controversial because some of its initial releases did not redact informants’ names. “I have seen things that have jeopardized the lives of people who have spoken to American diplomats,” Schoenfeld said.
What does Dershowitz think about the issue of the names that were not redacted? “I don’t get involved in issues like that,” he explained.
“My general advice would be to… stay away from specific names, to stay away from information that on balance could do more harm than good,” he said.
While Dershowitz may have a wealth of experience tackling First Amendment issues, he will be playing catch-up when it comes to grasping 21st-century technologies such as Twitter — an area that, until now, his children and grandchildren have helped him navigate. Now, he says, he has access to experts, but he recalls the counsel of a young relative, who told him: “It’s not a twit, it’s a tweet. And if you say twit, you’re a twit.”
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