As the whole world knows by now, several weeks ago, the New York Times was given a trove of some 92,000 classified documents about the war in Afghanistan by Julian Assange, the shadowy head of WikiLeaks. In exchange for advance access, it promised to hold them until July 25, the day it published a selection of them in a coordinated action with the Guardian and Der Spiegel. All but 15,000 of the 92,000 documents were also published on that day on the WikiLeaks web site.  

In the weeks before publication, a team of Times reporters was assigned to pore over the reports, trying to find out what they told us about the war. No truly picture-changing surprises have emerged from the documents so far. But as has now become clear—and must have been evident to the Times’s editors and reporters—the raw intelligence and after-action reports contained the names and locations of possibly hundreds of Afghans who had cooperated with NATO troops. 

In an editors note, the Times records that it itself scrubbed the secret documents to ensure that no names could be identified. At the request of the White House, it urged WikiLeaks to do the same.  Whether or not WikiLeaks attempted to conduct such scrubbing, it clearly did not happen. Those who were named now face the prospect of reprisals by the Taliban, including having their ears or their heads cut off. What is therefore becoming quite significant is the fact that the Times, as a price for getting advance access to the documents, sat for weeks on the most explosive revelation of all: Namely, that WikiLeaks was poised to publish material that held the potential to cost the lives of hundreds of people.  

Does that make the Times complicit? If the Times had reported the news despite whatever promises it made to WikiLeaks, could the terrible outcome have been averted?

In the famous 1931 Supreme Court case of Near v. Minnesota, the Supreme Court ruled that prior restraints of the press, not withstanding the strictures of the First Amendment, were permissible in some extreme circumstances.  “No one would question but that a government might prevent . . . publication of the sailing dates of transports or the number and location of troops.” There is no issue of prior restraint in this WikiLeaks episode; a restraining order against the foreign-based WikiLeaks organization by an American court would have been impossible to enforce. 

But the standard set in Near—permitting a ban on publication of information causing the direct loss of life—is certainly pertinent for evaluating the damage that has been done. Laws in a democracy are not just a mechanical system of sanctions; the Near ruling stands as a guidepost by which the press can be judged by the public and by which the press can judge and police itself.

Moral, not legal, questions are thus brought to the fore by the Times’s collaboration with WikiLeaks. Given what it learned, should the Times have kept its promise to Assange? Was the public interest served by its silence about the threat to human life and to the war effort that the impending leak could entail?