At first, the more I read and thought about Wikileaks, the more
difficult I found it to know what was the ethical path to take with respect to
it and its perpetrators. Ultimately, I landed in the unfamiliar position of
agreeing with Hillary Clinton. As she said, Wikileaks is neither laudatory nor
brave. On balance, it is a force for serious harm even allowing that it could
entail some good. I will show why I believe that in this article.

As an ethicist, I find the Wikileaks moment in our history
fascinating, if frustrating, because of the layers of difficult-to-answer
questions it creates in our quest for ethical guidance. Some of these questions
arise from the technoscience that makes Wikileaks possible as a global
phenomenon. Others come from the compounding difficulty, though by no means
impossibility, of finding a consensus on the ethics that should guide us in an
era of ubiquitous moral relativism.

As the most basic level, though, they result from the
simple fact that good facts are necessary for good ethics and we don’t have all
the facts needed to fully assess how much harm the leaks will cause. The
possible consequences of the leaks have been the subject of intense disagreement.
Predictions have ranged from the leaks having no serious consequences to their
undermining “the functional integrity of the whole
Western security apparatus… [on which] our very survival depends”. At the
further end of the spectrum of possible harms, our civilization itself is seen
as being under attack by those who regard the leaks as “the 9/11 of
international diplomacy” that may precipitate a world war. In between is
the growing consensus that the leaks, at the very least, have the potential to
cause serious harm to Western nations and their allies to the advantage of
their enemies.

Working out the ethics of Wikileaks is also difficult
because it makes a difference whether or not we see ends as justifying means.
Julian Assange, the Wikileaks founder, obtained the leaked documents from a
trusted person who had access and stole them. If we believe that this means of
obtaining the information was fundamentally wrong, and that even good ends—let
alone seriously harmful ones—do not justify using wrong means, then using that
information would be unethical. If, on the other hand, we believe that
laudatory ends can justify unacceptable means and we regard the Wikileaks as
having such ends, we might see use of the information as ethical.

If we do regard Assange’s conduct as evil and capable of
causing catastrophic consequences, what of others who make use of the Wikileaks
information? Are they complicit in the evil? Much depends on whether their use
of the information is sufficiently disconnected from the evil such that it is
not tainted by it. This is a distinction with real world antecedents and
implications. It has been considered in relation to using medical information
that resulted from the horrific Nazi human medical experimentation. But,
assuming for the sake of argument that the Wikileaks conduct is evil, the media
and web servers who are disseminating the information are not parties coming
onto the scene after the evil conduct has been undertaken. They are playing a
direct and active role in that conduct. They are co-evildoers. The ethical
repercussions of this in our media-driven world could be staggering.


Layers of harm

In considering the ethics of Wikileaks, we must keep in
mind that what is and isn’t ethical can differ at different levels of analysis.
These levels are the individual (micro), institutional (meso), societal
(macro), and global (mega). All of them are relevant in the case of Wikileaks.
Something that might pass ethical muster at one level might not do so at
another. For instance, freedom of speech might justify disclosure of certain
information at the level of individual rights. The harm that disclosure would
cause at all the other levels would make it unethical at those levels, however.

We can also distinguish threats to individuals, which
bring into play the criminal law, from threats to a whole society, which raise
“war and peace” issues. Wikileaks presents both kinds of threats.
Unlike the former, the latter threats are not decided within the limitations of
a criminal code, nor on ethical grounds that pertain to persons as individuals.
In undertaking analysis of situations that raise both these kinds of threats,
as Wikileaks does, we must be careful not to confuse the State with the Person.
To apply moral standards to the State that properly apply only to the
individual, and sometimes even vice versa, is an error. In ethics, such
distinctions are crucial. There are ethical principles that apply to secular
government but they are not necessarily, and sometimes cannot be, the same as
those that apply to individual persons.

As these considerations indicate, an enquiry into the
ethics of Wikileaks might provide some insights about how we should handle the
situations the leaks have created. So, here are some of the questions we could
ask in undertaking an ethical analysis of Wikileaks.


The man at the centre

How should we characterize the ethics of Assange’s
conduct? That depends, first, on whether it is beneficial or harmful.

Assange says his goal is justice. He asserts that justice
requires transparency and revelation of corruption, which is what he sees Wikileaks
accomplishing.

Some people, including major media such as the New York
Times and The Guardian newspapers, must see the leaks as beneficial,
overall, despite their putting at serious risk the lives or safety of some
identifiable people and, possibly, the present or future safety of some
societies. Their statements indicate that they believe they’ve reduced any risk
of harm to an acceptable level by redacting certain information in the leaked
documents.

And, one assumes, they must also see Assange’s and their
own conduct as ethical, despite the documents having been obtained illegally.
How else could they justify being complicit in his actions by facilitating the
distribution of the Wikileaks information? Do they regard their assistance as
an exercise of freedom of the press and freedom of speech? If so, moves to
restrict the publication of Wikileaks documents would involve ethical
considerations at institutional, societal and global levels.

At the other end of a spectrum, others see Assange’s
conduct as extremely harmful to the extent that they accuse him of treason,
sedition, sabotage, espionage and terrorism. Canadian journalist David Warren
neatly summed up this view of Assange when he called him “wiked”. In considering what an appropriate
response to Assange is, some commentators have even proposed that, given the
stakes, assassination is not an outrageous consideration. Assange has spoken on
the record to say that the people making such proposals “should be charged with the crime of
incitement to commit murder”.


Putting lives at risk

These commentators believe Assange’s conduct has placed
the lives of many innocent people at risk or already resulted in their deaths,
and that it will continue to do so as he presses on with Wikileaks. They argue
that “Assange and Wikileaks have advanced, and are continuing to advance,
the interests of very evil regimes against the interests of (relatively) good
ones” and conclude that “the consequences of emasculating the U.S.
diplomatic and intelligence services are horrendous.”

Even taking into account the differences that exist
between individual level ethics and State level ethics, any order from a State
authority to kill Assange could only, if ever, be ethically and legally
justified if it came within the strict parameters of legitimate self-defence
necessary to save human life. And that would only be the case, if Assange,
himself, posed an immediate and direct threat to human life and if killing him
were the only reasonable way to alleviate the threat. Assange’s conduct does
not fulfill the first requirement and even if it did, the threat can be
eliminated other than by killing him. He is already in custody on allegations
of sexual assault. He is available to be tried for any crimes he has committed
with regard to Wikileaks.

Such a prosecution might not succeed, however. Attempts to
prosecute Assange in connection with Wikileaks, at least in the United States,
would likely fail because there would reportedly be “insurmountable legal hurdles”.

Moreover, to accept that an order to assassinate Assange
could be ethical would involve setting a precedent that we are justified in
sidestepping the normal processes of justice and the rule of law. Such
sidestepping would itself be a serious harm to society. As well, and not
insignificantly, it would brush too close to the horrific practice of Muslim
clerics issuing edicts to kill those considered guilty of blasphemy.


Brave new cyberworld

Might Assange’s conduct also be characterized as a form of
cyber-terrorism? The primary goal of terrorism is to disrupt the societies that
are attacked and make them fearful. Wikileaks will result in the disruption of
diplomatic exchanges that can be crucial to protecting our societies. It will
provide information to those who would do us harm and could assist them in that
goal. Finally, it could harm relationships with our allies, all of which could
make many of us justifiably fearful. One problem here is that our laws on
treason, sedition and so on, have not been updated to take into account
possibilities such as Wikileaks that are opened up by the cyber-world.

A stark warning that Wikileaks delivers is the power of
one person using the new technoscience to have enormous impact, whether for
good or evil. This power is vastly augmented by convergence—the impact of the
combination of various technoscience developments of which the Internet is a
prime example. Assange’s conduct shows the grave threat that just one
individual can pose to societies, which is a valid fear in relation to
terrorism, in general, and bioterrorism or the use of small nuclear devices, in
particular. One terrorist working in his kitchen or home garage can create
weapons with enormous destructive potential.

The destructive capacity of contemporary terrorist acts
need not, however, involve the detonation of a bomb or use of other weapons of
21st century warfare. We must ask what threat Wikileaks poses to our general
“social capital”, the metaphysical entity that consists of the
“norms, networks, and trust [that we rely on] for cooperation and mutual
benefit . . . [and which] has enormous potential to enable people to act in
solidarity for the sake of collective goals”? The clear answer is that it
will likely damage every element of it.

Even giving Assange and his co-leakers the benefit of any
doubt regarding their claim that Wikileaks is a force for good, instead of
promoting collective good by augmenting social capital, then, Wikileaks
promotes collective harm by depleting social capital. Keep in mind such harm is
mainly, or only, to our Western democratic societies. It does not touch other
societies that reject our systems of governance, values, and way of life.
Indeed, Wikileaks is likely to assist them.


Co-conspirators

And what does Wikileaks reveal about the moral and social
consciences of its participants? Relatively recent research shows that moral
intuition and appropriate emotional responses play a role in making decisions
that are ethically sound. Might Assange have undeveloped moral intuition and
immature emotional responses? Might the same be said of those, including in the
media, who have assisted him? Are they morally and ethically retarded? In
Assange’s case, might this be associated with his being a “computer
nerd”? He has a background as a “hacker.” That—purposely
breaking and entering by electronic means—is where someone steps over the line
into truly criminal behaviour. It is thus also where “moral
intuition” comes to an end, assuming it was present initially.

Although, we work from a basic presumption that openness
and transparency are morally and ethically sound (governments and bureaucracies
should keep this presumption more clearly in mind and act accordingly), that is
not always the case. At the very least, we need to question whether the very
openness and transparency promoted by Wikileaks is, in fact, morally and
ethically sound. In doing so, we should keep in mind that just because
something is ethically acceptable in one situation, does not mean it is
acceptable in another. A nude man at a nude beach is acceptable; a man who
exposes himself to children in playgrounds is not. Both are showing the same
“equipment”. But, as the example shows, context can determine
criminality and the presence or absence of breaches of ethics.


An ethical analysis

So, where on the spectrum from ethically justified acts to
acting criminally, even evilly, does Wikileaks belong? That depends on answers
to such questions as: Are the Wikileaks democratic progress, or just
old-fashioned gossip in cyber form? Are they something much more heinous? Is
there any ethical rationale to justify revealing what was meant to be kept
private? Certainly, just the capacity of new technology to make these
disclosures possible is not ethical justification. Avoiding serious harm that
can’t be avoided in any less harmful way would justify breaching privacy. But
the breach of privacy involved in Wikileaks does not avoid harm. It inflicts
it.

And might Wikileaks be an extreme example of trends that
are now ubiquitous in our Western societies? We are societies largely based on
moral relativism. This is the concept that there are no absolute truths with
respect to what is right or wrong. Rather, that all depends on the
circumstances and, not infrequently, personal preferences.

Both as individuals and societies we espouse “intense
or selfish individualism”. Priority is given to individual rights, to
autonomy and self-determination, even in some cases when serious harm to the
community could result from doing so. Obligations to the community, if they are
recognized at all, are seen as weak. Such imbalance between individual rights
and community obligations reflects a climate of individual and societal level
narcissism—the world revolves around just me or my society.

What happens when we apply these concepts to Assange, and
to the media that have assisted him? In all probability, they believe they are
doing good in releasing Wikileaks. They are informing people. As they see it,
such information will augment those people’s power to choose (the right to
choose is the first, and sometimes the only, commandment of intense individualists).
And it’s possible they are, indeed, doing good in the case of some of the
revelations. But it seems apt to bring to mind an old saying in human rights:
“Nowhere are human rights more threatened than when we act purporting to
do only good.” The reason is that we overlook the harms that are also
unavoidably inflicted.

So, one important question in deciding on the ethics of
the Wikileaks is whether the world is a better and safer place because of them,
or a worse and more dangerous one. Here is where I find myself agreeing with
Hillary Clinton’s assessment. For while we do not yet know the full harm that
may come from the leaks, there is no evidence at all to show how they will
contribute to a countervailing good. Indeed, we have seen how the one good they
are overtly intended to achieve—an augmented state of openness and
transparency—is not in itself necessarily ethically justified. Worse, neither
Assange nor his Wikileaks colleagues have shown publicly any concern to balance
harms against goods which, at the very least, is recklessness—that is,
conscious unjustified risk-taking—if not intentional wrongdoing.

And Assange is not the only person whose ethics should be
scrutinized. Frequently, as in Wikileaks, there’s still an old-fashioned
transgressor involved. In this case, it’s the person who stole these documents.
What breaches of ethics did he commit? I’ve already queried the ethics of the
media, who are “associate leakers”, in relation to Wikileaks, but
what about their ethics, more generally? Ethical responsibility is like a cake
not a football: one person cannot throw it away and have someone else catch it;
everyone can have a slice and not all the slices might be the same size or have
the same icing or taste.

Let me end as I began: As I continued to read and think
even more about Wikileaks, I found it easier to know what was the ethical path
to take with respect to it and its perpetrators. I believe that, overall, Wikileaks
involves grossly unethical conduct, some of which is also illegal.


Margaret
Somerville is the Samuel Gale Professor of Law, Professor in the Faculty of
Medicine, and Founding Director of the Centre for Medicine, Ethics, and Law at
McGill University. This was first published on Cardus.

Margaret Somerville is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor Emerita in the Faculty...