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Wikileaks and the Limits of Law and Patience

The ongoing de facto declassification of hundreds of thousands of formerly secret documents by Wikileaks and it’s leader, the androgynous accused sex offender Julian Assange, has received a lot of attention in the past weeks.

After being generally unconcerned when military secrets were revealed in the first document dump which was accompanied by the launch of the website Collateral Murder the press and the Administration are now aghast that the striped pants set is getting its comeuppance.

We don’t know the magnitude of the damage yet and probably won’t know it for years. At first blush the military damage looks modest if one discounts as many on the left do the fate of several Afghans who were cooperating with the United States — eggs, omelettes, etc. — and the diplomatic damage more severe.

Many are clamoring for the Department of Justice to do something. I am not among them.

There are a lot of lessons to be learned from this sorry episode.

First and foremost is that if a nation decides to have secrets it needs to take adequate steps to ensure they are safeguarded. Said secrets cannot be safeguarded unless in the custody of reliable people. By any standard the Army’s due diligence in this case was abysmal. The “patient zero” in this episode was a very unstable and troubled young enlisted man, Private Bradley Manning, who, for reasons I can’t fathom, had access to documents he had no conceivable reason to see thus violating the most basic security procedures. Even after he’d been reduced in rank and identified as a potential candidate for discharge for unsatisfactory performance he retained his clearance.

Manning, really, isn’t to blame for having access to these documents. This doesn’t absolve him of blame for having mishandled them but his chain of command deserves to be slow roasted over a low fire for all manner of slipshod management.

Manning is is jail and probably, according to reports, happily contemplating his “out” life in Leavenworth. So while we may disagree on what should be done to him I think we can be assured that all will be done to him that the military justice system will allow.

This brings us to the question of what to do about Wikileaks and not only Julian Assange but the coterie of techno-anarchists which provide its leadership and staff.

There has been an outcry for the prosecution of Julian Assange which apparently is being studied as seriously as the Holder Justice Department is capable of studying anything and the idea has gained the support of somone with whom I usually agree, Charles Krauthammer.

I don’t agree.

During the early days of the Iraq War a Spanish judge indicted three members of a US armored battalion for the accidental killing of a Spanish national. Another judge indicted former Chilean president Augusto Pinochet. Similar noises have been made in the past by various countries about indicting Henry Kissinger, Donald Rumsfeld, and President George Bush. We didn’t like it when foreigners attempted to indict our soldiers and political leaders and we shouldn’t follow this path.

In its final essence the Wikileaks case is very simple. A foreign citizen residing in a foreign country received documents stolen by an American from the US government. The documents were posted on a server located outside the United States. If we attempt to apply criminal law in this case we are treading a dangerous path in two particulars.

First, the application of US law, other than martial law, to foreign citizens outside the United States is new territory. Krauthammer points out FDR’s supervision of a kangaroo court that led six German saboteurs to graves in the potter’s field at Blue Plains. This is not really germane to the issue at hand. The saboteurs were captured by civil authorities on US soil. The best comparisons might arguably come from the trials of concentration camp guards in which the victims were not US nationals.

A second concern is criminalizing espionage in a manner that is likely to bite us in the rear at a later date. It is hard to see how one makes Assange’s acts illegal without also placing in jeopardy the operatives, and indeed the heads, of foreign intelligence services. Could the head of Israel’s Lekem be indicted for receiving materials provided to him by Jonathan Pollard? Could Robert Gates be indicted by a foreign country for receiving information stolen from them while he was head of CIA?

Assuming that we are able to adequately differentiate the culpability of an Nongovernmental Organization, so to speak, like Wikileaks from the activities of the Chicoms, do we want to do this? What is our position if another organization suddenly starts publishing Iran’s nuclear secrets?

So, at least in my view, pursuing Assange and Wikileaks judicially is a fool’s errand and it will inevitably result in an own-goal much in the way the reaction to the secrets divulged by Philip Agee resulted in the hapless Scooter Libby being indicted and convicted by a conscienceless prosecutor in a political bloodsport.

None of this is to say that Assange should go scot free. He shouldn’t. Neither should the Wikileaks advisory board or any of its 1,200 alleged volunteers.

Assange and Wikileaks has crossed a Rubicon which cannot be tolerated. If one goes back in history we find that groups like Wikileaks have been open to attack by the international community. Piracy, for instance, was stamped out by declaring pirates and their support networks hostis humani generis or ‘enemies of mankind.’

In more recent times, when this type of international solidarity has been stymied by the actions of major international power centers, nations have taken it upon themselves to hunt down enemies that have simply taken the fight too far.

In 1962, Israel undertook a campaign of assassination and intimidation, called Operation Damocles, against some of Werner von Braun’s colleagues who had taken employment with the Egyptian government. While it wasn’t a text book example of a successful covert operation the number of German designed missiles to hit Israel remains at zero.

In the aftermath of the massacre at the 1972 Munich Olympics, the Israelis again undertook a campaign to kill the instigators and their foot soldiers. A generally successful campaign was marred by the unfortunate case of mistaken identity at Lillehammer. But a clear message was sent.

In 1990, Canadian ballistics expert Gerald Bull was gunned down on the streets of Brussels. He was designing a long range super gun for Saddam Hussein and had turned down a friendly suggestion that he find other employment from several countries who were unhappy with this and other members of his client roster.

Currently we have seen the Stuxnet virus unleashed, targeted, it seems, at disrupting the centrifuges at the center of the Iranian nuclear program. Simultaneously, and perhaps though improbably unconnected, one top Iranian nuclear scientist has been killed and another severely injured in direct action operations.

In short, we are in an area where the law rightly and of necessity fails and we should not desire to see the law applied to this particular set of facts because in the long run we will be hoisted by this particular petard.

The solution is rather obvious and was proposed by my colleague lexington_concord a few days ago. Julian Assange, and I would argue every member of Wikileaks, needs to be hunted down like rabid dogs. It is necessary that for a period of time that Wikileaks be hit from highest to lowest levels by attacks against the servers hosting Wikileaks content, making them a very undesirable client, and against persons at every level of the operation with the intent of killing some and intimidating the majority.

I anticipate the waves of moral outrage over this traditional, tried, and true method of dealing with organizations which operate outside the rules of civilized society and I discount them completely. The administration has green lighted the extrajudicial killings of US citizens, or at least it has according to someone called Glenn Greenwald at Salon. The killing of foreigners has historically been a pastime for sovereign states even when constrained by what they can do to their own. If we are willing to whack the odd home- grown imam there is no reason Julian Assange and his merry band of anarchists should be safe.

The bottom line is that I don’t see how they have committed a crime. They have carried out an attack on the United States as surely as if they had flown a plane into Foggy Bottom. It is an attack that cannot go unanswered unless we want to see it repeated again and again.

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