Is the Crackdown on Wikileaks and Threats of Julian Assange's Arrest Exactly What He Was Planning?
Media speculation about the motives behind Wikileaks and its mercurial founder Julian Assange is somewhat entertaining in light of the fact that Assange has laid it out in great detail -- in essay form, no less.
Assange is an anarchist whose stated goal is to provoke an over-reaction on the part of the state that will expose its authoritarian nature, turn it inward in a spasm of paranoia and ultimately prevent it from functioning.
And he may get his wish. This week, Senator Joe Lieberman, I-Connecticut, persuaded Amazon to take down the “cable-gate” files it had been hosting on its servers. Reuters reports that “government lawyers working on the Justice Department investigation are trying to be ‘creative’ in their exploration of legal options” against Wikileaks and Assange. Rep. Peter King, R-New York, the incoming head of the House Homeland Security Committee, said Wikileaks should be designated as a terrorist organization. He wasn’t alone. Others, including an adviser to the Canadian prime minister, have called for Assange’s assassination.
All of this is part of a larger, and wholly irrelevant debate -- or series of debates -- over the importance of Wikileaks. Are these dispatches going to result in even more secrecy in the future? Will they cause a massive setback in diplomacy, leaving us only military options for influencing other states? Or maybe the cables will have a salutary effect, shining needed light on a murky and secretive function of government? Is secrecy a bad thing in and of itself? And what of Assange? Is he a dedicated whistleblower willing to risk everything to “speak truth to power,” or a malign narcissist whose goal is simply to turn himself into a worldwide media star.
The reason these debates are largely irrelevant -- and calls to do something about Wikileaks are dangerous -- is straightforward. Legally speaking, it’s virtually impossible to distinguish between an organization like Wikileaks and any other online media outlet -- publications like the Christian Science Monitor, or AlterNet.org. And, legally speaking, it’s virtually impossible to distinguish between someone like Assange and any working journalist hanging around the newsroom of your local paper.
Every single day, journalists try to induce insiders to release confidential information to them and every single day they publish that information. It’s the heart of reporting.
Wikileaks is a private operation, and Assange is a private individual, so whether or not you or I or the pundits or the White House likes what they’re doing is immaterial. The only question that should be asked is: did the release of “cablegate” break the law?
Both Politico and Reuters asked legal experts that question, and the answer is, in all likelihood, no. Wikileaks might have committed a crime had it been connected to a foreign government, but that hasn’t been alleged. According to Reuters, “Other parts of U.S. law make it easier to prosecute people for unauthorized disclosures of undercover U.S. intelligence officers' identities and classified information related to nuclear weapons and electronic eavesdropping …But there is no evidence that Assange or WikiLeaks has trafficked in materials that would fall under those statutes.”
Some have argued that the leaks are akin to shouting fire in a crowded theater, the classic exception to the right of free speech. It’s an argument that might hold up in a third-rate publication’s opinion pages, but would be laughed out of any court in the country, because the Supreme Court has interpreted the exception very narrowly. It only applies to “advocacy of the use of force or of law violation ... where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That there may be something in thousands of published documents that could hypothetically cause someone harm somewhere in the world at some point in the future doesn’t cut it. And government actions to proscribe what the press may publish must be held up to “strict scrutiny” -- a very high legal standard.
But the embarrassment the leaks are causing the establishment is so great that there is intense pressure on the Justice Department to “be ‘creative’ in their exploration of legal options.” And to do that, they’ve tried to create a false distinction between traditional journalism and what Wikileaks does.
State Department spokesman P.J. Crowley told CNN that the idea that Assange is a journalist is "nonsense.” "Julian Assange is an anarchist and we’re not going to let him succeed,” Crowley said. And Pentagon General Counsel Jeh Johnson said on Thursday that in his “personal opinion” Wikileaks “is not media.”
According to Politico’s Josh Gerstein, “Officials, including Attorney General Eric Holder, also seem to be trying to separate Assange from the journalistic herd--moving to diminish any sympathies members of the press might have for Assange by suggesting that his actions are altogether different from those of reporters.”
Holder offered up a subjective criterion for what makes a journalist. "One of the distinctions that I draw between...some of the people, organizations involved in this and others are that some have acted, I think, in a responsible way."
So those calling for something to be done to punish Wikileaks are in fact advocating the position that any media outlet that, in the opinion of the Attorney General, publishes something “irresponsibly” can be subject to similar sanctions.
That’s an awfully slippery slope in a democracy. But judging by the volume of those shouting that Wikileaks is some kind of terrorist organization, Assange may yet get the over-reaction he seeks.