Will the U.S. Indict the Wikileaks Leader?

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By Roger Armbrust
Special to the Clyde Fitch Report

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Although the U.S. government would undoubtedly love to find an American felony law which WikiLeaks founder Julian Assange has broken — then extradite, try, convict and jail him — it appears that time has not yet arrived.

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According to a Congressional Research Service (CRS) report issued last month, government precedent has been not to prosecute anyone in Assange’s journalistic position for having leaked classified information publicly.

“Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it,” explains legislative attorney Jennifer K. Elsea in her Dec. 6 CRS report, “Criminal Prohibitions on the Publication of Classified Defense Information.” “There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.”

Since Assange is an Australian activist and journalist, Elsea further points out,

“To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.”

According to The New York Times, Attorney General Eric Holder has stated that the government is conducting “a very serious, active, ongoing investigation that is criminal in nature” regarding Assange. President Obama ordered that last summer, when WikiLeaks began releasing classified Pentagon documents regarding the U.S. invasions of Afghanistan and Iraq.

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But more recently, that dramatic stance has lessened as U.S. officials softened their view of the seriousness of Wikileaks’ revelations. Times reporter Elizabeth Bumiller wrote in October that U.S. Defense Secretary Robert M. Gates had sent an Aug. 16 letter to Sen. Carl Levin, chairman of the Senate Armed Services Committee, diffusing the threat of the WikiLeaks Pentagon-document revelations.

In his letter, Gates told Levin, “…the review to date has not revealed any sensitive intelligence sources and methods compromised by this disclosure.”

Times blogger Robert Mackey recapped the Bumiller report in his Jan. 19 post where he wrote about the State Department also judging WikiLeaks’ other mass release of diplomatic cables as basically unharmful to security. Mackey wrote that an unnamed Congressional aide told Reuters the leak “was embarrassing but not damaging.”

Those two news reports would deem to dampen any Obama Administration efforts to go after Assange in court or have him extradited to the U.S. When added to precedence cited by attorney Elsea in her CRS review, a government case would seem even weaker.

But that’s just so far.

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If other cables or documents are published, the government would study them to see if the WikiLeaks founder or others might be culpable. Elsea’s CRS report lists possible specific statutes which might apply, including the federal Espionage Act.

Assange, meanwhile, has his own problems overseas. He has been arrested in England, and is fighting extradition to Sweden on a warrant for alleged sex offenses. The timing of the arrest seems to smack of a family of Big Brothers seeking to down the Little Guy Who Roared. Time will tell if Assange has committed crimes or been set up.

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Meanwhile — despite the U.S. government now playing it down — Assange’s actions with WikiLeaks have created a hot plate that’s scorching authority worldwide, causing governments and freedom advocates to examine their responsibilities in the age of digital information flow.

We’ve come a long way technologically since 1971, when Daniel Ellsberg stooped over a cranky copy machine, snailing out piles of the Pentagon Papers to sneak to the press. In 2010, Assange was able to globally distribute thousands of documents to limitless viewers by basically clicking a mouse.

Yet the struggle for freedom of information hasn’t changed. It’s only become more complex. During the Vietnam War, the government’s attempt to quell the public release of the Pentagon Papers saw a defiant effort by America’s major newspapers. When the U.S. Supreme Court, at President Nixon’s behest, ordered The New York Times to cease publishing the Ellsberg-leaked documents, other papers took up the cause and printed them. After 15 days, the high court ordered the Times could again begin publishing them.

With the WikiLeaks releases, news organizations picked up the information. But the situation became more complicated, and volatile, via the Internet. When British police arrested Assange, and a Brit court denied him bail, Wikileaks supporters internationally began digitally tossing bugs into a number of corporate websites, either shutting out those attempting to do business, or slowing access to a crawl Eventually, Assange was allowed bail.

The cyber attacks on the corporate sites by WikiLeaks supporters must have the Obama Administration considering what might happen should the U.S. extradite Assange, or prosecute anyone else involved in the leaks. Would such action ignite another round of cyber attacks on American businesses, which have been struggling through two years of a tanked economy that’s been scraping out of its abyss? Could the earlier cyber attacks have only been a test run, with plans for a larger assault in the offing? Could the primary barrage have inspired other digital guerillas to come down from the hills and join the WikiLeaks efforts? This past week Al Jazeera released information about leaked cables from several sources regarding negotiations between the Palestinians and Israel, a sign that the WikiLeaks activities could be inspiring similar efforts from other whistleblowers.

This international spread of leaks could be creating the potential for an even more complex conflict in controlling the flow of information, even a long cyber war.

Such an occurrence would no doubt provide the government fuel to take dictatorial control of the Internet, which is a threat that digital democracy advocates have already been fighting against for years. Note the net-neutrality controversy currently taking place in Washington.

What could be looming for us, from 2011 on, is a decade of real digital revolution, involving the public’s right to know and to freely communicate ideas and opinions.

Then again, what more could government expect? After a decade in which the Bush Administration and Congress invaded Afghanistan for gas and oil (see “Obama, Congress and Our Afghan Reality“), lied about weapons of mass destruction to invade Iraq, allowed Dick Cheney’s Halliburton to rake in billions of dollars off those two quagmires, scrapped habeas corpus by establishing Guantanamo and a network of secret torture-prisons, ignored regulation of the finance industry leading to a world economic meltdown, and the Obama Administration and a new Congress following in many of those footsteps, government surely knew some world citizens still craving freedom would revolt. And the cyber eggheads outside government would prove the most dangerous at efforts to shutting down the military-industrial complex.

If you’ve any question how far we’ve come toward Orwell’s Big Brother existence, check out online Frontline’s “Are We Safer” which aired Jan. 18 on PBS: a look at the National Security Agency’s ever-growing terrorism-industrial complex.

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Seeing that could tell us that the struggle for freedom may be too late. Or it may just be beginning. As great legal cases, the press, art, literature, theater and films often remind us, it all depends on the individual’s spirit.

Roger Armbrust is editor-in-chief of Parkhurst Brothers, Inc., Publishers, and its Our National Conversation book series. Armbrust’s views do not necessarily represent those of The Clyde Fitch Report.