After failing in spectacular fashion to change my essay writing style this past few weeks, I'm going to give it another shot. The events of this week beg an interesting question: What should happen to Julian Assange and Bradley Manning?
As it stands, Bradley Manning faces 57 in military detention for the illegal dissemination of classified documents to an unauthorized source and is currently in custody awaiting a trial. Assange is currently on the run with an INTERPOL 'red-notice' on him for rape and sexual assault in Sweden. His current whereabouts are unknown. But, while the US has not yet leveled any charges against him, he remains on the run from what he perceives are foreign intelligence agencies sent to kill him.
Regardless of whether that is true or not, should it be? Should the United States, or other interested parties, attempt to kill Julian Assange? Ignoring people like Rep King who make outrageous statements about Wikileaks being a Foreign Terrorist Organization, it certainly seems that Assange is bent on trying to harm the United States through the illegal dissemination of classified materials without care as to their affect on innocent peoples. The US, of course, has laws and regulations prohibiting the execution of foreign nationals who are not making war upon the United States (how we get around targeted killings of terrorists) but let's suspend that for now. Is Assange making war on the United States? Is he guilty of treason?
Treason is the only crime specifically delineated in the US Constitution (owing to the definition of said crime being used and twisted by the Crown to prosecute US citizens). Article III Section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
However, as the US Code 18 U.S.C. § 2381 makes clear, this only applies to those "owing allegiance to the United States". Assange is not a US citizen and never has been, so it would be neigh impossible to make him fit that category. The other option is the 1917 Espionage Act which prohibits "supporting" America's enemies in wartime. Considering the Afghan War logs included the names of Afghan informants and the Taliban assured us they would be coming through them for names, it seems fair to state that by disseminating un-redacted classified information (something every responsible media outlet would do -- the names are immaterial to the story) Assange has underminded the war effort and supported our enemies.
But Assange is not a US citizen, and thus US law does not apply to him, correct? Well, no. The US has a long history of enforcing US law outside our borders (we arrested Manuel Noriega, after all) and bringing criminals to be tried in the US court system. But the Espionage Act is problematic because this was passed before the Supreme Court expanded First Amendment rights (NYT Co. v US) with regard to the dissemination of classified information. As well, this all pre-supposes that we are dealing with Assange within the confines of US law. To quote an Australian official who spoke with regard to Assange, "You operate outside the rules, you will be dealt with outside the rules".
So given the problematic nature of legal action and the clearly detrimental effect that the releases are having, should Assange be dealt with "outside the law," specifically, should be be killed or rendered back to Sweden or the United States for criminal prosecution?
The latter is the easiest do deal with. The political fallout from kidnapping a foreign national in a Western European country (one who will inevitably be painted as a first amendment martyr) would be far worse than that of the cables. And Sweden would probably be reluctant to prosecute someone who was kidnapped from another EU country and put on their doorstep. That would leave prosecution in the US under the Espionage Act which, as stated before, is problematic.
The former begs an interesting question. States do operate outside of the law, some more than others, and are often not caught or penalized for such an action. In fact, some of the time it is incumbent upon the state to operate outside of the law for purposes of keeping its citizens safe or other circumstances and it would be negligent for the state not to do as such. If the NYPD had caught a terrorist who knew the location of a hidden nuclear device in Manhattan, but the court threw the case out on a legal technicality, it would be incumbent upon the state to intervene and detain the suspect without charge. Extremely regrettable? Yes. But it is a valid tool of statecraft when the stakes are so high (and improbable, it should be noted).
So, that said: Does Assange merit such measures? Millions of lives are not at stake here, at the very worst case a few dozen informants will be killed but a few months later and nothing appears to have come of that. The leaks have not seriously imperiled the war effort and diplomatic relations (so far) appear to be unaffected. The only crime Assange is guilty of is disseminating classified information and being an unlikeable jerk. Plenty of spies have done far worse and some are walking the streets as I type. But unlike spies, Assange is not associated with any state actor and that makes him all the more dangerous. Spies feed their information to another state, one with which we can talk, negotiate and coerce; one that operates in a rational manner with identifiable self interests. Assange is a person, whose only apparent motive is to make as much information public as possible. This is done to achieve certain ends such as political change or embarrassment but it should be noted that all actions thus far lead to Assange being very ideologically motivated to the point where he will release any classified data he comes across.
So, if he is such an ideological radical, is he a threat that needs dealing with outside the law even if his actions thus far do not indicate as such? If someone leaked the names of US assets operating overseas, there's little doubt that Assange would publish that information and that many people would die or be prosecuted because of that. If it were discovered that Assange had such information, would it not be prudent of the US to arrange his death? It directly imperils the lives of US citizens operating overseas and protecting the lives of its citizens is one of the most important duties of any state. Even if that comes at the cost of killing a non-citizen.
But what if he published information of the location of US nuclear missiles? A serious security matter, to be sure but one that does not imperil lives. US nuclear assets are held under strict military guard and any attempt to steal or otherwise attain them would be neigh impossible; and we don't have any immediate threats who would be able to tactically use such information in any conceivable eventuality. So, if he's leaking very important information but information that doesn't imperil any lives, does that cross the line?
This could go on all day, and I'm sure very few are still reading, but the basic question boils down to this: When is it OK to release classified information that imperils lives? The answer is, as far as I'm concerned, that it is OK to release said information when you are doing it for a specific purpose that is in the public good. Just because something is secret, doesn't make it nefarious. Releasing classified information for the sake of releasing classified information is harmful to the state and her legitimate objectives. If there is evidence of another My Lai or of some nefarious plot, then I fully support any leaking to expose it. But there is a difference between "Whistle-blowing" to stop a specific act of questionable legality or morality and just releasing classified information because you have it. Unfortunately, this distinction seems to be lost on Mr Assange. Though we can take some comfort from this unfortunate business: If anything, these leaks have shown just how transparently and openly the United States has prosecuted two wars and operated diplomatically. That these cables reveal no major scandals or malicious deeds on the part of our government come as a great comfort to me. Ironically, the person most frustrated by this episode is probably Mr Assange.
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