Over the past few days, I’ve witnessed some confusion on the possibility of the United States government taking action against WikiLeaks for any potential illegal action they might have committed in their recent divulging of thousands of secret State Department cables. As a result, I thought it would be worthwhile to take a minute and clear up some misconceptions.
Many WikiLeaks supporters are currently up in arms, saying the United States has no grounds to prosecute the organization or its founder, Julian Assange — and they may be right about that. The fact of the matter is, like all criminal cases, it will depend on what the government can prove in a court of law.
The problem with many of the WikiLeaks apologists’ arguments is that they’re often predicated on a deep misunderstanding of a landmark Supreme Court decision — New York Times Co. v. United States, or the “Pentagon Papers” case. According to the arguments I’ve heard, WikiLeakers believe the precedent set by the court’s Pentagon Papers ruling — which held that the government could not legally prevent The New York Times from publishing a news story about leaked top-secret military documents — also prevents the government from pursuing legal action against Assange and/or WikiLeaks in this latest snafu.
On the surface, this seems like a reasonable line of argument. However, as with most things, we need to dig deeper to really understand the forces at work here.
Most importantly, we need to understand what the government is considering charging Assange for. (They haven’t actually done anything yet, to the best of my knowledge.) They’re not investigating him for possessing the documents or posting them online or even giving them to media outlets around the world. None of those activities are the focus here. On the contrary, the Justice Department is currently investigating exactly how Assange got those documents and if he or his organization became accomplices to a crime in order to obtain them.
So how do we determine that? What would Assange have to do to be considered an accomplice to a crime in this case? Well, this is where it all starts to get a bit hairy.
Let’s start with what we know. We do know the documents were allegedly obtained by U.S. Army Private Bradley Manning, who used his security clearance to gain access to the classified documents and subsequently downloaded them to a data storage device (I believe it was a blank disc labeled as a Lady Gaga CD, funnily enough) without authorization and eventually disseminated them to the general public through Assange and WikiLeaks. The act of stealing and exposing those files is considered treasonous and illegal under U.S. law, and Manning is now being detained for that alleged crime.
The question the Justice Department is trying to answer in their current investigation is just how involved Assange was in the the young private’s crime — or, essentially, when he knew about the leak and how involved he was in actually stealing the documents. If Manning acted alone in accessing and obtaining those documents and then brought them to Assange after the fact, WikiLeaks is in the clear and the Justice Department doesn’t really have a case.
On the other hand, however, if Assange was involved in the theft from the beginning and coordinated with Manning throughout the commitment of his crime, then everyone’s favorite blonde-Australian-not-named-Nicole-Kidman is in some trouble. If the Justice Department can ultimately prove that Assange was in contact with Manning about leaking those documents prior to the crime being committed and was even tangentially involved in aiding and abetting him throughout that illegal act, then Assange is complicit in Manning’s crime.
That’s really what this all boils down to — what Assange knew and when he knew it. If Bradley Manning randomly decided one day that he was going to steal a bunch of secret State Department cables and then dropped them in Julian Assange’s lap after the fact, WikiLeaks is clean as a whistle. However, if the Justice Department can prove that Manning contacted Assange (or vice versa) prior to stealing the documents and said, “Hey, I can get this information,” and Assange essentially replied, “Great, how can I help?” then they’re both toast.
Which brings us back to the Pentagon Papers. WikiLeaks apologists say Assange should be insulated from any criminal charges because, like the Times during Vietnam, he is a member of the press who is simply publishing information in the public interest and the Supreme Court says there’s nothing illegal about that. And that could perhaps be true (maybe) — if it weren’t totally irrelevant.
First, WikiLeaks is a) not a news organization, and b) it wouldn’t matter even if it were. WikiLeaks is not like the Times or The Washington Post or even The Huffington Post. They are not fulfilling a newsgathering, journalistic role as defined by the court. The press publishes synoptic reports about newsworthy events of the day. WikiLeaks dumps raw info and data onto the Internet and then disseminates it to actual news outlets for the aforementioned synoptic reports. I’m not saying one is better than the other, but they are very different roles.
WikiLeakers would probably disagree with me on that — and that’s perfectly fine because, for the intents and purposes of this discussion, it doesn’t matter whether WikiLeaks is a member of the press or a bunch of cyber-hooligans or a loose-knit coalition of unemployed birthday clowns. The distinction is completely irrelevant.
In Times v. United States, the Supreme Court did not rule that news organizations could do whatever they wanted. That’s not what the case was about. The court ruled that the government could not prevent the Times from publishing their story on the Pentagon Papers. The Times was provided those documents by a third-party source — they did not do anything illegal or conspire with anyone who did in order to obtain that information. They were presented with the report after the fact by the leaker, Daniel Ellsberg, who subsequently faced criminal charges (and was cleared, due to a mistrial) for his actions.
Now, draw a parallel between the Pentagon Papers and Assange’s present predicament, as laid out in the space above. If Assange was, in fact, simply presented with the State Department cables by leaker Bradley Manning — as the Times was with the Pentagon Papers by Ellsberg — then he has done nothing wrong and any criminal charges against him would undoubtedly fail in court.
However, if Assange was complicit in Manning’s crime from the beginning, he is an accomplice to treason and should face appropriate charges. Likewise, if Times correspondent Neil Sheehan had participated in a coordinated effort with Ellsburg to illegally photocopy the classified Pentagon Papers so he could ultimately divulge their information in the pages of his newspaper, he would have faced the exact same charges as Assange — and rightfully so.
There’s no double-standard here. No one is trying to skirt or ignore the Pentagon Papers ruling. It just doesn’t apply. If you commit an act of treason, the Supreme Court’s opinion against prior restraint does not insulate you from prosecution, regardless of whether you’re a prestigious newspaper or an international man of mystery. Neil Sheehan did not commit an act of treason, he just published the information he was given — hence, he did not face charges and Daniel Ellsberg (they guy who allegedly committed an actual crime) did.
The same goes for Julian Assange. We don’t know what he knew or when he knew it quite yet — the Justice Department is still trying to work all that out. But if he really just published information that Bradley Manning handed him after the fact, then he should be free to go on his merry way, leaking everything everywhere to his heart’s content.
But, conversely, if it can be established and proven in a court of law that he knew what Manning was doing and that he encouraged, aided, participated or conspired with him to commit that crime, then it’s time for everyone’s favorite Aussie enigma to face the music, for better or for worse.
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