Last week, we took note at Reason 24/7 of a story in the Australian press claiming that the United States had declared WikiLeaks founder Julian Assange an “enemy of the state.” The Sydney Morning Herald reported:
Declassified US Air Force counter-intelligence documents, released under US freedom-of-information laws, reveal that military personnel who contact WikiLeaks or WikiLeaks supporters may be at risk of being charged with "communicating with the enemy," a military crime that carries a maximum sentence of death.
The documents, some originally classified "Secret/NoForn" -- not releasable to non-US nationals -- record a probe by the air force's Office of Special Investigations into a cyber systems analyst based in Britain who allegedly expressed support for WikiLeaks and attended pro-Assange demonstrations in London.
The suspected offence was "communicating with the enemy, 104-D", an article in the US Uniform Code of Military Justice that prohibits military personnel from "communicating, corresponding or holding intercourse with the enemy".
The analyst's access to classified information was suspended. However, the investigators closed the case without laying charges. The analyst denied leaking information.
From this document, the reporter concluded that Assange was now an “enemy of the state.” I had some suspicions, though. The analyst was not charged. Was this because an investigation showed that the analyst was not engaging in the communication alleged? Or was it because somebody determined that the charges weren’t valid because Assange and WikiLeaks aren’t actually “the enemy”?
So I did a thing that journalists do sometimes and called the Pentagon to ask. I didn’t actually expect anything to come of it, given our government’s current tendency to try to keep as many secrets as possible.
But Monday afternoon I got a call back from Department of Defense spokesman Lt. Col. Jim Gregory. When flatly asked whether Assange or WikiLeaks had been classified by the military as “enemies of the state,” he said they had not.
Gregory admitted he hadn’t had the chance to look over all the documents the Herald had received. But he was firm in his declaration that the military, at least, did not consider Assange or WikiLeaks an enemy.
Last year Glenn Greenwald (via Brian Doherty) took note of the Uniform Code of Military Justice and wondered the same thing in regards to the charges against WikiLeaker Bradley Manning:
Article 104 -- which, like all provisions of the UCMJ, applies only to members of the military -- is incredibly broad. Under 104(b) -- almost certainly the provision to be applied -- a person is guilty if he "gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly" (emphasis added), and, if convicted, "shall suffer death or such other punishment as a court-martial or military commission may direct."...
I couldn’t exactly pin down Gregory to say whether the “indirect” communication is what we’re talking about (that information released by WikiLeaks was accessible by actual enemies of the state), but he did say, “Irrespective of Assange, if somebody in DoD were to reveal classified information, that would be an issue and would be appropriately charged.“
This does not mean, of course, that President Barack Obama or the Department of Justice wouldn’t want to get their hands on Assange to prosecute or that the American government wouldn’t want to try to shut WikiLeaks down. But assuming what Gregory said is accurate (and I know that’s a big assumption for a lot of people), Assange has not been classified the same as a member of the Taliban … or as any military-age male in a country where our drones are operating.