DoD: Assange, WikiLeaks Are Not "Enemies of the State"

Cold comfort for Bradley Manning, though

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.

Comments

[Raston Bot]

When flatly asked whether Assange or WikiLeaks had been classified by the military as "enemies of the state," he said they had not.

right, but only because the bureaucratic paperwork backlog would not allow for their reclassification to enemy status until the mid-Atlantic processing center could find the form that was faxed over last month, and that new civilian admin asst (you know, the one w/ the long nails, weave, and dresses for work like she's going clubbing) lost the four original copies. man, i hate when that happens.

[Xenocles]

I can see bringing the charge even if Wikileaks isn't "the enemy." When you hand something off to Wikileaks you know or ought to know that the information will likely wind up posted somewhere where the actual enemy can read it.

Also, it's "Uniform Code of Military Justice," not universal.

[Scott S.]

Fixed.

[R C Dean]

I can see bringing the charge even if Wikileaks the New York Times isn't "the enemy." When you hand something off to Wikileaks the New York Times you know or ought to know that the information will likely wind up posted somewhere where the actual enemy can read it.

Seriously, what is the difference (in principle?) between providing leaked documents to Wikileaks and to any news outlet?

[Xenocles]

There is no difference at all. The only question in my mind is whether the content of the message is worthy of punishment.

[Hugh Akston]

So when do the drone strikes on Michael Bay's house begin?

[Xenocles]

With any luck they're just waiting for time travel.

[R C Dean]

Xenocles, are you saying any media outlet that publishes anything the State deems to be classified should be prosecuted?

[Xenocles]

No, but I'm certainly okay with their source being prosecuted in cases where demonstrable harm results. They signed the same agreement I did.

[R C Dean]

Thanks. I wasn't sure who you were going to charge.

[Xenocles]

Sorry, I thought it was clear from thee fact that we started our discussion with the UCMJ.

[PLink]

" cases where demonstrable harm results"

Has anyone proven this yet? I'm familiar with Wikileaks vetting stuff via big media outlets to keep names out (NYT, UKGuardian, etc.) but I don't remember anyone saying that there has been any harm other than some Pentagon vague blustering.

[Episiarch]

Wait, what the fuck? Who the fuck decides what is worthy of punishment?

[Xenocles]

The people who would do the punishing, as with anything. This discussion assumes the existence of a state with the amount of power that is typical today.

[Episiarch]

Dude, you are confusing the shit out of me. In one post you imply that you would decide whether something is punishable, and then in another you say that it's the punishers. Which is it?

[Xenocles]

In a republic, it's basically the same thing.

[Xenocles]

And look, I know you don't agree with me on this, but I believe there are cases where a state can legitimately go to war and in those cases the state can legitimately exercise a certain level of power to protect its war effort. If Seaman Manning pulled the battle plans for Midway and transmitted it across the Pacific to anyone who was interested, the state would have a reasonable interest in prosecuting him for that action. The fact that we classify entirely too much information does not mean that there is no information that ought to be protected.

Do I think the information Private Manning allegedly sent out rose to that level of harmfulness? I haven't seen any of it, but I suspect that it did not. Nevertheless, his alleged actions would certainly have violated an agreement he signed and that itself should make him liable for some penalty, even if only something like being punitively fired.

[Episiarch]

My opposition to treason notwithstanding, my belief is that if you want to fire someone for breaking terms of employment, that's fine. But killing them, or even imprisoning them? That's not fine.

[Xenocles]

Like I said, we disagree. But to answer your question (I think), the government should have to demonstrate some material harm that came directly from the release of information to justify prosecution. I also see that as being the same thing as treason (as defined in the Constitution). So for me this is a matter of principle, not necessarily the way we actually practice it.

[John Thacker]

For most of our history, Xenocles was clearly correct, at least in practice. The Espionage Act had basically never been used, but there's a case for having something as an option for really extreme cases (like the Rosenbergs). It's only guys like Woodrow Wilson and Obama who have used it for really trivial things.

[The Late P Brooks]

Whoever wrote "FUCK OBAMA" on the free speech wall is an Enemy of the State.

[Paul.]

Obama is the enema of the state!

[SugarFree]

That's a play on words, right?

[PS]

So I did a thing that journalists do sometimes and called the Pentagon to ask.

Silly Shackford, that sort of stuff went out of style with the Selectric typewriter.