Thursday, September 27, 2012
Documents show US policy puts media outlet in same legal category as violent terrorist groups
Military documents (pdf) obtained through a Freedom of Information Act request and posted online by Wikileaks show that the US government has designated the whistleblower website and its founder Julian Assange as “enemies of the state”—the same legal category as Al Qaeda and other foreign military adversaries.
As the Sydney Morning Herald reports:
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 counter-intelligence investigation focused on whether the analyst, who had a top-secret security clearance and access to the US military’s Secret Internet Protocol Router network, had disclosed classified or sensitive information to WikiLeaks supporters, described as an “anti-US and/or anti-military group”.
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”.
Mr Assange’s US attorney, Michael Ratner, told the Herald that designating WikiLeaks an “enemy” would have serious implications for the WikiLeaks publisher if his fears of being extradited to the US were realized.
Mr Ratner stipulated that under US law it would most likely have been considered criminal for the US Air Force analyst to communicate classified material to journalists and publishers, but those journalists and publishers would not have been considered the enemy or prosecuted.
“However, in the FOI documents there is no allegation of any actual communication for publication that would aid an enemy of the United States such as al-Qaeda, nor are there allegations that WikiLeaks published such information,” he said.
“Almost the entire set of documents is concerned with the analyst’s communications with people close to and supporters of Julian Assange and WikiLeaks, with the worry that she would disclose classified documents to Julian Assange and WikiLeaks.
“It appears that Julian Assange and WikiLeaks are the ‘enemy’. An enemy is dealt with under the laws of war, which could include killing, capturing, detaining without trial, etc.”
The revelations contained in the documents led the Guardian‘s Glenn Greenwald to ask: “How could leaking to WikiLeaks possibly constitute the crime of ‘communicating with the enemy’? Who exactly is the ‘enemy’?”
Answering his own question, Greenwald argues there are two equally disturbing possibilities:
The first possibility is the one suggested by today’s Sydney Morning Herald article on these documents (as well as by WikiLeaks itself): that the US military now formally characterizes WikiLeaks and Assange as an “enemy”, the same designation it gives to groups such as Al Qaeda and the Taliban. This would not be the first time such sentiments were expressed by the US military: recall that one of the earliest leaks from the then-largely-unknown group was a secret report prepared back in 2008 by the US Army which, as the New York Times put it, included WikiLeaks on the Pentagon’s “list of the enemies threatening the security of the United States” and then plotted how to destroy it.
But it’s the second possibility that seems to me to be the far more likely one: namely, that the US government, as part of Obama’s unprecedented war on whistleblowers, has now fully embraced the pernicious theory that any leaks of classified information can constitute the crime of “aiding the enemy” or “communicating with the enemy” by virtue of the fact that, indirectly, “the enemy” will – like everyone else in the world – ultimately learn of what is disclosed.
Greenwald concludes by articulating what he sees as the inherent irony of the ongoing Wikileaks saga and what it says about the Obama administration’s inconsistent stance on freedoms of the press and expression.
The real “enemies” of American “society” are not those who seek to inform the American people about the bad acts engaged in by their government in secret. As Democrats once recognized prior to the age of Obama – in the age of Daniel Ellsberg – people who do that are more aptly referred to as “heroes”. The actual “enemies” are those who abuse secrecy powers to conceal government actions and to threaten with life imprisonment or even execution those who blow the whistle on high-level wrongdoing.