Both the federal authorities and the free-lancers such as Sen. Joe Lieberman (I-Conn.) are willing to put extralegal pressure on businesses (Visa, Mastercard, Paypal, Amazon, Bank of America) to cut off WikiLeaks funding. Government employees, and even prospective government employees, are being warned against reading either the cables or news outlets that have carried them. The executive has pressured the UK and Sweden, and who knows who else, and is trying to put together a conspiracy case under the WWI espionage act.
Our government seems, in fact, to be pushing to have Assange extradited to face charges of espionage, maybe or maybe not by convening a secret grand jury in Alexandria, Virginia. Until the WikiLeaks matter arose, few of us realized that an expedited European procedure now allows extradition without charges having been filed. But that is Europe, and is hence an issue for the courts of the United Kingdom, and between Sweden and the UK, since no actual charges have been filed against Assange in Sweden.
But few countries will extradite on charges of espionage; the late former CIA agent Phil Agee, whose Inside the Company: CIA Diary, was published in 1975 after a delay of six months, was never extradited for charges that might have included espionage and major violations of security regulations. Though his US passport was revoked, he was only occasionally stateless. He held passports of several nations before acquiring German citizenship by marriage. He died in Cuba, in 2008, after a saga that lasted from 1975 until his death. In terms of legislative action based on that matter, it was not until 1982 that the Congress passed the Intelligence Identities Protective Act of 1982, which figured in the Plame case. Agee had indexed the identities of some 200 CIA officers, most of them serving abroad.
And whatever has gone on here doesn’t put either the leaker or the publication in the same category as Agee. Nor does it compare at all to the damage done Robert Hanssen, Jonathan Pollard, Aldrich Ames, or Harold Nicholson, much less Fuchs and the Rosenbergs. So when Joe Biden calls Assange “a high tech terrorist”—hyperbolic for certain, prejudicial at best, hysterical at worst—something’s gone too far.
Did WikiLeaks hack the network? Apparently not.
Did it encourage, facilitate, or turn the leaker? We don’t know.
No one has yet been charged, apparently, though a suspect is in custody under conditions that are reported to be barely, if at all, appropriate, including solitary confinement.
Switzerland has given us the back of its hand and refused to interfere with a server company now hosting WikiLeaks. Australian Foreign Minister Rudd–a loose cannon, perhaps, but a loose cannon after my own heart–said it’s our fault, not Assange’s, that it was possible for anyone to access a network and accomplish a download of 250,000 archived classified documents.
We’ve heard shouts of “treason.” How? To what? Mr. Assange is not an American citizen, and even if he were, it would be difficult to see this as treasonable.
We’ve heard plaints that our national interest has been damaged, but no cogent arguments or demonstrations of proof in place of opinion expressed as fact. I’d imagine, however, that Undersecretary of State Burns will not be invited to any more thuggish weddings in Dagestan, which we all enjoyed, amidst the booze and the gold-plated handguns, thanks to his vivid account.
We have, as a benefit, had a look at what seem to me to be some of the smartest, hardest working, most plain-spoken public servants one could hope for, on some of the toughest postings one could imagine. They’re energetic, curious, perceptive, and graceful writers in understaffed, uncomfortable, often dangerous places, and we should be proud of them and grateful to them. These are not striped-pants diplomats, and they are no one to sneer at as effete.
One had a chance to wonder idly if the overstressed ambassador to Yemen, understaffed, coping with American jihadists on their way to deportation but stuck on no-fly lists, ever got saddled with such a job. Did he piss in the punchbowl at a Christmas party, or was he the only one with language qualifications who wouldn’t quit if he got the assignment?
And we have not addressed—indeed, have studiously avoided mentioning–the underlying problems that permitted this whole thing to devolve as it did.
The network from which the documents were downloaded had three million subscribers. It was about as secure as a subscription to the Wall Street Journal, and less secure than most Facebook pages, to which one lacks access without being a “friend.”
Users had a secure computer in the office. Each had a password. Each had a verified clearance to some level. The “secure” computer had its USB ports disabled, so the user couldn’t copy to a tiny, commodious zip drive, but it still had the ability to copy to a CD. By one account, you could copy what you liked, while lip-synching to Lady Gaga tunes, on the taxpayers dime. You had access to any item in the archives that accorded with your level of clearance. You could download 250,000 items without being detected or even questioned. If you hadn’t told exactly the wrong person, no one would have turned you in, or even thought twice.
Would it to unseemly to wonder if this hadn’t happened before? Or whether it could have happened if the system had not been so loosely constructed, in the interest of “information sharing” in the wake of 9/11? Or if we hadn’t given out enormous numbers of security clearances since then–said to be in excess of 850,000, according to a recent Washington Post series–at perhaps higher levels than could be warranted by the employee’s actual work needs?
Over-clearance leads directly to the problem of too much access to secure materials. The much older problem is that of overclassification of material that is low on its quotient of national security and high on its quotient of interest in covering up errors, screw-ups, rollicking disagreements, gossip, and out-and-out deception of the citizenry, its representatives, and its reporters.
Did no one monitor this network? Did no one check which computers and subscribers had accessed more material than seemed reasonable? Could it had been more slovenly if someone had designed it to be?
Back when I handled classified material, when cables were cables and secure materials were on paper that was locked up most of the time, you didn’t copy it without authorization. You logged it in and locked it up before you slogged out to the parking lot at the end of the day. This network itself, and its setup, gives old hands the galloping jumps. It smacks of highly paid government contractors who may have known how to devise a network, knew lots about computers, but didn’t know anything about building in features for appropriate access to and handling of secure materials. Who were they? What did this dunderheaded network cost? Who supervised it? Where were its built-in checks on abuse? Did they think you couldn’t copy to a CD?
And mostly, are we willing to abandon our constitution in an effort to give them a pass on their multiple errors?
Whatever you think of any of this, Julian Assange may remind you of Justice Frankfurter’s wonderful quote: “It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.” But Assange is, by contemporary standards, a publisher, and WikiLeaks is, by contemporary standards, a publication. By any standards, The First Amendment applies:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
By any standard, public servants remain citizens, and it is unseemly to tell them what they may and may not read. Is ignorance suddenly to be embraced as an American value? I understand that the Pentagon Papers, with all their valuable lessons in the folly of lying a nation into war, remain classified to this day, and so are barred to the view of those holding current security clearances. I am having trouble checking that, but it sounds like a plot line from a sequel to Dumb and Dumber.
The First Amendment applied when our government sought prior restraint of the New York Times’s publication of The Pentagon Papers. In rejecting the preliminary injunction sought by the government, Judge Murray Gurgein said, “A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form….”
The government’s appeal of Gurfein’s decision to the Supreme Court failed by six justices to three. That was, of course, not the Supreme Court that is sitting now. Then, though, the variety of concurring opinions all boiled down to, “The first amendment means what it says.”
That decision let the presses roll, on that sorry compendium of another war that we were lied into and endlessly deceived about, complete with the reassurances about the light at the end of the tunnel. By 1973, we all pretty well knew that the much-vaunted light warned of an onrushing train.
The trial of Daniel Ellsberg and Anthony Russo ended when the charges—twelve counts including espionage, theft, and conspiracy–were dismissed on grounds of prosecutorial misconduct, four months into trial, by Judge William J. Byrne, in May 1973. Evidence had disappeared in the prosecution’s hands, the prosecution had concealed the attempted burglary of Ellsberg’s psychiatrist’s office by what became the White House Plumbers of Watergate fame, and the government had tried to influence the Byrne by dangling an offer of the directorship of the FBI.
Moreover, as anyone who has done this work knows, the restrictions on revelation of secure material are applied in a discriminatory fashion. I can recall an instance in which a distinguished retired military officer revealed the sources and methods of our communications with prisoners in North Vietnam in a memoir of his captivity. Neither his branch of service nor any other concerned agency attempted to have those passages deleted lest future prisoners have to pay the consequences, as indeed they have. If you haven’t noticed, we no longer have prisoners of war.
Let’s get real. The leaker can be charged and prosecuted. Prosecution of Julian Assange and his publication are another story, and one that might well end the way the Pentagon Papers did, with an affirmation of the first amendment and egg on the government’s face. It’s a near certainty that no civilized nation would extradite him to stand trial in the US on these charges.
In fact WikiLeaks seems to have a fine set of prospective actions in tortuous interference with contract. This is still the United States of America. We still, even with gritted teeth, have to behave as if, even once charges are made (which they have not been), one is innocent until proven guilty. The city I live in is, for that reason, paying the salary and the defense costs of a police officer now on leave and awaiting trial on eight counts of perjury key to having convicted an innocent man of a murder he did not commit, but for which he served nine years of a life sentence. Nobody likes it. But it may well be obligatory.
The backsides I’d like to see in witness chairs in front of a Congressional committee are those of whoever contracted, got paid for, and set up the network, and didn’t provide for monitoring and checking. Nor would I mind seeing the yowlers, such as Lieberman, who don’t want their oxen or their campaign contributors gored. I suspect that, yet to come, are discussions of Israeli policies—as I write this, one release suggestions that Israel colluded with Fatah against Hamas–and that country’s nuclear arsenal. I am waiting for some sharp-tongued diplomat who proposed locking Netanyahu and Ahmadinejad in a room with no food, water, or bathroom facilities until they sign a mutual destruction-of-arms pact and agreed to retire.
Let us not abandon our constitution, or our common sense. Let us not criminalize what is not criminal. Let’s not behave like China.
Let’s turn down the volume, determine how this mess arose, and figure out how and why communication was so thoroughly compromised, and how we might provide more secure channels. Maybe we can begin with a little help from Facebook, so that only “friends” could see the sender’s communications.
Patricia Falk Feeley is as retired as a retired journalist and editor ever gets. At 70 years-old, the Stanford ’63 graduate lives on the Front Range of the Rockies, and keeps busy designing knitwear, walking her rescued Border Collie mix, and tending a garden in the style of Monet – albeit without his staff. She is the author of several diverse published items including the 1983 classic A Swarm of WASPs.
"[DNC Chair Tom Perez] has gotten instructions from Bill Clinton not to let the party go to the Bernie Sanders folks." - Jonathan Allen, co-author of Shattered, revealing new material in the upcoming paperback release pic.twitter.com/dLEnwl7kIc— HootHootBerns 🌹🐦 (@HootHootBerns) May 3, 2018