WikiLeaks has declared war on America. Will President Obama be our commander-in-chief or a conscientious objector? With the third and most recent release by WikiLeaks of classified information — sensitive State Department communications — Attorney General Eric Holder “opened an investigation.” Secretary of State Hillary Clinton said it was “an attack on America’s foreign policy interests” and an attack on the “international community.” So far, however, President Obama has been AWOL. He has shown little interest in WikiLeaks, and he has given little indication how he will respond to this blatant breach of U.S. national security.
You may question whether what WikiLeaks and Julian Assange have done constitutes a declaration of war that warrants criminal prosecution and other actions. The argument against criminal prosecution of Assange, of course, is that WikiLeaks is a “legitimate” news organization. Ever since the June 1971 (6-3) U.S. Supreme Court ruling in the Daniel Ellsberg/Pentagon Papers case, news organizations have been immune from prosecution for publishing classified information no matter how the person who gives it to them obtained it.
Writing for the majority, Justice Hugo Black said: “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”
Those are admirable and important sentiments. A free and unrestrained press is fundamental to a democratic society. An agent of destruction using the First Amendment as a shield for illegal activities, however, is not. Nothing prevents the President of the United States from ordering his attorney general to prosecute Assange on the premise that WikiLeaks is not a legitimate news organization but exists for the sole purpose of undermining government and inciting people like Bradley Manning to break the law. No one should assume in advance how the courts would rule on a challenge to an Assange conviction.
While WikiLeaks may indeed have published some information that exposes “deception in government;” the vast majority of the information it has released does not. That information was properly and legitimately classified, and its unauthorized release only undermines the U.S. government’s trustworthiness with its allies and U.S. national security.
WikiLeaks’ dissemination of hundreds of 256-digit-encrypted “poison-pill” files with a deluge of state and commercial secrets is not the action of a legitimate news organization. Assange has threatened to provide the password to those who have the file when the U.K., Swedish, or U.S. governments have gone too far. We won’t know what Assange considers “too far” until he provides the password, but he has led the world to believe that time is fast approaching.
Denial-of-service attacks on Amazon.com, Visa, MasterCard, PayPal, and Sarah Palin in retribution for their actions and comments against WikiLeaks may or may not have been done at Assange’s behest. Either way, they are like al-Qaeda-inspired terrorist attacks. They are done by those who identify with WikiLeaks, share its disdain for America, and wish to participate in efforts to do it harm. Although they were of limited effectiveness this time, they have the potential to do far more damage in the future.
Regardless of the outcome of attempts to prosecute Assange or any of his sympathizers, the U.S. government has every right to defend itself against WikiLeaks and its supporters’ attacks. The best way to defend itself is to go on the offensive; and that requires an order from the president. Some have called for the U.S. government to declare Assange a terrorist or an enemy combatant. President Obama correctly isn’t going to do that for someone who hasn’t killed or attempted to kill anyone.
Instead, the president should draw on America’s experience in its wars with organized crime and foreign espionage. He should direct U.S. intelligence and law-enforcement agencies to use the same legitimate, aggressive methods they used to bring down Mafia dons, Soviet spies, and their provocateurs. In doing so, they can deter and thwart WikiLeaks and copycat organizations by disrupting, undermining, and impeding their operations and gathering evidence that the U.S. government can use to put the people behind them in prison.
Two principle considerations likely inhibit President Obama from going on the offensive. First, it requires resources already dedicated to fighting terrorism. Second, it risks crossing the line between going after phony news organizations like WikiLeaks and legitimate ones. Any finding signed by the president that authorizes offensive action against WikiLeaks and others would have to be carefully drafted and implemented. New legislation from Congress might also be required. The usual suspects on the left would no doubt scream loudly in any event, but if done correctly, such efforts could survive their challenges in court.
Failure to prosecute Julian Assange aggressively and go after his organization offensively, while the national security community improves information security, invites WikiLeaks and others to continue weakening the United States militarily, diplomatically, and economically. Attorney General Holder can make the decision to prosecute Assange in the courts. Only President Barack Obama can make the decision to go after Assange and WikiLeaks by other means, and he should do so.
Lawyers representing Assange have said they believe that a U.S. indictment of him on spying charges is imminent. But who knows, perhaps the administration is already on the offensive. We can only hope. Sooner or later we’ll know if Barack Obama has decided to act as the commander-in-chief or as a conscientious objector in the WikiLeaks war on America.
Ed Ross is the President and Chief Executive Officer of EWRoss International LLC, a company that provides global consulting services to clients in the international defense marketplace. He publishes commentary at EWRoss.com.