Should Assange Be Prosecuted? By Whom? For What?

It’s becoming clearer that Julian Assange of Wikileaks published a vast database of classified information (with almost no ethically significant revelatory content*), in such a way as to put numerous Afghan civilians at risk. His actions seem to have done very little good in changing foreign policy, but potentially an enormous amount of harm to human life.

[Name-calling aside, Daily Beast’s Tunko Varadarajan just about bangs the nail on the head in regard to Assange’s specious claims to the contrary:

How does Assange justify putting these people at mortal risk? Predictably, he does not, taking refuge behind a weasel-worded insistence that he and his team had edited the material so that there was “harm minimization,” a morally teasing phrase that might, so ironically, be part of the Pentagon’s own lexicon.]

What happens now? The US government, quite justifiably though not least for its own self-serving reasons, is reportedly considering ways to prosecute Assange for his actions. (Next I’d like to see reporters press SecDef Gates on what exactly DOD intends to do to protect its informants on the ground.) Developments in any legal case that goes forward will be interesting because Assange is operating in a legal gray area in more ways than one.

First of all, his Australian citizenship and shifting transnational bases raise jurisdiction questions: under whose laws does he fall? Should he be prosecuted by the US, by his own country, or some other court, and is he likely to be extradited to any of these?

Second, as an individual with a computer backed by a team of journalists and human rights activists, it’s not clear conceptually what set of professional standards he falls under. Is Wikileaks part of the media, covered by laws governing the relationship between the national security state and the press? If so do those laws apply to these types of transnationalized new media outlets? (According to the Daily Beast, Wikileaks has been described as “the world’s first stateless news organization.”) Or is he just a citizen with a non-profit organization, and if so is his behavior a form of protected speech? Is speech protected when it compromises the confidentiality of others without their consent, to the extent that their lives are put in jeopardy? (This question goes to much broader legal debates percolating in the area of new media, such as whether Facebook’s unilateral shifting of presumably ‘private’ content breaches the civil liberties of its users, particularly when it puts people at risk of, say, stalking. Hackers’ efforts to expose the practices arguably put users at risk as well.)

Most likely, if Assange is extradited to the US he would be prosecuted under some provision of the 1917 Espionage Act. A former counterintelligence official is arguing Assange should be captured by Special Ops forces and tried for espionage rather than for mishandling classified evidence. If so, we can unfortunately expect the case will be treated and politicized as an attempt to crack down on whistleblowing per se than as application of justice to irresponsible, pseudo-whistle-blowing journalists. We see this already in the Weekly Standard’s coverage: Gabriel Shoenfield discusses “the threat to human life and to the war effort” in the same sentence in critiquing the NYT’s role in breaking the story.

This framing has grave implications for free speech and dissent not only in wartime but probably in the new media more generally. If the US government adopts it Assange will become a lightning rod for First Amendment claims and counter-claims rather than questions about ethical use of sensitive data. The Espionage Act was designed to essentially curb free speech to prevent interference with wartime military operations. Prosecuting Assange under such a law would delegitimize his protest of the war rather than the means by which he undertook it. In 2006 a federal court upheld the right of the government to prosecute recipients of national security leaks, as well as sources. The constitutionality of such laws is hotly contested and the resulting debate will muddy the real issue, which is the conditions under and means by which classified information should be revealed to the public.

I’d rather see a court focus on how he conducted his activities rather than whether leaks of this type are legitimate (for under certain conditions, they certainly are, whether or not some country’s war effort is undermined). The real issue here is and should be framed as human security, not national security.

Are there alternatives to prosecution by the very country whose war efforts constitute the background for the debate? Absolutely. Instead of being treated as a spy or a criminal perhaps Assnage should be sued in civil court under the Alien Tort Claims Act. Class-action lawsuits have often been brought on behalf of aggrieved defendants by public interest lawyers in the US, often in cases where jurisdictional issues problematizes criminal prosecutions. Former heads of state and bloody-handed transnational corporate executives have been sued in this way; why not an irresponsible renegade cyber-journalist?

Penalties under such civil lawsuits don’t always result in concrete gains for victims’ families but they do play an important norm-building role in establishing legal precedent over previously under-adjudicated phenomena. The approach is especially useful where the harms suffered by individuals are recognized by global civil society organizations but unreachable by domestic or international institutions. In the case of the wanton privacy violations and attendant human security concerns raised by this case, perhaps reaching and punishing such harms is best accomplished in a civil court that can remain neutral of the political debate about whether Assange has, or has a right to, “undermine the war effort.”

Since civil cases require damages, an implication might be that we must wait around for heads to roll before Assange receives a comeuppance. But the more responsible thing to do would be for NATO countries to immediately seek to remove named informants and their families from Afghanistan, and join those families in suing Wikileaks to recover the financial costs and emotional hardships of relocation.

*I will have a post up shortly about why progressives should be wary of uncritically regurgitating Assange’s claims about “war crimes.”

UPDATE: Joshua Keating has some further insight on whether the Justice Department’s dog might hunt.

UPDATE: David Folkenflik: is Wikileaks an editor, a source, an advocacy organization or a member of the journalism profession?

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