WikiLeaks, until recently a little-known website specializing in gathering and publishing on the Internet communications that governments don’t want to be made public, is now front-page news around the globe. Legal and technological machinations surrounding the group’s latest electronic dump of classified diplomatic cables and e-mails, however, threaten to redefine cyber warfare.
This is not the first time WikiLeaks has released confidential information; but it is unquestionably the most intriguing.
WikiLeaks is suspected to have received this most recent information treasure trove from Bradley Manning, a low-level Army intelligence analyst who is in custody, and who presumably will be prosecuted for his massive breach of security. Indicting WikiLeaks founder and chief operative, the itinerant Julian Assange who holds an Australian passport and hides out in internet cafes, will be much more problematic.
Prosecuting Assange directly in the United States will be exceedingly difficult because of the limitations on media prosecutions imposed by the First Amendment to the Constitution. However, it appears that creative and aggressive use of diplomatic pressure by Washington and London has prompted the Swedish government to employ its extradition power to have him detained for the time being in London.
The charges on which Stockholm is basing its extradition request are ones rarely, if ever, used as the basis for such serious action. Assange is charged with having engaged in “unprotected” sexual relations with a woman who “protested” – hardly the stuff of international intrigue or clear violations of major felonies such as was faced recently by filmmaker Roman Polanski when he fought a lengthy and ultimately successful fight against being extradited to the U.S. from Switzerland.
Still, Sweden’s move to have Assange detained in the United Kingdom for now, on whatever charge, provides time for federal prosecutors in Washington, DC to try and fashion a case against him; based not on a questionable sexual act but one based on espionage or other national security law violations. This will be difficult, but the pressure from Congress and the American public to do something will be intense.
Legislative efforts to criminalize the publication of numerous highly embarrassing diplomatic communications that do not appear to contain information directly damaging to our national defense, is a complete non-starter. For one thing, it could not reach Assange because of the Constitution’s clear prohibition on ex post facto laws. New York Rep. Peter King, who will assume the chairmanship of the Homeland Security Committee next month, is clamoring for WikiLeaks to be classified as a “terrorist organization.” This too, may make for a good sound bite, but from a legal and constitutional perspective, will amount to little else.
There is reason for defenders of the First Amendment to be concerned, however. Leading the charge is Sen. Joseph Lieberman (I-CT). Since the release of the diplomatic cables, Lieberman has pressured Internet hosting providers to stop doing business with WikiLeaks. He also has suggested that news organizations reporting on the release of the cables may have broken the law. Legally, such a position is weak; but from a practical standpoint, it is extremely problematic. Already, a number of organization through which WikiLeaks raises the money to fund its operations, have succumbed to pressure and stopped doing business with Assange’s organization.
In return, WikiLeaks supporters, many of whom appear to be highly proficient in use of the Internet at all levels, are causing major problems for these companies, such as PayPal, that have moved to cut off WikiLeaks’ access to funds.
Where this game of electronic cat-and-mouse will lead is still unfolding; but what we may be witnessing is the first major cyber war of the 21st Century. Let us hope that the First Amendment, and those other provisions in the Bill of Rights so battered during the prior administration of President George W. Bush, do not sustain further injuries.