Are we in the midst of a Cyberwar?
It seems that both sides in the Wikileaks “Cablegate” controversy think so, as military metaphors abound: “national security”; “espionage”; “Operation Payback”; “Operation Avenge Assange;” “cyber threats”, and my favourite, “hackvitism”.
According to the Wall Street Journal, Senator Dianne Feinstein now wants to Prosecute Assange Under the Espionage Act.
The problem is that Wilileaks founder and chief editor, Julian Assange, is an Australian citizen. His recent legal problems stemming from criminal charges in Sweden and his current arrest and detention in the UK, do not personally subject Assange to the long arm of U.S. jurisdiction. Neither, apparently, does the release of the classified military information or diplomatic cables. According to a December 6, 2010 Congressional Service Report by Legislative Attorney, Jennifer K. Elsea:
“[while] some criminal statutes…may apply, ….these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.
Elsea points out that The U.S. Espionage Act of 1917:
” gives no express indication that it is intended to apply extraterritorially, but courts have not been reluctant to apply it to overseas conduct of Americans, in particular because Congress in 1961 eliminated a provision restricting the act to apply only “within the admiralty and maritime jurisdiction of the United States and on the high seas, as well as within the United States.” This does not answer the question whether the act is intended to apply to foreigners …[at p. 9, citations omitted].
The bigger problem for the U.S. and its allies, including Canada and the U.K., is poor optics, bureaucratic inertia, poor computer network security, and political myopia. On the one hand, the U.S. needs to protect state secrets from the usual suspects—China, North Korea, Iran—and, of course, the cadre of ‘enemy combatants’ and ‘terrorists’ wherever they may be lurking and plotting to harm national security interests, at home and abroad. On the other hand, the thousands of CIA and military analysts delegated with the responsibility to perform their work require access to a classified network that has been compromised by alleged illegal downloading of over 250,000 documents worth of highly classified material by PFC Bradley Manning. This Catch-22 scenario does have a tinge of irony, as Steven Aftergood at Secrecy News reports:
“The U.S. Government insists that the classification markings on many of the leaked documents being published by Wikileaks and other organizations are still in force, even though the documents are effectively in the public domain, and it has directed federal employees and contractors not to access or read the records outside of a classified network.
But by strictly adhering to the letter of security policy and elevating security above mission performance, some say the government may be causing additional damage.”
As Elsea notes,
“Although information properly classified in accordance with statute or executive order carries by definition, if disclosed to a person not authorized to receive it, the potential of causing at least identifiable harm to the national security of the United States, it does not necessarily follow that government classification by itself will be dispositive of the issue in the context of a criminal trial.” (at page. 16, citation omitted)
In an interview with Amy Goodman of www.democracynow.org, Ellsberg, the famous whistleblower who leaked the Pentagon Papers about the Vietnam War in 1971, said,
“If I released the Pentagon Papers today, the same rhetoric and the same calls would be made about me,” Ellsberg says. “I would be called not only a traitor—which I was then, which was false and slanderous—but I would be called a terrorist… Assange and Bradley Manning are no more terrorists than I am.”
Assange also has support on the home front. In an “Open letter: To Julia Gillard, re Julian Assange” (by Jeff Sparrow and Elizabeth O’Shea):
“The authors write: We wrote the letter below because we believe that Julian Assange is entitled to all the protections enshrined in the rule of law – and that the Australian Government has an obligation to ensure he receives them.
The signatures here have been collected in the course of a day-and-a-half, primarily from people in publishing, law and politics. The signatories hold divergent views about WikiLeaks and its operations. But they are united in a determination to see Mr Assange treated fairly.
We know that many others would have liked to sign. But given the urgency of the situation, we though it expedient to publish now rather than collect more names.
If, however, you agree with the sentiments expressed, we encourage you to leave your name in the comments section.”
Over 185 academics, lawyers and journalists have signed the open letter to the Australian Prime Minister, with 5193 comments in support to date.
Unredacted information does not lead to knowledge or truth. No matter how interesting, it is still just that; information.
Finally, both sides should read Sunzi’s, The Art of War, who offers the following advice on espionage:
“Whether the object be to crush an army, to storm a city, or to assassinate an individual, it is always necessary to begin by finding out the names of the attendants, the aides-de-camp, and door-keepers and sentries of the general in command. Our spies must be commissioned to ascertain these. The enemy’s spies who have come to spy on us must be sought out, tempted with bribes, led away and comfortably housed. Thus they will become converted spies and available for our service. It is through the information brought by the converted spy that we are able to acquire and employ local and inward spies. It is owing to his information, again, that we can cause the doomed spy to carry false tidings to the enemy. Lastly, it is by his information that the surviving spy can be used on appointed occasions. The end and aim of spying in all its five varieties is knowledge of the enemy; and this knowledge can only be derived, in the first instance, from the converted spy. Hence it is essential that the converted spy be treated with the utmost liberality.”