It's set to become the new waiting game in Washington, D.C.: how long before the U.S. government puts the legal smackdown on WikiLeaks?
Declan McCullaghFormer Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
It's set to become the new waiting game in Washington, D.C.: how long will it be before the U.S. government puts the legal smackdown on WikiLeaks?
That there is an investigation into how WikiLeaks obtained classified documents is, of course, no secret. In July, the Pentagon publicly confirmed a criminal probe into the matter.
A month later, that probe had expanded to include the FBI. "The Army's Criminal Investigation Division and the FBI are conducting an investigation into the leak of the documents," the Pentagon said on August 18.
Attorney General Eric Holder didn't elaborate much in his remarks to reporters today. "We have an active, ongoing, criminal investigation with regard to this matter," Holder said. "We are not in a position as yet to announce the result of that investigation, but the investigation is--is ongoing."
"To the extent that we can find anybody who was involved in the breaking of American law and who has put at risk the assets and the people that I have described, they will be held responsible," Holder said. "They will be held accountable."
Holder's comments leave open a crucial question, which is whether the investigators are looking at how WikiLeaks obtained the documents (not unlike probing a news organization's source), or if they're looking at whether WikiLeaks staffers violated criminal law and should be the ones indicted.
Pfc. Bradley Manning, allegedly WikiLeaks' primary source for the U.S. government's confidential files, was charged in July with a series of crimes including violations of the Espionage Act. If Julian Assange or other WikiLeaks editors worked with Manning to convince him to (allegedly) release the documents, that would implicate 18 USC 793(g), which punishes conspiracies to transmit national defense information.
And in fact, that's what the presumptive new chairman of the House Homeland Security Committee, Rep. Peter King (R-N.Y.), wants Holder to do.
Given Mr. Assange's active role in encouraging the theft and distribution of classified material, he should be held liable pursuant to section 793(g), which provides that if more than one person conspire to violate any section of the Espionage Act and perform an act to the conspiracy, then "each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy." In addition, Mr. Assange should be chargeable for obtaining classified documents pertaining to national defense initially acquired in violation of the Espionage Act and for willfully retaining such documents with the knowledge that he was not entitled to receive them.
King's letter was prompted by a massive document dump totaling over 250,000 State Department diplomatic cables, which WikiLeaks gave in advance to news organizations including Germany's Der Spiegel and Spain's El Pais, that began appearing on the Internet this morning. The White House has condemned the release, which Der Spiegel called "nothing short of a political meltdown for U.S. foreign policy."
The legal noose for WikiLeaks contributors appears to be tightening internationally. Australia said yesterday it's investigating whether today's release violated its laws (Assange has an Australian passport). And Sweden has issued an international arrest warrant for Assange's arrest, which has been upheld by an appeals court on sexual assault charges. Assange denies the allegations.
On the other hand, indictments and arrest warrants aren't very meaningful unless police can track someone down. Not only has Assange been far from eager to visit the United States, but he's now giving interviews from what is being referred to as an "undisclosed location."
Secretary of State Hillary Clinton, too, took aim at WikiLeaks today, telling reporters:
The United States strongly condemns the illegal disclosure of classified information. It puts people's lives in danger, threatens our national security, and undermines our efforts to work with other countries to solve shared problems...
This disclosure is not just an attack on America's foreign policy interests. It is an attack on the international community, the alliances and partnerships, the conversations and negotiations that safeguard global security and advance economic prosperity.
I will not comment on or confirm what are alleged to be stolen State Department cables. But I can say that the United States deeply regrets the disclosure of any information that was intended to be confidential, including private discussions between counterparts or our diplomats' personal assessments and observations...
I have directed that specific actions be taken at the State Department in addition to new security safeguards at the Department of Defense and elsewhere to protect State Department information so that this kind of breach cannot and does not ever happen again.
Relations between governments aren't the only concerns created by the publication of this material. U.S. diplomats meet with local human rights workers, journalists, religious leaders, and others outside of government who offer their own candid insight. These conversations also depend on trust and confidence.
Update 5:30 p.m. PT: The calls for an all-out campaign against WikiLeaks are growing more shrill. Tony Shaffer of the Center for Advanced Defense Studies, a former Defense Intelligence Agency officer, told Fox News that he would like to see military action against Assange: "I would look at this very much as a military issue. With potentially military action against him and his organization." (While the Obama administration no longer uses the term "enemy combatant," it claims (PDF) the authority to "detain" someone who has provided "substantial support" to enemies of the United States.)
Update 6 p.m. PT: White House press secretary Robert Gibbs today said: "WikiLeaks and people that disseminate information to people like this are criminals, first and foremost. And I think that needs to be clear." That's an indication the investigation has gone beyond WikiLeaks' source to the group itself. He added, when asked against legal action against WikiLeaks and Assange: "We are looking at a whole host of things, and I wouldn't rule anything out." And syndicated columnist Charles Krauthammer reportedly said on Fox News (I haven't seen this segment myself yet) that journalists should be investigated: "To say that if you are unlike CNN and Wall Street Journal, who apparently turned down collaboration with WikiLeaks, and you collaborate, we are going to look into possible prosecution."