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WikiLeaks, Treason, and Plot

You can’t make any WikiLeaks-related calendar date fit the Gunpowder Plot ditty:

Remember, remember the fifth of November:
Gunpowder, treason, and plot!

But as yet another historical analogy, the Gunpowder Plot has illuminating features. WikiLeaks plays a role similar to that of gunpowder in the Gunpowder Plot. Like the 36 barrels of gunpowder deployed by Guy Fawkes under the House of Lords in 1605, WikiLeaks is a fascinating agent — the iconic tool of its technological age — giving unique shape and unprecedented scope to a treasonous impulse. And as with the Gunpowder Plot, the real story with WikiLeaks and the Web isn’t the technological agent; it’s the treason.

In this regard, I endorse the related point made on Friday by “Zombie” at Pajamas Media. The criminal act in the case of the WikiLeaks data dumps was committed by the person with the government clearance who made unauthorized copies of classified documents and turned them over to WikiLeaks. The individual charged with these crimes is Private First Class Bradley Manning, formerly an Army intelligence analyst. He is being held in the Quantico brig until his court-martial date in 2011.

Unsavory as Julian Assange is, it’s not clear that he has committed a crime with his WikiLeaks publications. He has never held a U.S. government clearance. He’s not even an American citizen. It’s not at all certain that he could legitimately be prosecuted for failing to protect U.S. government information. European nations — Britain, Sweden — could reasonably balk at extraditing him for prosecution in the U.S.

Meanwhile, Americans should think hard about how much Web oversight we want to cede to the federal government (or to foreign governments) in response to the WikiLeaks disclosures. The Internet certainly accelerates and amplifies the effects of the crime in this case. There is a sense in which the prospect of Internet publication justifies calling this treason, rather than merely a disclosure crime (which is what Manning is charged with). The managers of WikiLeaks are not themselves known to be agents of an enemy government; it is Manning’s pursuit of damaging, high-profile Web publication that makes it clear he intended to act against his country’s interests in wartime.

But we should note that the military already has an elaborate set of rules for information security. The problem in this case, if Manning’s own account is valid, is that some of those rules were not being enforced in his work facility in Iraq. There is nothing unusual about junior personnel having access to secret information; intelligence analysts need it to do their jobs. But Manning says he took writable CDs into a secure area and pretended to listen to music from them while copying files to them on a secret-level computer. Everything about this is a breach of sound security policy, and the military is well aware of that.

I signed a dozen oaths in my 20 years in Naval Intelligence to never do — on pain of severe penalties — what Bradley Manning is charged with doing. The rules to prevent it have long been in place. The apparent systemic failures in this case were the poor IT security at Manning’s former command and the inattention of supervisors to the red flags in Manning’s personnel profile, such as his propensity to get into fights with other soldiers. Better application of prudent policy guidelines could well have prevented the whole incident.

Expanding government supervision and control of the Internet, however, would be a disproportionate and mistargeted response. As with gunpowder, the inherent nature of the tool can’t be altered; it can only be made the pretext for restrictions and limitations on the human users. And as with 17th-century England’s prohibitions on the ownership of gunpowder by Catholics, such regulatory prophylaxis invites invidious application.

Criminalizing the role of Julian Assange, meanwhile, could easily carry unintended consequences. We in the liberal nations are not always aligned against the disclosers of government secrets. Should Iran or Cuba be able to demand extradition of a foreigner who publishes their governments’ secrets? Should Russia or China? There is the real danger of a misapplied remedy here. Bluster from our senators is about as close as we need to get to making bad law on the basis of a hard case.

The gunpowder analogy isn’t perfect. But the last two lines of the Gunpowder Plot ditty frame the correct priority for addressing the WikiLeaks Plot:

I see no reason why Gunpowder treason
Should ever be forgot.


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