|Because of new media technologies, Julian Assange has the same legal rights as The New York Times, even though he is a ‘malicious prankster’, according to Robert Grenier [GALLO/GETTY]|
The tone of the document is prim and earnest. The directive from the White House’s office of management and budget instructs that new information security procedures must be drawn up – and right away – to ensure “that users [of classified information systems] do not have broader access than is necessary to do their jobs effectively”.
Solid, if plodding, advice, that — as if official Washington were discovering the need for information security for the first time. By contrast, Hillary Clinton, the US secretary of state, looking like a school headmistress who has suddenly found herself the butt of an embarrassing student prank, adopted a tone of wounded dignity.
“I will not comment on or confirm what are alleged to be stolen state department cables,” she sniffed, before doing just that. And as for those guilty of perpetrating or facilitating this prank, “I want you to know that we are taking aggressive steps to hold responsible those who stole this information.”
Meanwhile, over at the department of justice, the man actually charged with bringing to book the miscreants responsible for Washington’s latest outrage, and perhaps for others to come, could not seem to command the same masterly tone.
Sounding wonkish and defensive, Eric Holder, the attorney general, could only manage the following: “To the extent that we can find anybody who was involved in the breaking of American law… they will be held responsible.”
One detected in that a certain lack of confidence that the law would be his friend in this venture, which Holder then went on to confirm: “To the extent there are gaps in our laws, we will move to close those gaps.”
Even in a place where political and bureaucratic obfuscation have been raised to the level of fine art, the degree of disingenuousness on display in Washington this week, in the aftermath of the massive revelation of internal state department documents by WikiLeaks, has been quite a sight to behold.
Actually leading the charge in this respect are the so-called mainstream media, who are now tut-tutting about the need for greater care and attention to protection of confidential government information.
My favorite, as usual, is the Washington Post, which scolds the department of defence for allowing Bradley Manning, a 22 year-old army private and the main suspect in a series of massive document leaks, to have been afforded such freewheeling access to troves of information far removed from any legitimate professional interest he might have had.
The newspaper notes approvingly the defence department’s newly-announced procedural changes designed to make it more difficult for other, would-be Pfc Mannings to download such information in bulk. No doubt the newspaper is confident that its own, higher-level sources will remain exempt.
Washington’s fecklessness and mendacity in confronting this latest WikiLeaks outrage falls into at least a couple of categories.
First, there is the matter of protecting sensitive information. Many of those caterwauling most loudly about the failure to keep secrets are the very souls who have excoriated the US government for failing to share information as widely as possible, in the context of a series of alleged “intelligence failures”, from 9/11 itself to the most recent case of Umar Faruq ‘Abd al-Muttalib, the would-be 2009 Christmas airline bomber.
The caterwaulers would argue, as the Washington Post has recently, that they have merely advocated wider intelligence-sharing on terrorist threats, and not expanding access to ambassadorial memorandums of conversation with Middle Eastern potentates.
What they fail to realize, however, is that at a certain level, security in large organisations is a matter of culture, of habits of mind. For quite a few years now, those in the US government inclined to argue in favour of protecting secrets have not been in the ascendency, to say the very least.
And those who advocate modest, human-based solutions to the problems of information sharing have been pushed aside in favor of the sweeping, technically-driven solutions which threaten to create more Private Mannings.
Whoever designed a ubiquitous military system for storing and sharing classified information which permitted a junior enlisted man of no particular account, located off in some minor military intelligence unit in Iraq, to have access to literally hundreds of thousands of classified documents on topics of little if any concern to him, as well as the means to independently download them, ought to be shot.
The problem, however is that no such person exists.
No doubt the responsibility for this outrage is widely shared. The many guilty parties should include not only those who made the proximate decisions, but those who encouraged an environment in which such enormous risks were tolerated.
Even more important, however, is the inconvenient truth lying at the heart of this whole matter: that even at this late date, the US government has not devised a straightforward, effective and intellectually honest means of dealing with the conflicting values at play when a serious leak of classified government information occurs.
This is true even in the context of normal press leaks, let alone when dealing with the issues generated by mass information-storage devices and the internet. The US government is well equipped to deal with cold-war-era espionage: Individuals providing classified information clandestinely to foreign – usually hostile – powers. The law here is quite unambiguous, and there is a large body of case precedents to back it up.
Where the press is concerned, however, the US government, even after many decades, still has not arrived at a clear, viable means of balancing the legitimate need for a free, open and unfettered press (to use an archaic term) with the equally legitimate government requirement to protect certain information for the public good.
In fact, there routinely are press leaks every bit as harmful as old-fashioned espionage. About the only thing one can say in favor of leaks, as against compromise of the same information through classic espionage, is that at least in the former case, you know when you’ve been robbed. Indeed, in the latest WikiLeaks case, the harm to national security and international relations is all the greater precisely because it was an open leak; at least a hostile power having acquired the same information would have treated it more discreetly.
As handcuffed as the US has been over ordinary press leaks, modern information media have made the problem and the challenge infinitely more acute. Anything even approaching the scope of these recent leaks would have been logistically impossible just a few years ago.
I have written in the past about my own suggested formula for dealing with leaks of national security information. The first point to stress is that the executive branch of government should not be the final arbiter of what is properly classified, or of what does genuinely great harm to national (and indeed international) security.
In the context of a potential criminal leak case, judges should make that determination, and a special judicial panel could be organized for the purpose.
Second, given the importance of independent news media and the threat of their being stifled for reasons related primarily to the political convenience of the powerful, there should be no prior restraint– that is, neither the US nor any government should have the power to bar the media from disseminating sensitive information which comes to it.
A small aside here: Given the ubiquitousness of the “new media” and of the technology which empowers it, virtually anyone can now qualify as a media outlet. Distasteful though it might be, and whatever the substantive differences among them, technology has put a malicious prankster such as Julian Assange on the same legal footing as The New York Times or The Guardian.
There is nothing to be done about it.
Once it is established by independent judicial authority, however, that a media leak has crossed the threshold to be considered a genuine crime, law enforcement in the US and elsewhere must be empowered to pursue the perpetrators vigorously.
As a practical matter, that means that media outlets– be they newspapers, WikiLeaks, or some young person operating from a bedroom in Estonia – must be on notice that they are liable, as enablers of a crime, to be compelled to appear before an independent grand jury, under threat of arrest for contempt of court, and required to reveal their sources – i.e., the actual perpetrators of the crime.
The locus of the crime, in other words, must rest with the individual who has violated the public trust, and not with the media – even when we are talking about an essentially malevolent actor such as Julian Assange.
If, therefore, the media reports concerning Private Manning are to be believed, the criminal in this case is already in custody, and there is little more to be done about WikiLeaks, at least for the time being. The point is not to be dragging media figures routinely into the courts.
The point is to create a positive tension in the system, utterly lacking now, whereby potential leakers and their would-be media outlets are mindful that when they place public safety at risk, they are likely to be called to account – the former as criminal defendants, and the latter as witnesses to a crime.
There are many in the US who would find my mild formula for dealing with the Assanges of the world quite unsatisfying. Some are crying out to indict Assange in the US under the 1917 Espionage Act, although legal experts dispute whether the statute applies here.
Others clamor for new legislation to deal with the novel threats of the internet age. Yes, the threat posed by new-age technology, which makes it possible to post huge volumes of purloined information in a location where much of the world can see it, does pose a qualitatively new and potent menace. In many respects, the internet makes the threat posed by old-fashioned press leaks pale in comparison.
But make no mistake: As much as Washington political and media figures would like to pretend otherwise, they cannot deal with the first without finally dealing with the fundamental issues posed by the latter. We can deal with WikiLeaks. But not without dealing with The New York Times and the Washington Post as well.
Robert Grenier is a retired, 27-year veteran of the CIA’s Clandestine Service. He was Director of the CIA’s Counter-Terrorism Center from 2004 to 2006.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.