According to an unprecedented legal theory apparently adopted by the Obama administration, persons and entities who leak or publish classified information are “enemies” of the United States punishable by death or life imprisonment. If this theory had been applied to recent leaks, it would have meant death or life in prison for Pentagon Papers leaker Daniel Ellsberg and the editors of The New York Times and The Washington Post who published them, as well as for Lewis “Scooter” Libby, who leaked a CIA agent’s identity, and Post columnist Robert Novak, who published the operative’s name.

This novel and potentially dangerous legal position came to light as the result of declassified Air Force documents released under the Freedom of Information Act. The documents show that officials investigating a computer systems analyst working for the Air Force for alleged sympathy with Julian Assange and the WikiLeaks organization expected to charge her with “communicating with the enemy,” a military crime akin to espionage that carries a maximum sentence of death. Officials concluded that the analyst had leaked no documents and thus committed no crime.

Thus the U.S. military and the Obama administration have designated Julian Assange and WikiLeaks as enemies of the United States—the same legal category as the Al-Qaeda terrorist network and the Taliban.

Assange, currently living at Ecuador’s embassy in London after Ecuador granted him diplomatic asylum, has long argued that if he is extradited to Sweden for questioning about sexual assault allegations, he would likely be extradited to the US and charged with espionage for publishing hundreds of thousands of secret US military and diplomatic cables. The Air Force documents at least partially verify Assange’s position, because they confirm that the government considers him and his organization “enemies of the state.”

At present, U.S. Army private Bradley Manning faces a court martia,l charged with aiding the enemy—identified as al-Qaeda—by leaking information that, published by WikiLeaks, became available to them. (and everyone else with an Internet conncetion) By the same logic, both Daniel Ellsberg and Scooter Libby—as well as their publishers—were also traitors, despite the fact that the Supreme Court ruled, in the case of New York Times v. U.S. (1971), that publication of the classified Pentagon Papers was protected by the First Amendment.

In both the Pentagon Papers and Wikileaks cases, one of the significant results of the leaks was the exposure of lies and deceptions by the U.S. government directed at the American citizenry. If the Obama administration continues to embrace its theory that all leakers are traitors, it will have the unavoidable effect of ensuring that such government dishonesty will go unexposed.

-Matt Bewig

To Learn More:

US Calls Assange “Enemy of State” (by Philip Dorling, Sydney Morning Herald)

US Investigates Possible WikiLeaks Leaker for “Communicating with the Enemy” (by Glenn Greenwald, The Guardian)

Air Force FOIA Response re WikiLeaks (United States Air Force) (pdf)