By Andrew M. Borene -
Andrew M. Borene is an attorney and a former U.S. Marine intelligence officer. He is the editor of the American Bar Association's U.S. Intelligence Community Law Sourcebook: A Compendium of National Security Related Laws and Policy Documents. He has previously taught at the University of Minnesota's Humphrey Institute of Public Affairs.
The explosive growth of the internet and social media ensure that something as sensational as the disclosure of tens of thousands of pages of classified diplomatic and military plans and reports will be exploited by America's enemies.
If this is the new framework for play regarding classified government information and its unauthorized disclosure; then we, as a nation, absolutely require enhanced criminalization for espionage-related activity and a more robust counterintelligence capacity
The actions of wikileaks, and solicitations for more leaks by its founder Julian Assange, constitute a danger to the security of the United States as a nation and to our individual troops, civilians and foreign partners serving on our battlefronts.
So-called old plans or reports of past events can disclose the names of units, locations of bases, techniques and tactics, means of collecting targeting data, and times or locations of past attacks, along with battle damage or post-activity reporting. In an active conflict, this all has significant intelligence value to enemies who violently attack our personnel overseas every day.
The activities of wikileaks and Mr. Assange do not constitute journalism-- instead they stand as stark evidence of the worst things that can happen when someone without a commitment to American ideals or objectives gets a hold of classified information in today's information age. For the record, wikileaks is not an objective news outlet but a loose organization that opposes American policy in Afghanistan and elsewhere.
Mr. Assange has his defenders, some of whom consider themselves patriotic Americans with a civil disobedience perspective. They suggest that, although illegal, wikileaks serves an important societal function as a means of allowing security-cleared government personnel a mechanism for publishing allegedly criminal wrongdoing by Americans.
We should be prepared for such a defense. The subject matter of illegally leaked, but improperly classified information should be independent of the criminal case for its unauthorized disclosure.
There is always a political question outside the bounds of the law. As any self-described wikileaks "whistleblower" sits in jail, that person and their supporters could always write the President for a pardon.
But the people passing classified information to wikileaks, Assange, or others like them aren't whistleblowers. They are willful actors who become information agents for our enemies. They can compromise vitally important operational techniques related to the military, diplomatic, and intelligence activities of our government. They can get good people killed.
In times like this, in a nation of laws, we need to resort to our courts through criminal and civil litigation. There may not yet be a clear-cut statute that applies to a situation like this, but this issue is ripe and national security is at stake.
Any future enemy strikes on locations named in documents released by wikileaks could also serve as the basis for civil lawsuits by the American government, the injured, and the survivors of any killed.
Challenges to any litigation of course exist. There may not be an easy government criminal case against Mr. Assange or people like him. There may not be simple, direct causal connections for personal injury lawyers to illustrate to civil juries, showing just how casualties were sustained due to the activities of Assange and those like him. But challenges should not deter us from action.
The probability of success of litigation should not stand in the way of its inception. Too much is at stake if aggressive action is not taken to stop the bleeding of our country's classified information.
In the interim, and most effectively, our government can use the tools it has on-hand to investigate, prosecute, and punish those who cooperate with Mr. Assange and his colleagues. If a person chooses to intentionally send classified government information along to wikileaks or any other organization without authorization, then that person should face severe and swift legal prosecution with stakes of imprisonment or financial ruin.