Yes, Julian Assange actually is a criminal

Glenn Greenwald took exception to my characterization of the WikiLeaks founder. Here's why it's accurate

Published December 22, 2010 6:01PM (EST)

WikiLeaks founder Julian Assange speaks to the media outside Ellingham Hall, the home of his friend, journalist Vaughan Smith, in Norfolk, England December 17, 2010. Assange said on Friday that he was the target of an aggressive U.S. investigation and feared extradition to the United States was "increasingly likely". REUTERS/Paul Hackett  (BRITAIN - Tags: POLITICS CRIME LAW MEDIA) (Reuters)
WikiLeaks founder Julian Assange speaks to the media outside Ellingham Hall, the home of his friend, journalist Vaughan Smith, in Norfolk, England December 17, 2010. Assange said on Friday that he was the target of an aggressive U.S. investigation and feared extradition to the United States was "increasingly likely". REUTERS/Paul Hackett (BRITAIN - Tags: POLITICS CRIME LAW MEDIA) (Reuters)

In my previous column for Salon, I cited the infatuation of many on the left with Julian Assange of WikiLeaks as evidence of a disturbingly casual approach to the rule of law among Americans of all political persuasions, along with the U.S. policy of targeted assassinations, preventive war and widespread toleration for illegal immigration and the use of offshore jurisdictions for tax avoidance.

Elsewhere in Salon, Glenn Greenwald took exception to my inclusion of the WikiLeaks founder in my list of scofflaws, claiming that Assange has committed no crime. Let me explain why I believe the campaign of Assange and his associates to obtain and publish vast amounts of classified material from the U.S. and other governments, as well as stolen private information from non-governmental organizations and individuals, is neither legal nor legitimate.

This controversy has nothing to do with views of current U.S. foreign policy. I denounced the Iraq War in advance in print, on the radio and on TV, and after it began in two books. I favor rapid disengagement from Afghanistan and a far more modest American military role in the world. And I agree with the late Sen. Daniel Patrick Moynihan that much, perhaps most, government secrecy is unnecessary and counterproductive. But everyone other than anarchists who oppose government of any kind must acknowledge the need for diplomats and military officers, as well as civilian officials, to be able to engage in confidential communications among themselves and with foreign governments without fear of unauthorized publicity. Even the government of an isolationist America would insist on that prerogative.

The U.S. government is reportedly thinking about prosecuting Assange under the Espionage Act of 1917, which makes it a crime to obtain or possess classified national security information, and/or the Computer Fraud and Abuse Act, which makes it a crime for hackers to obtain unauthorized information from any source, public or private. Assange’s defenders sneer at the Espionage Act as one of a number of repressive measures enacted by Congress and the Wilson administration during World War I. I'm no defender of World War I-era paranoia, as my German-born great-grandfather was a victim of it. However, if the Espionage Act did not exist, I would favor passage of some sort of reasonable act to protect legitimate government secrets, because democratic republics have a right to protect themselves from genuine spies and real traitors, as well as vengeful employees. If the perennial presidential candidate of the Socialist Party, Eugene Debs, whom the Wilson administration imprisoned for opposing the draft, had been elected president, I doubt that America's socialist commander in chief and chief diplomat would have looked kindly on unauthorized publication of classified government secrets.

Some suggest that Assange cannot be prosecuted under the Espionage Act, because he is a journalist and the federal government allegedly lacks the power to enjoin publication of stolen secrets in advance or to punish journalists for publishing them. Is WikiLeaks a genuine news organization? The haste with which WikiLeaks is rewriting its own history, in the wake of Assange's arrest, in itself should raise doubts. According to the New York Times:

Meanwhile, WikiLeaks is taking steps to distance itself from the suggestion that it actively encourages people to send in classified material. It has changed how it describes itself on its submissions page. "WikiLeaks accepts a range of material, but we do not solicit it," its Web site now says.

It also deleted the word "classified" from a description of the kinds of material it accepts. And it dropped an assertion that "Submitting confidential material to WikiLeaks is safe, easy and protected by law," now saying instead: "Submitting documents to our journalists is protected by law in better democracies."

WikiLeaks is also taking steps to position itself more squarely as a news organization, which could make it easier to invoke the First Amendment as a shield. Where its old submissions page made few references to journalism, it now uses "journalist" and forms of the word "news" about 20 times.

Even if WikiLeaks is defined as a news organization, American law allows both prior injunctions halting publication of government secrets and prosecutions of media organizations following publication, in certain circumstances. In New York Times v. Sullivan, the Pentagon Papers case, the Supreme Court held that the government failed to pass a heavy test in trying to prevent publication of state secrets in advance -- but conceivably in some cases that test could be met. And according to the Court, the federal government had the right to prosecute the New York Times and the Washington Post after publication, although it chose not to. The government's case against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers was thrown out because of the gangster-like methods used against them by Richard Nixon's sinister "plumbers," not because the government lacked the power to prosecute them under the Espionage Act.

The case against Assange under the Computer Fraud and Abuse Act would be much easier to make if, as has been alleged, he conspired with Pfc. Bradley Manning to steal and make public hundreds of thousands of classified U.S. military and diplomatic documents.

The Obama administration might well decide not to prosecute Assange, for fear of making him a martyr. But a strong case can be made that he has both committed crimes and conspired with others to do so.

So much for law. What about legitimacy?

Some argue that it would be hypocritical for the U.S. government to prosecute Manning and Assange, unless it also prosecutes government officials who use selective leaks to journalists to promote their own political agendas, as well as the established media organizations that publish the leaks. This is a stretch. There is little resemblance between a media organization that summarizes leaked information from a Pentagon or State Department official, following elaborate precautions and internal discussions among the publisher and the editors, and a sect of anarchists who dump stolen documents from more than a hundred countries into cyberspace.

Legitimate news organizations do not withhold stolen government secrets so that their publishers or editors can blackmail government prosecutors. But Assange's attorney has promised that if anything happens to his client, WikiLeaks will release a "nuclear bomb" of even more damaging information:

Mr Assange's British lawyer, Mark Stephens, warned today that WikiLeaks was holding further secret material which he dubbed a 'thermo-nuclear device' to be released if the organisation needed to protect itself.

He said many of the papers being retained contained 'material of equal importance to news-gathering' as those already published ...

'This is what they believe to be a thermo-nuclear device in the information age ...'

The 'doomsday files' which have been downloaded from the WikiLeaks website by tens of thousands of supporters are understood to include information on Guantanamo Bay, and aerial video of a U.S. airstrike in Afghanistan that killed civilians, BP reports and Bank of America documents.

If Assange sincerely believes that he needs to blackmail the U.S. government into refraining from assassinating him, he is delusional as well as conceited.

Assange's supporters ought to be upset by the revelation that the supposed champion of transparency has deliberately been holding the good stuff back. After all, authentic whistle-blowers would release the most damaging information at the beginning -- not withhold it as a bargaining chip to intimidate prosecutors.

Nor would genuine whistle-blowers promise, as Assange's WikiLeaks organization has done, that material damaging to a certain "big bank" will be dumped in early 2011. That is the sort of self-aggrandizing announcement that criminal lunatics and terrorists send to public officials and media offices, warning of forthcoming crimes or attacks.

If WikiLeaks or a similar network blackmailed a bank or corporation into paying hush money in return for the suppression of embarrassing material, would the rest of us ever find out? According to the Huffington Post:

Assange also told the Times that he had enough information to force an executive at a major American bank to resign. There is speculation that Bank of America is the target after previous interviews indicated he had received information from the hard drive of one of the bank's executives. The bank recently stopped processing WikiLeaks payments.

If Bank of America had continued to process WikiLeaks payments, would its executives be safe from the threat of embarrassing disclosures by WikiLeaks and cyber-attacks by criminal hackers who idolize Assange?

What is to prevent such secretive organizations from using hacked information to settle personal scores, or selling stolen information secretly for profit, or using selective and misleading disclosures to manipulate public debate, as governments and partisan media organizations do all the time? If they forged documents, they could always claim that the governments identifying the forgeries were engaged in cover-ups, and count on their supporters to believe them, couldn't they?

If WikiLeaks can steal and publish information from governments and banks and businesses with impunity, what is to prevent it or similar groups from publishing the illegally hacked e-mail correspondence or online records of any individuals they dislike? Are any of us safe from having our privacy violated by gangs of information vigilantes who conclude that we are enemies and must be publicly shamed?

An invisible, stateless, global Panopticon, manned by hidden zealots subjecting everyone in every country to potential surveillance and public humiliation, is a Foucaultian nightmare. Here is the creepy message sent to Wired magazine before a wave of criminal cyber-attacks launched by supporters of Assange:

We are the clear logic used to unveil wrongdoing. The general public, clouded by misleading information mostly by the media with a political agenda, fails to see and understand this wrongdoing. Because of this, those who do the wrongdoing escape unpunished. Anonymous is here to ensure punishment does not go unserved to those who deserve it.

The masked vigilante Batman could not have put it better, in a note to the citizens of Gotham City. This juvenile posturing is worthy of the Symbionese Liberation Army or Subcommandante Marcos or the Unabomber. Or Julian Assange in his online anarcho-libertarian manifesto, according to which all public and private organizations are authoritarian conspiracies -- except, of course, for his own organization.

Like other illiberal sects, the cult of Assange rationalizes its contempt for law and ordinary politics by dismissing the "general public" as passive fools brainwashed by the "media with a political agenda." So much for democracy.

As in other forms of anti-liberal thought, like anarchism and fascism and Marxism-Leninism and radical Islamism, the central idea of cyber-anarchism is that society must be saved by a self-appointed vanguard of vigilantes who themselves are above the law and whose motives are beyond question: "Anonymous is here to ensure punishment does not go unserved to those who deserve it." So much for liberalism, which dreads arbitrary power, fears hero worship and assumes that charismatic rebels as well as bureaucratic authorities are likely to be fallible, biased and corrupt.

Cult-like political and intellectual movements can be identified by their nonfalsifiability. Cultists deflect criticism by defaming critics. If you criticize Freudianism, you must be sexually repressed. If you criticize Marxism, you must be bourgeois or brainwashed by the bourgeoisie. If you criticize WikiLeaks, as I have done, you must be an agent of the authoritarian "national security state" or its brainwashed dupe. According to Assange himself, Mastercard, PayPal and Visa, which have refused to process money for WikiLeaks, are "instruments of U.S. foreign policy." By the logic of the cult, the two Swedish women who have accused Julian Assange of sexual abuse can only be part of a global conspiracy at the highest levels to bring him down. The Birthers and Birchers and Truthers now have company.

Vice President Joe Biden went too far in referring to Assange as a "high-tech terrorist." Assange and his co-conspirators are better described as vandals. But the strategy of Assange and the criminal leakers and criminal hackers who support him is similar to that of terrorists who seek to provoke over-reactions by the governments they oppose. This point has been made by a thoughtful American analyst who recently compared the strategy of Assange's cult to that of al-Qaida:

These kinds of disclosures will end up subverting American imperial power, as [Assange] sees it ... It will drive government and the Pentagon, and the military industrial complex, into further degrees of secrecy which will essentially paralyze it and make it less effective and more corrupt, and that will cause it further to collapse in on itself precisely because openness is such an effective attribute of large organizations.

Who is this American analyst who pointed out that Assange's intention is not to make American democracy work better, but rather to "paralyze" the U.S. government and make it "less effective" and "corrupt" so that it will ultimately "collapse"? None other than Glenn Greenwald.

By Michael Lind

Michael Lind is the author of more a dozen books of nonfiction, fiction and poetry. He is a frequent contributor to The New York Times, Politico, The Financial Times, The National Interest, Foreign Policy, Salon, and The International Economy. He has taught at Harvard and Johns Hopkins and has been an editor or staff writer for The New Yorker, Harper’s, The New Republic, and The National Interest.

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