Although the exact year it gets to the Supreme Court may be different, you can be sure that history is marching all of us to that case, and I’m surprised we haven’t gotten there already. Of course, history has a tendency to send mixed signals, and I may get caught with my pants down about this (I wouldn’t be the first). Suffice it to say that, eventually, WikiLeaks will be shut down. That’s the easy part. But my crystal also says that its owner, Julian Assange, will be arrested, probably outside of the United States, but that he’ll probably wind up here after all challenges to extradition are exhausted. In fact, the most likely cause for delay is if he’s caught in a country that wants to try him first. However, it seems inevitable that he will face trial here eventually, if only because the President (Obama or….?) won’t be able to avoid the thankless job. And it should even get uglier because an untold number of associates will be tried as well, many of them separately.
The more interesting question is how the various interest groups will partner up in exploiting the case. Visualize, if you will, that Assange is a human tennis ball who will get whacked over the net on Justice Court center. The teams will slam the accused in rotation, in no particular order, because all parties will try to score points any time they feel like it. Here is my preliminary breakdown:
1. Free press absolutists v. Security Warriors
On one side will be those who argue that the boundaries of the law must allow for the protection of the free exchange of political speech, and that a ruling that cites an overly broad authority to punish Assange will weaken this bedrock liberty. The First amendment has had a number of proponents of this “hands off” position — Justice Hugo Black is often cited — and you can expect it to be given a loud voice in the argument. Certainly they will look for procedural defects in the government’s case as a way to prevent the Court from setting what they consider dangerous precedent.
The opposition will be staunch defenders of a sovereign nation’s right to defend itself from all enemies, whether foreign or its own citizens. They will cite examples where the Court found that the rights of a free press must be pushed aside when people’s lives are put in danger by the release of classified information. Even so, the more conciliatory of this group will try to advance a “middle” position that tries to avoid any ruling that flat-out denies First amendment protection for the press. These national security “moderates” will probably think such a broad ruling is not necessary for any conviction to be upheld, but there are surely others who feel it’s time for the Court to put the press “in its place.”
2. The “Recognized” Press v. the “Co-conspiracy” Theorists
A fascinating sideshow of the trial may be the fight between defenders of “recognized” press organs, such as The New York Times, who contend that they are only observers like the rest of us, and, opposing them, the rabid security partisans who want to blur the distinction between the press and Assange’s organization. The latter group will call for an investigation of the media’s contacts with WikiLeaks before the actual publication of the classified material. They will say that the media was aware of the thefts ahead of time and, simply by remaining silent, abetted the crime by sending the message that they would not interfere, making them, in effect, co-conspirators. They will also say that the media’s silence was really a “go-ahead” signal that the classified documents would be published just as soon as they appeared on WikiLeaks, thereby facilitating the greatest possible exposure. After all, the media can disseminate to many millions, while WikiLeaks remains an obscure oddity.
Of course the media will dispute this, saying that the material was never leaked to them directly, and WikiLeaks never told them the names of the cyber-thieves. They will also say that they never made any “deals” with WikiLeaks, and only published what was already made publicly available on WikiLeaks’ own website.
3. Free Internet advocates v. Government Control
The always simmering conflict between the free internet absolutists and government protection forces will boil into a frenzy. The case will provide the perfect opportunity for some governments to demand multi-national controls on the internet that will try to prevent anything like WikiLeaks from ever happening again. The trial will be the perfect opportunity for them because people will see for the first time how the conspiracy evolved, and it will be appalling. The security demons will hammer away at how easy it was for the plan to develop because Assange was so confident he could gather and control the necessary servers without anyone suspecting what he was up to.
Naturally, there is an opposition that sees the internet as the one place where governments cannot interfere with the free flow of information. They will say it exists in an unstructured area that is truly global in dimension, and therefore beyond the control of any nation’s laws or, indeed, any system of control by international law. They will not deny that the internet can be misused to evade all legal restraints, even to the point of aiding terrorism. So be it. Of course, this argument is super-extremist, and will not be afforded serious concern. Not by you and me, anyway. But the media is another story: its very wackiness will make it hotly debated by red-faced pundits of all persuasions, generating huge profits along the way.
4. Democrat v. Republican
If the timeline I’ve described holds up, it will be Obama’s baby. So what possible grenades can he expect to be tossed by the Republicans? That’s trickier because they can’t appear to be sabotaging the government’s case. So any kind of sympathy for Assange is out of the question. And it goes without saying that one of the diciest parts of the trial will be when the government balks at the witness list for the defense, citing national security. The Republicans will absolutely not pull away from that position, as John Yoo would tell you. I surmise, instead, that the record of the government’s policy towards WikiLeaks, including possible contacts — most likely negotiations between Assange and the penetrated government agency — will be where the Administration will be most vulnerable. If there is a paper or cyber trail of negotiations where the government sought to minimize the damage, Republicans might say that this only emboldened Assange and his confederates, and was responsible for all of the leaks that came after. But this frame of attack won’t be used if the Bush presidency had its own record of accommodation.
Of course I could be totally wrong that Assange will be apprehended at all. Maybe he’s using the Bin Laden playbook, or is just the luckiest man alive. Certainly he hasn’t slowed down, as shown by an announcement that a huge and damaging cache of emails will be released by WikiLeaks this weekend. We’ll have to see. But one thing is certain: WikiLeaks exists and survives within an internet with almost no barriers, and that the security of all countries is thereby placed at risk. From that perspective, Assange’s actual motives are irrelevant. He may believe that he is prudent, responsible and pure of heart. But terrorists and traitors don’t care about that. To them, he is only an enabler whose platform will only serve their goals of mass destruction and chaos.