No Comment — March 19, 2010, 10:47 am

The Pentagon Loses a Skirmish with WikiLeaks

What does the Pentagon have in common with North Korea, China, Zimbabwe, and a number of private Swiss banks? They all feel threatened by WikiLeaks, the Internet service that offers whistleblowers an opportunity to publish documents that expose corruption and wrongdoing by state and private actors. This week, WikiLeaks published a 32-page secret Defense Department counterintelligence study of WikiLeaks, which suggests that the American military was preparing to (or perhaps even did) attempt to hack into and shut down the site:

(S//NF) The obscurification technology[9] used by Wikileaks.org has exploitable vulnerabilities. Organizations with properly trained cyber technicians, the proper equipment, and the proper technical software could most likely conduct computer network exploitation (CNE) operations or use cyber tradecraft to obtain access to Wikileaks.org’s Web site, information systems, or networks that may assist in identifying those persons supplying the data and the means by which they transmitted the data to Wikileaks.org.

The report expressly cites China, Israel, North Korea, Russia, Vietnam, and Zimbabwe as nations that have taken steps against WikiLeaks, and it suggests other actions that could be taken by the United States. Noting that WikiLeaks relies upon “trust as a center of gravity by protecting the anonymity and identity of the insiders, leakers or whisteblowers,” it proposes that

The identification, exposure, termination of employment, criminal prosecution, legal action against current or former insiders, leakers, or whistleblowers could potentially damage or destroy this center of gravity and deter others considering similar actions from using the Wikileaks.org Web site.

What has the Pentagon so riled up? WikiLeaks published documents about U.S. equipment deployed in Iraq and Afghanistan, materials on the use of certain gas agents in Iraq, and the Standard Operating Procedures for Guantánamo (SOP), which established in the minds of many critics (and legal authorities around the world) that the Bush Administration had in fact embraced practices designed to abuse or mistreat prisoners there and conceal the details of their treatment from the public and from the Red Cross. Cross-referencing the SOP against conduct reported in the NCIS investigation into the three alleged “suicides” of June 9, 2006, was, for instance, a principal tool used by researchers at Seton Hall Law School to discredit the NCIS conclusions. If those conclusions were accurate, then prison guards were engaged in systematic violation of fundamental provisions of the SOP with no disciplinary consequences.

Each of these disclosures was intensely embarrassing to the United States, leading to press coverage that tended to show that the United States was acting in conscious disregard of its legal obligations. But the Pentagon study turns this around:

Wikileaks.org is knowingly encouraging criminal activities such as the theft of data, documents, proprietary information, and intellectual property, possible violation of national security laws regarding sedition and espionage, and possible violation of civil laws. Within the United States and foreign countries the alleged ?whistleblowers? are, in effect, wittingly violating laws and conditions of employment and thus may not qualify as ?whistleblowers protected from disciplinary action or retaliation for reporting wrongdoing in countries that have such laws. Also, the encouragement and receipt of stolen information or data is not considered to be an ethical journalistic practice.

By this reasoning, every time a newspaper encourages a whistleblower to recount his experiences or to share a document that confirms them, the journalists are engaging in a criminal act. This suggests that the Pentagon’s copy of the U.S. Constitution is missing the First Amendment, or perhaps that the Defense Department has secured another one of those dodgy OLC memos stating that the First Amendment no longer applies to it.

The Pentagon study, which is classified “secret/noforn” is also revealing of the current Pentagon practice of classifying documents as “secret” because they would be embarrassing if published. The report draws entirely on public documents and public source materials, so nothing contained in it is in fact “secret.” In an ironic twist, the memo itself helps provide a justification for the existence of websites like WikiLeaks.

In 1960, a congressional committee, recognizing the need to rein in the extravagant claims of secrecy that were thriving in the Department of Defense and intelligence community, observed that

Secrecy—the first refuge of incompetents—must be at a bare minimum in a democratic society, for a fully informed public is the basis of self-government. Those elected or appointed to positions of executive authority must recognize that government, in a democracy, cannot be wiser than the people.

A young congressman from Illinois who supported the legislation put it just as sharply, saying that the forced disclosure of government information

will make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that people should be denied access to information on the conduct of government or to how a …. government official is handling his job. Public records, which are the evidence of official government action, are public property, and there should be a positive obligation to disclose this information upon request.

His name was Donald Rumsfeld.

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