The answer to the question posed above is that Assange is the symptom, not the cause. The real villain in this drama is SPC Bradley Manning, the 22-year old U.S. Army intelligence analyst who is reported to have been the source of the thousands of ified U.S. government documents that Assange released to the public. Manning, who has been arrested, is said to regard himself as a “whistle blower,” not a spy.

It seems clear, though, that Manning could and should be charged with treason under provisions of the Espionage Act of 1917, Section 2a, which provides that, “Whosoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to, or aids or induces another to communicate, deliver, or transmit, to any foreign government or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years.”

However, if any of these offenses are committed in wartime, the punishment can be increased, according to the Act, to include the death penalty. Inasmuch as the United States is presently engaged in two wars, in Iraq and Afghanistan, in which young men and women in uniform are dying, it would appear that Manning’s crimes would and should qualify for the death penalty. (It is recognized that many people are opposed to the death penalty per se for any crime, no matter how heinous. That is their opinion, and they are free to express it; but that is not the issue here.)

During the Cold War, foreign spies rarely were executed by the United States. Instead, they were traded for U.S. spies and/or human-rights activists held by Moscow, most often at Checkpoint Charlie in divided Berlin. Americans caught spying for the Soviet Union and its allies were not executed, with the exception of Julius and Ethel Rosenberg, who passed on information about the atomic bomb to Moscow. Even members of the infamous Walker spy ring and those like Ronald Pelton, Aldrich Ames, and Robert Hanssen cheated the “hangman” because U.S. authorities believed it was more important to fully debrief them and learn what they gave up to the enemy than to exact retribution.

In contrast, Private Manning has nothing of value to trade for his life. The U.S. government, and the American people, already know what he did – and there are no mysteries about how he did it. If found guilty – after an abundantly fair trial, of course – he should be summarily executed as an example to all, especially any other person contemplating the same kind of treason, to demonstrate, conclusively and for all time, that there is a price to be paid for selling out your country. To do anything less would be to make light of the damage that Manning has caused.

As for Assange, it is interesting that one of the articles posted on his behalf attacks the Espionage Act as “a huge danger to our open society.” That article* was written by Robert Meeropol, the Rosenbergs’ son, who claims that the U.S. government’s embrace of the Espionage Act “threatens every left-wing activist.” Well, one should hope so, in the case of any activist guilty of crimes of the same magnitude as Manning’s.

As to what should be done to Assange, in the best of all worlds he perhaps would be hit by a bus as he crosses a London street. But barring that happy coincidence, he should be arrested and tried, if possible, on charges relating to the illegal publication of ified information, which is also addressed in the Espionage Act. However, there is no certainty he would be convicted on such charges because: (a) He is not an American citizen; and (b) The Espionage Act was written nearly a hundred years ago and did not envision the worldwide web, or other contemporary methods of information dissemination, but was focused more on traditional publication outlets. Moreover, he clearly would not meet the generally accepted definition of a spy. But he obviously did know that the information he was releasing to the public was highly sensitive and not only could damage the United States (of which he reportedly has a visceral hatred), but also possibly even result in the deaths of U.S. allies and non-American informants abroad.

Another strategy that has been discussed might be to declare Assange an “enemy combatant” and seize him, whenever and wherever possible, and then incarcerate him indefinitely at the U.S. naval base in Guantanamo Bay.

Not incidentally, Senator Joseph Lieberman (I-Conn.) has introduced new legislation to clarify and strengthen both the language and the penalties relating to the publication of ified intelligence information. The legislation is entitled, appropriately enough, the Securing Human Intelligence and Enforcing Law Dissemination (SHIELD) Act.

Finally, it also seems obvious that the Pentagon is in many respects the other “real culprit” in this case. The very fact that, according to credible reports, an estimated 20,000 to 30,000 people had access to the same State Department materials that Manning had – and with little or no discernible need to view those materials – qualifies as incompetence of the first order, as does the equally appalling fact that those materials could so easily be downloaded.

Heads should roll – quite a few of them, and starting at the highest level. Anyone who thinks that judgment too harsh should ask himself (or herself) if a corporate CEO would be permitted to stay on the job after he lost all of his company’s trade secrets because he had been so careless or disengaged that he did not monitor the company’s IT security and/or hold subordinates accountable when it came to securing the company’s data? His stockholders and board of directors would demand his ouster. Senior Army officials, military as well as civilian, should perhaps take note and resign – and consider themselves lucky to get off so lightly.

In his public statements, Secretary of Defense Robert Gates himself has been far too gentle about the Wikileaks disclosures, passing them off as “embarrassing” and “awkward,” but also suggesting that they had, at best, only a “modest” impact on U.S. foreign policy. That, of course, is not the point. The real issues are Manning’s treason and the military’s failure to adequately protect the ified information in its possession. Surely the Secretary of Defense must find those issues more than slightly troubling and should therefore, at the very least, acknowledge a major failure of leadership within his department.

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*Robert Meeropol, “My Parents Were Executed Under the Unconstitutional Espionage Act – Here’s Why We Must Fight to Protect Julian Assange,” Current TV, 29 December 2010.

Neil C. Livingstone
Neil C. Livingstone

Dr. Neil C. Livingstone, chairman and CEO of ExecutiveAction LLC and an internationally respected expert in terrorism and counterterrorism, homeland defense, foreign policy, and national security, has written nine books and more than 200 articles in those fields. A gifted speaker as well as writer, he has made more than 1300 television appearances, delivered over 500 speeches both in the United States and overseas, and testified before Congress on numerous occasions. He holds three Masters Degrees as well as a Ph.D. from the Fletcher School of Law and Diplomacy. He was the founder and, prior to assuming his present post, CEO of GlobalOptions Inc., which went public in 2005 and currently has sales of more than $80 million.

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