December 12, 2010 | NY Daily News

How to Get Julian Assange

Julian Assange is the impresario of the WikiLeaks cyber-war against the United States. By disclosing national defense secrets allegedly purloined by a rogue soldier, he has damaged American combat operations, intelligence collection and diplomacy. He seeks to render our government dysfunctional, undermining our capacity to pursue national interests and defend national security.

And he's far from done. Assange and his accomplices anticipate rolling out additional thousands of documents, revealing U.S. military strategy, identifying informants and exposing sensitive diplomatic exchanges. They also threaten to disrupt the U.S. financial sector.

Plainly, WikiLeaks is a serious national security problem. The website, moreover, poses daunting tactical challenges for a government desperate to shut it down. Traditional foreign threats to U.S. security can be addressed effectively by the familiar tools of statecraft: diplomatic arm-twisting, intelligence operations and, when necessary, military force. WikiLeaks is a novel threat. Its weapon of choice is explosive information, not explosive devices.

Most people grasp that keeping secrets is essential to our security. As General George Washington put it, the “necessity of procuring good intelligence is apparent and need not be further urged … Upon secrecy, success depends in most enterprises …    and for want of it, they are generally defeated.”

Still, when intelligence leaks confirm the wrongheadedness of various policies, an administration's domestic political opponents tend to be less than zealous about shutting off the spigot. America's foreign detractors may be more amused than outraged. In sum, cyber-war attacks do not inspire the sense of urgency prompted by terror attacks. There is ambivalence, a lack of political will, when it comes to aggressive countermeasures.

That leaves prosecution as the response of choice. This is unsatisfying, too. When those who beleaguer us are non-Americans operating outside our borders and thus beyond the grasp of our investigators and the writ of our courts, legal challenges abound.

Does the U.S. really have jurisdiction over these extra-territorial affronts? Even if our law says yes, will other nations honor that conclusion? And jurisdiction aside, is Assange actually a criminal or just a muckraker whose vexations must be tolerated lest free press rights be imperiled? These knotty questions could take years to resolve – allowing WikiLeaks to continue its anti-American campaign.

Domestic prosecution is unlikely to stop Assange any more than it has stopped Osama Bin Laden, who has been under U.S. indictment since 1998. Nevertheless, the Justice Department must try. It is not the task of federal prosecutors to capture Assange. Instead, they must build the best case they can. A compelling case may help persuade our allies to extradite Assange, and it will ensure that we are ready to proceed against him however long that takes.

Though initially slow to react to WikiLeaks, the Justice Department has stepped up its investigation. Word is, an indictment may be coming. This has spurred debate over whether Assange, an Australian national who is imprisoned in England and whose WikiLeaks site operates outside U.S. territory, may be charged with American crimes.

On close scrutiny, the claims of WikiLeaks apologists melt away.

First, because Assange is unabashedly conducting espionage: He has abetted the theft of national defense secrets with the aim of revealing them and damaging the U.S. Nothing more is required for conviction under the federal Espionage Act. Assange's defenders counter that he is not the U.S. government official who purloined our secrets, nor a conventional spy who handed them over to Al Qaeda or some hostile state. These are red herrings. Our law obliges prosecutors to prove only that a defendant came into unauthorized possession of sensitive intelligence, knew it could be used to harm our nation and disclosed it to others not authorized to have it. The fact that the actual stealing and harming was done by others is beside the point.

WikiLeaks fans next attack allegations of espionage on jurisdictional grounds, arguing that the overseas acts of non-Americans fall outside the reach of our laws. As the Congressional Research Service notes, however, espionage is among the plethora of U.S. penal laws given extraterritorial effect. What's more, Assange appears to have encouraged traitorous U.S. officials to steal classified information and transmit it to WikiLeaks for disclosure.

That would raise the specter of criminal conspiracy – and no matter where they are located, conspirators are vicariously responsible for the acts of their American confederates.

Further, Assange's champions portray him as a journalist who purportedly enjoys the sweep of our First Amendment's protections. This claim makes three erroneous assumptions. To begin with, free speech and free press rights do not immunize journalists from liability. In the seminal Pentagon Papers case, the Supreme Court held that no prior restraints could bar publication; the justices did not shield journalists from post-publication prosecution or civil suit for writings that violate the law. Free speech has never been understood to permit libel, obscenity or incitement to violence, nor does it green-light espionage and giving aid and comfort to America's enemies.

Second, let's take as a given that a free society must allow the press a wide berth, and thus that prosecutors should ignore all but the most egregious cases involving journalists. Assange is not a journalist. He is a conspirator in an espionage enterprise. A journalist aims to inform; Assange aims to destroy.

But for the sake of argument, let's pretend that the First Amendment insulates the press and that Assange is a journalist. Even then, the protections of our Constitution would be unavailing. In large measure, the Constitution was adopted to secure the United States from foreign threats. The rights vouchsafed by it protect members of our national community from arbitrary government action. They are not a safe harbor for aliens outside our country whose only connection to our body politic is hostile.

Julian Assange should be indicted for espionage, and every effort should be made to extradite him to the United States. We may never get him to an American courtroom. But if we do, he is likely to be convicted.

In the interim, he will bear the taint of a wanted outlaw, drastically diminishing WikiLeaks' ability to raise funds, conduct business and further harm the United States.

McCarthy is senior fellow at the National Review Institute and author of “The Grand Jihad.”

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