By Anne Lowe
While U.S. Secretary of Defense Robert Gates downplayed the international consequences of the most recent Wikileaks releases Tuesday, their impact may be most felt in terms of secrecy.
Some U.S. government departments have already made known their attempts to increase security measures, and some legislators members of Congress have even suggested declaring Wikileaks leader Julian Assange an enemy combatant.
From Secrecy News:
The Obama Administration should use all legal means necessary to shut down Wikileaks before it can do more damage by releasing additional cables, said Sen. Joe Lieberman on November 28.
Wikileaks leader Julian Assange should be designated an enemy combatant, suggested Rep. Steve King (R-IA) on the House floor yesterday. Then he could be moved over to a place offshore of the United States outside of the jurisdiction of the Federal courts , and adjudicated under a military tribunal in a fashion that was designed by this Congress and directed by this Congress. Thats what Im hopeful that well be able to do.
Such fantastic notions probably cannot survive the judgment of the U.S. Secretary of Defense that what is at stake is embarrassment and awkwardness, not the defense of the realm.
That does not mean that the policy consequences of the latest Wikileaks release will be insignificant. Information sharing within the government is already being curtailed, and avenues of public disclosure may be adversely affected by the Wikileaks controversy. In a November 28 email message to reporters, the Pentagon spelled out several security measures that have already been implemented to restrict and monitor the dissemination of classification information in DoD networks.
Bottom line: It is now much more difficult for a determined actor to get access to and move information outside of authorized channels, wrote Pentagon spokesman Bryan Whitman.
Meanwhile, the Office of Management and Budget ordered (pdf) each agency that handles classified information to perform a security review of its procedures and to reinforce the traditional need to know requirements that strictly limit individual access to classified information.
Any failure by agencies to safeguard classified information pursuant to relevant laws, including but not limited to Executive Order 13526, Classified National Security Information (December 29, 2009), is unacceptable and will not be tolerated, the OMB memo stated.
The possibility of prosecuting Wikileaks as a criminal enterprise is reportedly under consideration, and has been publicly urged by some members of Congress and others. The feasibility of such a prosecution is uncertain, and nothing quite like it has been attempted before.
The most promising legal avenue of attack against Wikileaks would seem to be a charge of conspiracy to violate the Espionage Act (under 18 USC 793g), based on the allegation that Wikileaks encouraged and collaborated with others in violating the terms of the Act. But these are dangerous legal waters, fraught with undesirable consequences for other publishers of controversial information.