We cannot secure liberty by ignoring the necessity of security, nor can we allow security measures to run rampant without oversight. Rather we must take appropriate steps to ensure that the security powers given to the executive branch are exercised thoughtfully and with care, and remain subject to review and oversight by both the judicial and legislative branches. This concept of checks and balances, a fundamental insight of the Framers of the Constitution, is as essential and applicable today as it was at the time of the founding.
What the WikiLeaks approach lacks is any sense of proportionality. The United States and other democracies have checks and balances—from congressional and parliamentary committees to inspectors general and independent prosecutors. These systems may be imperfect, but what ordered society has ever achieved perfection? In contrast, countries like China, Iran, North Korea, and other totalitarian regimes use government not to establish ordered liberty, but to suppress freedom. When global transparency zealots lump the United States in with the likes of North Korea as a legitimate target, they fail the common-sense test.
Furthermore, using Habermas to justify WikiLeaks just does not cut it. Much of what Habermas wrote in the 1980s was penned under the shadow of a massive corporate-government structure that seemed about to overwhelm the public space in modern Germany and crowd out private, individual voices. That was before the world of Web 2.0 has greatly empowered private voices in public spaces. In a world of social networking, citizen-journalists can write stories like the "Death of Neda" and actually drive the discussion among governments and the mainstream media. Cybercitizenry has never been more empowered. Do we really need impersonal, non-value-adding “services” like WikiLeaks to dump mounds of raw data on top of all these voices? And, if so, are free societies the highest value targets out there?
WikiLeaks has crossed the bounds of what is reasonable in societies that understand the concept of ordered liberty. The issue is not if WikiLeaks should be punished, but how. For starters, nations have laws. They should be applied to the maximum appropriate extent—up to and including the crimes of treason and espionage. And where perpetrators are convicted, prosecutors should press for the maximum penalties allowed.
Nations ought to also shame the most serious violators, explaining the difference between “ordered freedom” and cyberlibertinism. The cyberworld relies on the wisdom of crowds to distinguish the good stuff from the bad online. Governments must convince the crowd to turn its back on brainless actions like the WikiLeaks dump.
There are also things we should not do in response to WikiLeaks-like incidents. Yes, considering who is aided and abetted, it’s tempting to call such acts terrorism. But it would be a mistake to list WikiLeaks as a terrorist or terrorist-supporting organization. WikiLeaks did not use or threaten of violence for political purposes—a defining hallmark of true terrorists. Rather than cheapen the term “terrorist” by applying it to preening, self-important “editors,” let’s reserve that designation for deserving groups like al-Qaeda.
Likewise, it makes no sense to launch retaliatory cyberattacks to shut down WikiLeaks. Once the stuff has gone global, it’s too late to close the cyber-barn-door.
The WikiLeaks debacle demonstrates that governments aren’t yet ready to deal with the security challenges of a Web 2.0 world. At the outset of the disclosures, Washington was unable to come up with the right package of measures to stanch the flow. The government stuttered and stumbled for months as wave after wave of leaked document hit the Internet. It must be viewed as a cautionary tale showing why good governments must not be passive in dealing with online threats.
Unfortunately, WikiLeaks is not the worst of the problem. When secrets are dumped online, governments at least know where they are. Potentially more damaging are secrets that are stolen without the government learning of the theft until after the resultant carnage has occurred.
For twenty-two years, Robert Hanssen, an FBI agent in charge of ferreting holes in U.S. intelligence security, turned over classified information to the Soviet Union and later Russia. Unmasked in 2001, he pleaded guilty to thirteen counts of espionage. Social networking only increases the opportunities for communication between those who want to give away government information and those who want to get it.
Even before WikiLeaks, there were plenty of signs of bad days coming. In 2004, for example, Shannen Rossmiller, an independent researcher, stumbled across Ryan Anderson online. A Robert Hanssen-wannabe, Anderson was trolling the Internet for an al-Qaeda operative interested in information about his National Guard unit’s upcoming deployment to Iraq.
Posing as an al-Qaeda operative, Rossmiller tracked Anderson ’s IP address to Seattle, Washington. Deducing from their online exchanges that he was a member of the U.S. military, Rossmiller contacted the newly established Department of Homeland Security, which put her in touch with the FBI. The FBI began monitoring the correspondence with Anderson. In February 2004, they decided to act. Undercover agents met with Anderson in a Seattle parking lot, just days before he was to leave for Iraq with his unit. Anderson was arrested, prosecuted, and convicted of five counts of attempting to aid and provide intelligence to the enemy.