In a published FOIA request, an Airman stationed in the UK was investigated after a mental breakdown caused by conflicting values of US military’s mission and her own political beliefs. She was found to sympathize with Bradley Manning, Julian Assange, and Wikileaks. She had admitted to communicating her political ideas with various organizations known for anti-war/anti-military sentiments on Twitter and to a UK journalist. She also attended the Julian Assange Trial. However, her own admission and tweets revealed that she was never asked to release any intelligence to these groups and denied volunteering any intelligence to any journalist or group. The US Airforce Office of Special Investigations filed a complaint report on matters alleging “Communicating with the Enemy.”

The Uniform Code of Military Justice (UCMJ) Article 104: Communicating with the Enemy states:

“Any person who–
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;
shall suffer death or such other punishment as a court-martial or military commission may direct.”

Who is the enemy in this document? Is it Julian Assange? Wikileaks? Journalists? Bloggers? Social media users? Those opposed to an unconstitutional and failed foreign policy? Anti-war organizations? The leaked document does not directly point to any person or organization but acknowledges who the Airman was in contact with and her activities surrounding her political beliefs. But, constitutionally speaking, who gets to determine the enemy?

The Constitution does not provide any structure to determine an enemy. An enemy could be those the US is at war with. Congress has the power to declare war but there is no framework as to what constitutes a declaration of war. In Federalist Paper number 3, it states, “The just causes of war, for the most part, arise either from violation of treaties or from direct violence.”

Unconstitutional actions between the executive and legislative branches have compounded over time. Each unraveling the next thread that composed the Founder’s Vision and Constitution. The advent of the War Powers Resolution to the current Authorization of the Use of Military Force, now unconstitutionally lay the powers of war and crimes before the President.

According to the Constitution, the President is to only have war time powers after a declaration of war has been declared. In that instance, the President becomes the Commander-in-Chief to the Army, Navy, and state militias. He does not get to declare the enemy.

However, since 1973, The War Powers Resolution has authorized the President circumvent the Constitution by bypassing Congress’s declaration of war. It gives the President, “in the absence of a declaration of war, in any case in which United States Armed Forces are introduced” into any and all hostilities. Since 1973, “Presidents have submitted a total of over 120 reports to Congress pursuant to the Resolution.”

Since the War Powers Resolution, Congress has not had to declare any war but vote for a Joint Resolution. All responsibility is given to the President. In 2001, “Congress passed the Authorization of the Use of Military Force (AUMF). The AUMF, empowers the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The AUMF doesn’t define any certain enemy but broadly allows anyone to be defined by the president. Now the responsibility declaring an enemy directly falls on the President.

A year later, the AUMF expanded the AUMF in 2002 into Iraq. Not only did Congress give up responsibility once again to the President, it also justified it by noting the United Nations Resolution 660 and 678.

Due to the vague wording in the AUMF, the President has all unilateral power to determine whom the enemy or enemies are and how the use of military force will be used on them. As Wikileaks puts it, “By deeming them (Julian Assange and other contributors to Wikileaks) the “enemy” they can be treated under the laws of war which could include killing, capturing, detaining without trial etc.”

In another section of the constitution, a criminal (not an enemy) can be constitutionally identified. Under Article 1 Section 8 Clause 10 of the Constitution, Congress is given the power, “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” The power given to Congress, and not the President, to define and punish felonies of offenses in international law are vague. Some relate to Americans only, while some relate to others in jurisdictions outside of the US. However the Espionage Act is listed in, Extraterritorial Application of American Criminal Law , as a theft in which the federal crime is subject to federal prosecution when committed overseas.

No where does it authorize the President that power. Currently, the modified Espionage Act has been used 7 times during the Obama administration. The Espionage Act consists of many sections such as: Gathering or delivering defense information to aid foreign government; photographing and sketching defense installations; use of aircraft for photographing defense installations; publication and sale of photographs of defense installations; and disclosure of classified information. ProRepublica released an acticle containing a timeline of the uses of the Espionage Act. A Russia Today article shows the seventh person to be charged. Before, Obama, the modified Espionage Act has been used only 3 times. All those prosecuted under the espionage act, have been government employees with a security clearance.

However, Julian Assange is not government employee with a security clearance. He is editor in chief and the founder of Wikileaks. So the next question is, is this a freedom of press issue or an espionage issue?

This very question was addressed by the Supreme Court when the The Pentagon Papers were printed in the New York Times and Washington Post. The Supreme Court ruled that, “In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment.” They continued, “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

The New York Times, The Guardian, and Der Spiegle published many of Wikileaks Iraq and Afghanistan War Logs and the leak of The Diplomatic Cables. Wikileaks has also published more leaks in reference to Guantanamo Bay, The Syria Files, and the Global Intelligence Files on its own website, mirrored websites, and through social media sites like Twitter.

However, Julian Assange has been treated like the enemy and not a member of the press. Members of Congress have denounced him as a high tech terrorist instead of journalist. Julian Assange currently has been granted by Ecuador political asylum, but is unable to leave the Ecuadorian Embassy in England. He fears extradition to Sweden may lead to rendition to Guantanamo Bay. Wikileaks is under a massive banking blockade in which Visa and MasterCard, Paypal, and Amazon stopped transactions to Wikileaks.

In, Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks, the Committee on the Judiciary of the House of Representatives had a hearing in December 2010. The Committee stated, “Nonetheless, the First Amendment does not compel government transparency. It leaves the government extraordinary autonomy to protect its own secrets. It does not accord anyone the right to have the government disclose information about its actions or policies, and it cedes to the government considerable authority to restrict the speech of its own employees.” Conversely, it does not, “leave the government free to suppress the free speech of others when it has failed itself to keep its own secrets.”

The committee showed that the Espionage Act was vague in its interpretation. “The current law, the Espionage Act particularly, is so vague and so broad because it deals with words that don’t have obvious meanings, such as information relating to the national defense, so that they can be applied immediately to a government employee who signs a confidentiality agreement, and then it could be applied to the foreign policy analyst who meets with that government employee and discusses what the government employee knew. And then it could be applied to a reporter who is overhearing the conversation between the government employee and the analyst and prints a story.”

The victims, noted in the FOI document, is “society”. However, if society is the victim, is the criminal those that express the First Amendment? In the age of the internet, what constitutes journalism? Blogs? Webpages? Tweets? A leak? Can you be considered a spy and not a journalist, if the US doesn’t like what you publish?

What I do know, is that the President cannot determine the enemy through war or through felonies of international law. Those duties are laid upon the Congress. As a veteran, I am conflicted as to what Wikileaks has leaked. Some of the leaks could potentially be harmful, and some secrets should be kept that. But, I regard our foreign policy as wrong and misguided. I do not want to be the policeman of the whole world. I have seen our intelligence community grow exponentially and the classification process misused. As Justice Potter Stewart said, “when everything is classified, nothing is classified. Rampant overclassification in the U.S. system means that thousands of soldiers, analysts and intelligence officers need access to huge volumes of purportedly classified material. And that necessary access in turn makes it impossible to effectively protect truly vital secrets.” Notwithstanding, I do believe that Julian Assange is journalist. And, I do believe in the first amendment as Madison did. “A popular government, without popular information, or the mean of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”

Kelli Sladick

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