It took no time at all for the Justice and State departments to issue condemnations of WikiLeaks for the release of 250,000-odd diplomatic cables. The first tranche of cables started rolling out on Sunday afternoon. The government's angry denunciations of the leaks started in the evening. And then came Rep. Peter King, R-N.Y., the incoming chairman of the House Committee on Homeland Security, calling for the government to go further: He wanted WikiLeaks to be designated a terrorist organization and hunted to the ends of the earth.
King knows how to get in front of a story. He scores media hits the way James Patterson sells beach reads. On Christmas Day last year, after Umar Farouk Abdulmutallab attempted to blow up a plane in Detroit and succeeded in burning his genitals, it was King who argued that the Department of Homeland Security had failed and that "we need to do whatever we can to protect the American people." On Sunday, he argued that "WikiLeaks appears to meet the legal criteria for Foreign Terrorist Organization designation." He pounded tables on MSNBC and Fox News. He got back-up from Sarah Palin.
Congressional staffers say they haven't been nudged on the idea of designating WikiLeaks a terrorist organization. But King could push it today with members returning for the last days of the lame-duck session. King has a way of defining the terms of debate. The idea of prosecuting WikiLeaks as a terrorist cell and Julian Assange as its leader has been around since Marc Thiessen floated it last summer.
And it's as bad an idea in November as it was in August. Designating a nonviolent group a "terrorist" organization is not something the government has ever tried to do. It's not something that would speed along the goal of King, Palin, and Thiessen: Assange in handcuffs or a WikiLeaks server unplugged.
Why not? Start with the way Palin defined the problem. In a Facebook post, she called Assange "an anti-American operative with blood on his hands" and asked why WikiLeaks couldn't "at least have had their financial assets frozen just as we do to individuals who provide material support for terrorist organizations."
That's great campaign talk. (Yes, sure, Palin hasn't decided yet whether to run in 2012.) But it doesn't really describe what WikiLeaks is doing or how the Feds see it. King, meanwhile, asked the State Department to look at going after WikiLeaks under the Immigration and Nationality Act, which has been broadly applied since 9/11 to nab suspected terrorists. As loose as it is, though, the act defines "material support"—that handy phrase Palin used—as "a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training."
Yes, leaks are technically "communications." But a document dump of outdated information, one that can be accessed by anyone, doesn't fit the bill. "A definition of material support which includes that would be so broad that it could include scholarly research and op-eds," says Emily Berman, a lawyer with the Liberty and National Security Project at NYU Law School. "If the State Department designated WikiLeaks as a terrorist organization, a law professor working on these issues would immediately be at risk of criminal prosecution."
On Monday, the State Department showed no signs of testing this. Spokesman P.J. Crowley told reporters that the department did not consider document leaks to be assistance to terrorists. The White House was a little murkier; Robert Gibbs told the press that the White House wouldn't "rule anything out" in dealing with WikiLeaks, and a White House spokesman responded to my question about the terrorist designation by pointing back to the Gibbs statement.
But what else could the White House do if it took King's advice? The president could employ the International Emergency Powers Act. The WikiLeaks mess would be designated a national emergency, and the Treasury Department would be directed to freeze any assets connected to WikiLeaks or Assange.
What's the problem with that? Well, there's the precedent—the people currently being targeted under the act are actually terrorists, not anti-war information activists—and there's the tiny problem that nothing King or Palin want to do would shut down WikiLeaks. WikiLeaks doesn't operate with American connections and American assets.
King was specific: He wants WikiLeaks classified as a terrorist organization. As Republicans come into power, they're going to explore what can be done. They can't do much. But let's be honest. The quest to find some way to define Assange's group as terrorists is not about fighting terrorism. It's about indulging the fantasy, well put by Cornell law professor William Jacobson, of Assange being hunted down like a Robert Ludlum villain and possibly "killed while resisting arrest."
And all of this assumes there's something talismanic about declaring someone a "terrorist." In reality, American agents could capture any boogeyman they wanted and prosecute him in the United States. The 1992 decision in U.S. v. Alvarez-Machain affirmed that the government was within its rights when a Mexican citizen was abducted and brought to the U.S. to be tried for the murder of a Drug Enforcement Administration agent. "We have kidnapped people to bring them to justice," explains David Cole, a law professor at Georgetown. "Whether it applies in this case, I don't know."
It probably doesn't. What's being lost in the James Bond scenarios about taking down WikiLeaks is that its current, highly embarrassing leaks don't actually threaten American intelligence assets. They create problems for diplomats, and by extension they embarrass the United States. They cause the State Department to lose face. That's not terrorism as we define it.
So how does King or anyone else turn Julian Assange into a terrorist? They either have to define terrorism in some real way that would eventually open up media organizations to terror charges of their own, or WikiLeaks actually has to do something materially to benefit terrorists. Neither scenario seems likely. What is likely: None of this gets past the shouting stage.
Video: Julian Assange