Re: U.S. Tries to Build Case Against WikiLeaks Founder

On Thu, Dec 16, 2010 at 10:35 AM, Bruce Geerdes <[email protected]>
wrote:
> http://www.nytimes.com/2010/12/16/world/16wiki.html
> U.S. Tries to Build Case for Conspiracy by WikiLeaks
> By CHARLIE SAVAGE
...
> By bringing a case against Mr. Assange as a conspirator to Private
> Manning’s leak, the government would not have to confront awkward
> questions about why it is not also prosecuting traditional news
> organizations or investigative journalists who also disclose
> information the government says should be kept secret — including The
> New York Times, which also published some documents originally
> obtained by WikiLeaks.

Glenn Greenwald responds, so I don't have to:
http://www.salon.com/news/opinion/glenn_greenwald/2010/12/16/wikileaks
...
> But this distinction is totally illusory.  Very rarely do
> investigative journalists merely act as passive recipients of
> classified information; secret government programs aren't typically
> reported because leaks just suddenly show up one day in the email box
> of a passive reporter.  Journalists virtually always take affirmative
> steps to encourage its dissemination.  They try to cajole leakers to
> turn over documents to verify their claims and consent to their
> publication.  They call other sources to obtain confirmation and
> elaboration in the form of further leaks and documents.  Jim Risen and
> Eric Lichtblau described[0] how they granted anonymity to "nearly a
> dozen current and former official" to induce them to reveal
> information about Bush's NSA eavesdropping program.  Dana Priest
> contacted[1] numerous "U.S. and foreign officials" to reveal the
> details of the CIA's "black site" program.  Both stories won Pulitzer
> Prizes and entailed numerous, active steps to cajole sources to reveal
> classified information for publication.
>
> In sum, investigative journalists routinely -- really, by definition
> -- do exactly that which the DOJ's new theory would seek to prove
> WikiLeaks did.  To indict someone as a criminal "conspirator" in a
> leak on the ground that they took steps to encourage the disclosures
> would be to criminalize investigative journalism every bit as much as
> charging Assange with "espionage" for publishing classified
> information.
...
> Several others make similar points about the DOJ's prosecution theory,
> including Yale Law Professor Jack Balkin[2] ("the conspiracy theory
> also threatens traditional journalists as well"); former Bush OLC
> Chief and Harvard Law Professor Jack Goldsmith[3] ("it would not
> distinguish the Times and scores of other media outlets in the many
> cases in which reporters successfully solicit and arrange to receive
> classified information and documents directly from government
> officials" and "would be a fateful step for traditional press freedoms
> in the United States"); Politico's Josh Gerstein[4] ("Reporters seek
> classified information all the time in telephone conversations, in
> private meetings and other contexts" and thus "the distinction . . .
> strikes me as patently ridiculous"); and The American Prospect's Adam
> Serwer[5] ("the slippery slope is only the slightest bit less steep"
> than charging Assange under the Espionage Act).
>
> Indeed, Bob Woodward's whole purpose in life at this point is to
> cajole, pressure and even manipulate government officials to disclose
> classified information to him for him to publish in his books, which
> he routinely does.  Does that make him a criminal "conspirator"?
> Under the DOJ's theory, it would.  All of this underscores one
> unavoidable fact:  there is no way to prosecute Assange and WikiLeaks
> without criminalizing journalism because WikiLeaks is engaged in pure
> journalistic acts:  uncovering and publicizing the secret conduct of
> the world's most powerful factions.  It is that conduct -- and not any
> supposed crime -- which explains why the DOJ is so desperate to
> prosecute.

[0] http://www.nytimes.com/2005/12/16/politics/16program.html
[1] http://goo.gl/oaWs9 =>
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644.html
[2]http://balkin.blogspot.com/2010/12/wikileaks-and-mayflower-hotel.html
[3] http://goo.gl/UqXP0 =>
http://www.lawfareblog.com/2010/12/the-implications-of-charging-assange-for-conspiracy-to-leak/
[4] http://goo.gl/Oy6bD =>
http://www.politico.com/blogs/joshgerstein/1210/Conspiracy_charge_wouldnt_end_problems_with_Wikileaks_prosecution.html?showall
[5] http://goo.gl/wlMHg =>
http://www.prospect.org/csnc/blogs/adam_serwer_archive?month=12&year=2010&base_name=charging_assange#123004

-- 
Nick

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