To the First Amendment.
The New York Times reported yesterday that the Justice Department was working overtime to figure out a way to charge Julian Assange, probably for “conspiracy” to commit espionage. As Jack Balkin – writing at Balkinization; imagine that – observes, the success of such a move would imperil all journalists doing investigative work and relying on sources:
Journalists are not merely passive recipients of information they receive from their sources. It make take weeks of negotiations (and rounds of drinks at the Mayflower Hotel) to get a source to agree to provide sensitive information, and work out the details of the disclosure. Agreements not to reveal a source who provides sensitive information are just that, agreements. If prosecutors wanted to, they would argue that such agreements were part of a conspiracy to leak classified information under the Espionage Act or related statutes.
The Justice Department might try to distinguish the two cases by seeking to prove that Assange had offered to provide technical assistance to Manning to gain access to the computer system, or provided Manning with software or programming skills. The problem is that this distinction isn't much of a difference. Traditional investigative journalists may assist their sources in other ways besides giving them hacking software. They may, for example, make it easier for them to transmit sensitive information or help them store or transmit the information. They may smooth things over for their sources or encourage them to disclose in countless ways.
As I explained to Savage in a previous interview, Assange is no fool. He understands that the best way to escape prosecution is present himself as a journalist and to point out in every way possible that what he does is like what other investigative journalists do. Indeed, Wikileaks is only disclosing a very small percentage of the files it possesses, and it is working with mainstream journalistic organizations in deciding which files to release.
In a bid to be self-referential once more, here’s a bit of an earlier post of mine about Joe Lieberman stating that maybe the NYT should be “investigated,” too:
The sad thing is, there probably is a debate raging at the Justice Department about how to charge Assange, and maybe the Times, mostly because there no basis to do it. But that doesn’t mean it won’t happen, at least regarding Julian Assange. It would be nice, actually, if both were charged, because the Times would put up a helluva good joint defense.
As discussed in my earlier linked post, the NYT and Assange, and WikiLeaks, too, are in exactly the same position: they did not leak the information and did not violate the Espionage Act: they published the information, that’s all. But it’s obviously easier to beat up on Julian Assange, so you should look for that to happen.
You should also look, in the end, for the Justice Department to leave the Times alone. Eric Holder does not want to have his ass handed to him on a platter, and in a very public way.
It would be shocking and disgraceful if Eric Holder did something that John Mitchell and the rest of President Nixon’s men didn’t do.