As the U.S. builds its case against WikiLeaks founder Julian
Assange, federal prosecutors face a challenge: how do they explain why
Assange deserves prosecution and not The New York Times or The Guardian,
which also published classified government documents? Apparently,
they've found their answer. According to The New York Times, the Justice Department wants to charge Assange as a conspirator alongside military analyst Bradley Manning.
"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," The Times reports. Federal prosecutors will be looking at an online chat log between Manning and Assange to decipher if Assange actively "encouraged or even helped" Manning leak the documents.
But not everyone thinks this tactic would relieve federal prosecutors from having to answer such "awkward questions." Josh Gerstein at Politico argues that most investigative journalists actively pursue classified information--actions which can't easily be distinguished from what WikiLeaks did.
"Reporters seek classified information all the time in telephone conversations, in private meetings and other contexts," Gerstein writes. "The distinction the Times suggests prosecutors are seizing on posits that most reporters function as simply a 'dead drop,' which strikes me as patently ridiculous." Gerstein concedes that reporters may not provide "special training or instruction" to people breaking into government databases but merely encouraging them to do so is not illegal.
On that point, Wired's Kim Zetter disagrees. Getting into the specifics of a federal prosecution, Zetter says that under the Computer Fraud and Abuse Act (CFAA), "encouraging a source to obtain documents in a manner known to be illegal is not protected." Manning has already been charged under the CFAA and it's likely Assange would to, Zetter argues.
Looking at the big picture, Mistermix at Ballon Juice also doesn't see a big difference between traditional media organizations and WikiLeaks.
As far as I can tell, the encouragement Assange provided was on the level of source confirmation, something every journalist does when they receive leaked information. This kind of prosecution would set a pretty awful precedent for our press.