an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Charlie Savage reports that the U.S. government is trying to distinguish Wikileaks from traditional investigative journalists by arguing that Julian Assange conspired with Pfc. Bradley Manning to obtain secret government information from a government computer system.
The difficulty is that the conspiracy theory also threatens traditional journalists as well.
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.
Journalists should be very worried about the conspiracy theory that the Justice Department is considering. It puts them (and their jobs) in serious danger. Posted
by JB [link]