Charlie Savage reports that the Department of Justice is planning on charging Julian Assange with conspiracy, which is about the least terrible path for the government to take having made the bad decision to prosecute him in connection with his publication of said material at all.
Justice Department officials are trying to find out whether Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files from a government computer system. If he did so, they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them.
I say this is merely the "least terrible" because, unlike simply charging a person with publishing classified material in the public interest, conspiracy would theoretically require some sort of active collusion between the publisher and the leaker. If Assangem say, explained to Manning how to smuggle the files out, that might weigh in favor of a conspiracy charge.
But that line is less clear than it seems. The government could argue, after all, that Wikileaks, by advertising the fact that they publish secret information, was actively soliciting it and encouraging leakers to commit crimes. That may seem reasonable, but it's not, because reporters, on some level, make their interest in secret government information known simply by being reporters, or by being the type of reporter whose beat involves matters of national security. What counts as "conspiracy" under such circumstances? If a source offers a reporter information both know to be secret, has the reporter engaged in conspiracy by agreeing to receive it?
While at first glance, this seems less disastrous for the First Amendment and a free press than charging Assange under the Espionage Act, in actuality, the slippery slope is only the slightest bit less steep.
