Senator Dianne Feinstein wants to prosecute Julian Assange under the Espionage Act:
The law Mr. Assange continues to violate is the Espionage Act of 1917. That law makes it a felony for an unauthorized person to possess or transmit "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."
The Espionage Act also makes it a felony to fail to return such materials to the U.S. government. Importantly, the courts have held that "information relating to the national defense" applies to both classified and unclassified material. Each violation is punishable by up to 10 years in prison.
If WikiLeaks is prosecuted under the Espionage Act as it currently exists, then no journalistic institution or entity is safe. The idea that anytime that a journalist obtains a document that has "information related to the national defense" that could be used "to the injury of the United States" they could be subject to prosecution would destroy national-security journalism as it currently exists. Also frightening is the reality that government officials looking to skew public debates one way or another regularly leak information to the press, so the government would really only be prosecuting people for publishing leaked information they didn't want leaked.
I think there's this idea that because the New York Times and the Washington Post are treasured journalistic institutions the government wouldn't dare engage in the kind of coercion it has leveled so effectively against Assange, and that even if he were prosecuted under an archaic unconstitutional law like the Espionage Act, he's a scary foreigner and there's no way that Americans would be treated the same way. But it really wasn't that long ago that Republicans like Bill Kristol and Rep. Peter King were talking about the NYT in the same kind of language they're using to describe Assange.
Sen. Joe Lieberman also called for Assange to be prosecuted, but he let slip that he thought other journalistic outlets could be held similarly "accountable," stating, "To me the New York Times has committed at least an act of, at best, bad citizenship, but whether they have committed a crime is a matter of discussion for the Justice Department." Lieberman recently introduced the SHIELD Act along with Sen. Scott Brown, which would amend the Espionage Act to make it easier to prosecute Assange.
The SHIELD Act, which Dave Weigel has helpfully placed on Scribd, would amend the Espionage Act so that it includes classified information "concerning the human intelligence activities of the United States or any foreign government" and "concerning the identity of a classified source or informant of an element of the intelligence community of the United States," to the kinds of information that if "published" or used in "any manner prejudicial to the safety or interest of the United States," could lead to prosecution. Stories like the government's program tracking terrorist finances and the existence of the CIA black sites would certainly fall under the first provision.
The original Espionage Act is bad enough, but the point is that any time you're prosecuting the publisher instead of the leaker, then journalists are in trouble. Many of the people who are using Assange to stage a "sympathetic" case for prosecuting publishers rather than leakers ultimately have "legitimate journalists," not just rogues like Assange, in mind, and it doesn't take a genius to figure that out.
