Jack Goldsmith on WikiLeaks and Julian Assange:
I do not understand why so much ire is directed at Assange and so little at the New York Times. What if there were no wikileaks and Manning had simply given the Lady Ga Ga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why? If not, why is our reaction so subdued when the Times receives and publishes the information from Bradley through Assange the intermediary? Finally, in 2005-2006, the Times disclosed information about important but fragile government surveillance programs. There is no way to know, but I would bet that these disclosures were more harmful to national security than the wikileaks disclosures. There was outcry over the Times’ surveillance disclosures, but nothing compared to the outcry over wikileaks. Why the difference? Because of quantity? Because Assange is not a U.S. citizen? Because he has a philosophy more menacing than “freedom of the press”? Because he is not a journalist? Because he has a bad motive?
I'm just going to keep reiterating what I said before: It doesn't matter what you personally think about Assange and WikiLeaks, if the government crosses the line from prosecuting the leaker to prosecuting the publisher we are approaching First Amendment Armageddon. What worries me is that I suspect that if the Bush administration were still in power, Democrats' defense of First Amendment principles, if not WikiLeaks itself, would be much stronger. If the left is less outraged over a potential prosecution under the Espionage Act because Assange is undermining the diplomatic efforts of a Democratic president, that is terribly shortsighted.
Chances are the U.S.' massive covert global war against terrorist groups will still be active the next time a Republican president takes office. Does anyone think, given everything that happened last time around, that setting a precedent where publishers who disclose classified information of obvious public interest can be prosecuted as spies is a good idea?
