Jack Goldsmith writes:

I have written a lot on how hard it is to distinguish WikiLeaks from the New York Times when it comes to procuring and publishing classified information. One implication of the comparison is that any successful prosecution of WikiLeaks founder Julian Assange would have adverse implications for mainstream U.S. news publications efforts to solicit, receive and publish classified information. The May 23 indictment of Assange makes clear that these concerns are real. As Susan Hennessey said, “[I]t will be very difficult to craft an Espionage Act case against him that won’t adversely impact true journalists.” I don’t think this is an accident. I think the government’s indictment has the U.S. news media squarely in its sights.

The first sentence of the indictment reads:

To obtain information to release on the WikiLeaks website, ASSANGE encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.

This is exactly what national security reporters and their news publications often ask government officials or contractors to do. Anytime a reporter asks to receive information knowing it is classified, that person encourages sources to circumvent legal safeguards on information. The news organizations’ encouragement is underscored by the mechanisms they provide for sources to convey information securely and anonymously. [Continue reading…]