The U.S. government indicated today that WikiLeaks spokesman Julian Assange could be in legal jeopardy for disclosing classified information because he is "not a journalist."
When asked whether "traditional media" organizations that republish secret documents could be prosecuted, State Department spokesman P.J. Crowley said that the administration applauds "the role of journalists in your daily pursuits."
"In our view, Mr. Assange is not a journalist," Crowley added.
Crowley's remarks come as Justice Department prosecutors and FBI agents are scrambling to piece together a legal case against Assange, who was arrested yesterday in London on unrelated sexual assault charges filed in Sweden. The federal government could then seek his extradition to the United States, which the U.K. Independent reported today has already been the topic of discussions between U.S. and Swedish officials.
"We have pledged that we will investigate this aggressively and we will pursue anyone that we feel has violated U.S. law," Crowley said today. "So I can't predict where that investigation will lead at this point." Attorney General Eric Holder recently said that the legal investigation into WikiLeaks, which became public in July, is ongoing.
A collection of hawkish U.S. politicians has been vocal in demanding that the Obama administration charge Assange under the Espionage Act. Last week, Rep. Peter King, the incoming Republican chairman of the House Homeland Security Committee, urged the administration to "criminally charge WikiLeaks activist Julian Assange" for conspiracy to disclose classified information. So did Sens. Dianne Feinstein (D-Calif.) and Kit Bond (R-Miss.).
The catch, however, is that the Espionage Act draws no distinction between traditional journalism and WikiLeaks-style informational activism. It merely makes it illegal to disclose "information relating to the national defense" as long as that information could be used "to the injury of the United States."
That means reporters and editors at The New York Times, which has published a subset of the cables, could in theory face criminal charges too. (So could anyone operating one of the 1,289 mirror sites that currently exist.)
But because of the First Amendment's guarantee of a free press, no president, Republican or Democrat, has ever chosen to wield the Espionage Act against media organizations. It's hardly clear that the U.S. Supreme Court would allow such a prosecution to continue today.
Which is why the Obama administration has been trying to draw a sharp distinction between WikiLeaks and traditional journalists -- who would be unlikely to post thousands of raw cables to the Internet and more likely to bow to pressure not to publish. The New York Times delayed its expose of Bush administration's warrantless wiretapping for over a year, for instance.
"I would not draw any comparison between WikiLeaks and The New York Times," Pentagon spokesman Geoff Morrell said last week on MSNBC. "The New York Times has not posted for all the world, including our enemies, to mine, a database of un-redacted raw documents, classified information that they solicited to be stolen. That's just not the same."
Joseph Lieberman of Connecticut, the head of the Senate Homeland Security Committee, would remove the media's First Amendment shield completely. In an interview yesterday on Fox News, he suggested that news organizations should be prosecuted as well:
To me New York Times has committed at least an act of bad citizenship. And whether they've committed a crime, I think that bears very intensive inquiry by the Justice Department. And, again, why do you prosecute crimes? Because if you don't, well, first you do because that's what our system of justice requires. Second, if you don't prosecute people who commit crimes, others are going to do it soon and again. And I'm afraid that's what's going to happen here.
Another approach the Justice Department could take, which might be more likely to pass First Amendment muster: arguing that Assange, and anyone else deeply involved with WikiLeaks, is guilty of conspiracy by soliciting classified materials. That's something that journalists tend to shy away from doing.
The Pentagon previewed this argument a few months ago when arguing that "WikiLeaks's webpage constitutes a brazen solicitation to U.S. government officials, including our military, to break the law."
For his part, Assange calls himself an "editor" and said before his arrest that political pressure to cut off WikiLeaks' funds and Web hosting "are dangerous moves towards a digital McCarthyism. These actions, and the others like it, are not the result of a legal process, but rather, are a result of fear of falling out of favor with Washington."
Since WikiLeaks began releasing confidential U.S. State Department cables last month, at a pace that seems guaranteed to maximize the embarrassments for Washington, an increasing number of service providers have distanced themselves. The list includes Amazon.com, PayPal, Visa, EveryDNS, and, as CNET was the first to report yesterday, MasterCard.
Iceland-based DataCell, which handled some payments for WikiLeaks, has threatened legal action after Visa and MasterCard pulled the plug. DataCell said in a post that: "Visa and Mastercard payments are being rejected on our donation system. We have received a suspension notice stating that Visa Europe has ordered our payment processor to suspend payments."
Twitter has suspended the anon_operation account, which had more than 20,000 followers and was coordinating the DDoS attacks against Mastercard.com and Visa.com.
Sarah Palin's credit card account has been reportedly disrupted. Palin has been a critic of WikiLeaks.
A Pew Research poll asked whether "the release of classified documents about U.S. diplomatic relations by WikiLeaks" helps or harms the public interest. The results: 60 percent of those paying attention to the story say it was harmful.
The Facebook page for "Operation Payback," which coordinated some of the DDoS attacks, has disappeared. Here's the version from Google's cache.
The Berkeley City Council is considering a resolution calling Bradley Manning, the Army private accused of being WikiLeaks' source for the diplomatic cables, a hero who should be freed.
A WikiLeaks-leaked State Department cable says, according to a U.K. Guardian article today, that Shell claimed it inserted staff into all the main ministries of the Nigerian government.
Paypal's general counsel said in a blog post that it was releasing money from WikiLeaks' account but would not accept new donations. "In 2008 and 2009, PayPal reviewed and restricted the account associated with WikiLeaks for reasons unrelated to our Acceptable Use Policy," the post said. "The account was again reviewed last week after the U.S. Department of State publicized a letter to WikiLeaks on November 27, stating that WikiLeaks may be in possession of documents that were provided in violation of U.S. law. PayPal was not contacted by any government organization in the U.S. or abroad. We restricted the account based on our Acceptable Use Policy review." (The blog seems offline at the moment.)
Time.com reports that the U.S. military's Central Command is responsible for the security hole that led to Manning's alleged copying: "Central Command allowed the downloading of data from its secret in-house network, SIPRNet, to removable storage devices... The information was then carried to computers linked to secret networks used by allies and uploaded. The process was derisively called 'sneaker net,' because it was so inefficient, although it replaced the prior need to manually retype all information into the allied computers."
Last updated at 6:10 p.m. PT