If Julian Assange Should Be Prosecuted for Espionage, Why Not The New York Times?

By calling for the prosecution of Wikileaks impresario Julian Assange, Glenn Greenwald notes, Sen. Dianne Feinstein (D-Calif.) implicitly endorses the prosecution of the New York Times reporters and editors who published material from the classified Pentagon and State Department documents obtained by Assange's organization. The Espionage Act of 1917—which makes it a crime, punishable by up to 10 years in prison, to "receive," "deliver," "transmit," or "communicate" any "information relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation"—does not distinguish between employees of news organizations and everyone else. As I noted in a 2011 column, neither does the First Amendment, which protects "the freedom of the press," meaning everyone's freedom to use technologies of mass communication, not merely the freedom of professional journalists. So whether or not you agree with Assange's self-identification as a journalist, the same legal argument that makes it possible to charge him with violating the Espionage Act also makes it possible to charge Bill Keller, who was executive editor of the Times when it ran stories based on the Wikileaks documents, or David Sanger, who worked on those stories as the paper's chief Washington correspondent. Prosecuting Assange also raises the same constitutional issues as prosecuting Keller, Sanger, or any of the many other journalists who routinely use classified information in their reporting.

"I believe Mr Assange has knowingly obtained and disseminated classified information which could cause injury to the United States," Feinstein, who chairs the Senate Select Committee on Intelligence, told The Sydney Morning Herald. "He has caused serious harm to US national security, and he should be prosecuted accordingly." Greenwald, who calls Feinstein "the supreme Senate defender of state secrecy and the Surveillance State," observes:

There is no sense in which Feinstein's denunciation applies to WikiLeaks but not to The New York Times (and, for that matter, senior Obama [administration] officials). Indeed, unlike WikiLeaks, which has never done so, The New York Times has repeatedly published Top Secret information. That's why the prosecution that Feinstein demands for WikiLeaks would be the gravest threat to press freedom and basic transparency in decades. 

Note that you can be convicted under the Espionage Act even if you never intended to harm national security and even if you did not in fact do so. The prosecution need only argue that you had "reason to believe" the defense-related information you received or communicated "could be used" to hurt the U.S. or help another country—a definition that arguably covers a wide range of valuable reporting on subjects such as warrantless wiretaps, rendition and torture of suspected terrorists, and President Obama's program of summary executions via drone aircraft.