Pfc. Bradley Manning is charged with espionage. Why not Julian Assange?
It looks as if Pfc. Bradley Manning and Julian Assange will go down in history as outliers, not trend setters. There have been no copycat leaks of massive quantities of diplomatic and intelligence documents, despite how easy the Internet makes it to leak and the fact that more than four million Americans have clearance to access government secrets.
Pfc. Manning admitted in court to sending some 700,000 government documents to WikiLeaks in 2010. He is scheduled to go on trial in June. Among the charges: that he did, "without proper authority, knowingly give intelligence to the enemy, through indirect means."
Among the prosecution's more than 100 witnesses will be a Navy SEAL who participated in the raid in Pakistan that killed Osama bin Laden. He'll testify to finding Manning-Assange documents on the terrorist leader's computer. Prosecutors are seeking a sentence of life in prison without the possibility of parole.
The key element of this espionage charge is intent: Did Pfc. Manning mean to give intelligence to the enemy? In his 35-page plea, Pfc. Manning describes himself as a whistleblower, but he doesn't explain what he was blowing the whistle on. The documents didn't disclose government wrongdoing. Instead, WikiLeaks posted unedited diplomatic and intelligence cables that identified by name Iraqis, Afghans and others who were helping the U.S. war effort. People were outed as homosexuals in countries where that makes them a target for deadly violence. Prosecutors will identify a long list of victims.
Building a case that Pfc. Manning knowingly gave intelligence to the enemy seems open and shut. The more interesting question is how this requirement of intent applies to Mr. Assange.
There is confusion about the relationship between the First Amendment and the espionage laws. At Pfc. Manning's hearing, the judge asked prosecutors if they would have brought charges if he had given the documents directly to the New York Times, instead of through WikiLeaks. Prosecutors said they would.
That led some liberals to argue that prosecutors are threatening press freedom. An expert witness for the defense, Yochai Benkler of Harvard Law School, wrote in The New Republic that bringing a case against Pfc. Manning is a slippery slope. He claimed that in the past, "no one has been charged with aiding the enemy simply for leaking information to the press for general publication."
That's not true. In 1984, government analyst Samuel Loring Morison was charged under the Espionage Act for leaking information to the press. He sent classified satellite photographs of a then-new Soviet nuclear-powered aircraft carrier to Jane's Defence Weekly, a British magazine. He was convicted even though his intent was to harm, not help, the enemy. "If the American people knew what the Soviets were doing, they would increase the defense budget," he said.
President Obama has used the Espionage Act often, invoking it six times to bring cases against government officials for providing classified information to the media—twice the number of such cases brought by other presidents since the law was passed in 1917. So it's at least curious that Mr. Assange hasn't been charged.
Bill Keller, a former executive editor of the New York Times, recently wrote: "As a matter of law I believe WikiLeaks and the New York Times are equally protected by the First Amendment." That misses the point. Unlike WikiLeaks, the mission of newspapers is to inform the public. Mr. Assange's stated mission is to undermine the U.S. That ought to make it much easier to prove that he intends to help the enemy.
As a self-declared anarchist, Mr. Assange has long said his aim is to use leaks to weaken the U.S. By disclosing confidential communications, he hopes to inhibit future such communications.
"An authoritarian conspiracy that cannot think efficiently," he wrote in 2006, "cannot act to preserve itself." His former top deputy, Daniel Domscheit-Berg, wrote in his book, "Inside WikiLeaks," that Mr. Assange viewed the U.S. as the "only enemy." Mr. Assange is in self-imposed exile in the Ecuadorean Embassy in London and hosts a show on Russia Today, the television network controlled by Vladimir Putin.
One reason federal prosecutors rarely charge news publishers under the espionage laws is that prosecutors understand that news organizations are different from spies. No one expects charges against the New York Times or any other news outlet that used the WikiLeaks documents.
But news executives and media lawyers should think twice before treating Mr. Assange as if he were a journalist. If leaders in the news industry blur the distinction between their journalists and self-proclaimed enemies of the state like Mr. Assange, they may encourage prosecutors to make the same false equivalence.