The Justice Department seems to be mulling that question, according to this WAPO story.
And this AP write up explores a bit more, concentrating on the question of whether or not Brave Sir Julian's outfit can be properly described as a journalistic organization.
Nations arrest try and convict spies from sovereign states, as the U.S. has obviously done in the past, so it would hardly be a surprising development if Holder and company did the same with Assange, but a bit different because he is an agent of no state. He is a bit like an AQ agent in that regard. He is a non-state actor.
The question is, which covering law would be best suited to the purpose trying and convicting Asschapeau while surviving the test of the inevitable judicial proceedings, producing a conviction. Is the 1917 act the best one for that purpose, given the subsequent history of Supreme Court decisions? I would suggest Gabe Schoenfeld's "Necessary Secrets" as a good primer on the difficulties. It might be easier to base a case on the fact that he is either engaging in theft or knowingly in receipt of stolen of government property.
Be that as it may, there is much consternation in the two pieces linked above, I think, because there are some fundamental confusions within and between at least three categories of entity, i.e.,
1. confusions regarding the applicability of constitutional protections covering U.S. citizens, as contrasted with said protections as applicable (and IF applicable) to non-citizens,
and;
2. a confusion regarding constitutional protections applicable to U.S. Media outlets as contrasted with those (if any) provided to foreign press entities,
and lastly;
3. a confusion between the moral status or morally justified protections granted traditional journalists and journalistic outlets, and the moral status and consequent protections deserved by entities such as Wikileaks.
In regard to #1 and #2: Suppose Brave Sir Julian attempts a 1st Amendment defense of his actions. Why not argue that the Constitution, while reflective of what we believe are the natural rights of all humans, does not extend the U.S. government's protection of those rights to persons who are not U.S. citizens. Being a legal citizen of Australia, The Pallid Knight must depend for that protection, on that entity, should it decide to undertake that defense. [Don't count on it there Bud.]
Additionally: all previous attempts to use the Espionage Act were in efforts to prosecute U.S. citizens who provided the U.S. press with classified information, indicating that the law was intended to deter U.S. citizens, and apply only to same. Given that is the case, all of the difficulties introduced by subsequent Supreme Court opinions exist because in those cases the value of a free American press for purposes of maintaining an informed American public was given great weight. Because each case involved a U.S. journalistic entity, cautions were taken. This would argue toward either revising the Espionage act to take into account foreigners, or reliance for legal action on other laws not so tightly bound by domestic and constitutional restrictions.
In this case, while the N.Y Slimes did receive the stolen information, it received it from an organization that is outside the U.S., at the head of which is Brave Sir Julian, not a citizen. So, in the interests of preserving the domestically vital role of U.S. press, a revised act might be cited, only in reference to WkLks, with the auxiliary argument that WkLks, not being a U.S. entity, is not entitled to the constitutional protections that the Slimes is entitled to. [Indeed a case can be made that the Slimes did knowingly receive government property, classified information, which it published, and is therefore in violation of the act, but, as the Pentagon papers case showed, the prospects of such a prosecution succeeding are not good.]
In regard to #3: Wikileaks seems to think it is a journalistic outfit because it provides information, allowing for well informed citizens of the world. However, there are some obvious disanalogies. Wikileaks indulges in highly misleading or perhaps leading packaging of its information. It enables illegal activity. It does little to provide context, and does not make but the weakest of efforts to approach the states whose documents it dumps, in an effort to mitigate collateral damages. Because it makes no real efforts in this regard, it has recklessly endangered innocent lives with its two military related docu-dumps.
Now, I am prone to think U.S. media has shown less than adequate regard for these sorts of things, BUT they at least do make the effort, and DO sometimes hold off on publishing when requested, subsequent to hearing out governmental entities that have concerns about their operations and possible impact on national security. Wikileaks, to say it again, makes no such pretenses, and only started its half-hearted efforts at editing document after it had released the Afghan documents, and had been called on the carpet for providing the barbarian with a virtual hit list. In short, they were and are inexcusably and dangerously amateurish.
What I am arguing here, from the moral perspective, is that there is an obligation, on the part of states to reciprocate respect for roles vis-a-vis ostensibly responsible press entities. Because more traditional media outlets do show a level of respect for governmental entities, and do sometimes acquiesce in their expertise and requests for delay of publication they are deserving of some consideration. The government, in turn has a moral obligation to reciprocate a similar level of respect for the role of the press, as a supply of information for a healthy democracy, in essence cutting some slack. Something like this line of thought is probably an aspect of the curious lack of stomach the U.S. government has had with regard to prosecuting domestic leakers.
However, where that respect is not reciprocated, there is no moral case to be made that the U.S. government needs to treat the (alleged) press entity with the same respect it accords entities such as the Slimes.
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