In The New York Times this morning, Charlie Savage describes the latest thinking from the DOJ about how to criminally prosecute WikiLeaks and Julian Assange.  Federal investigators are "are looking for evidence of any collusion" between WikiLeaks and Bradley Manning -- "trying to find out whether Mr. Assange encouraged or even helped" the Army Private leak the documents -- and then "charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them."  To achieve this, it is particularly important to "persuade Private Manning to testify against Mr. Assange."  I want to make two points about this.

First, the Obama administration faces what it perceives a serious dilemma:  it is -- as Savage writes -- "under intense pressure to make an example of [Assange] as a deterrent to further mass leaking)," but nothing Assange or WikiLeaks has done actually violates the law.  Moreover, as these Columbia Journalism School professors explain in opposing prosecutions, it is impossible to invent theories to indict them without simultaneously criminalizing much of investigative journalism.  Thus, claiming that WikiLeaks does not merely receive and publish classify information, but rather actively seeks it and helps the leakers, is the DOJ's attempt to distinguish it from "traditional" journalism...

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