The New York Times has reported that the Department of Justice is investigating the possibility that Julian Assange could be charged as a conspirator in the leaking of classified documents. The aim would be to draw a distinction between Assange’s actions and those of journalists. But as Glenn Greenwald points out, investigation journalism involves all sorts of actions which would fall foul of the same theory of conspiracy.
Very rarely do investigative journalists merely act as passive recipients of classified information; secret government programs aren’t typically reported because leaks just suddenly show up one day in the email box of a passive reporter. Journalists virtually always take affirmative steps to encourage its dissemination. They try to cajole leakers to turn over documents to verify their claims and consent to their publication. They call other sources to obtain confirmation and elaboration in the form of further leaks and documents. Jim Risen and Eric Lichtblau described how they granted anonymity to “nearly a dozen current and former official” to induce them to reveal information about Bush’s NSA eavesdropping program. Dana Priest contacted numerous “U.S. and foreign officials” to reveal the details of the CIA’s “black site” program. Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole sources to reveal classified information for publication.
In sum, investigative journalists routinely — really, by definition — do exactly that which the DOJ’s new theory would seek to prove WikiLeaks did. To indict someone as a criminal “conspirator” in a leak on the ground that they took steps to encourage the disclosures would be to criminalize investigative journalism every bit as much as charging Assange with “espionage” for publishing classified information.