Paul Hackett/Reuters
WikiLeaks founder Julian Assange speaks to the media outside Beccles police station in Suffolk, England, Dec. 19. Vice President Joe Biden on Sunday called Assange a 'high-tech terrorist.'

WikiLeaks chief Julian Assange: 'Terrorist' or journalist?

Vice President Joe Biden called WikiLeaks founder Julian Assange a ‘high-tech terrorist.’ His remarks Sunday could hint at a possible Justice Department strategy for a WikiLeaks prosecution.

Vice President Joe Biden on Sunday called WikiLeaks founder Julian Assange a “high-tech terrorist.” What is Mr. Biden’s reasoning here? After all, that’s pretty tough language to use about someone who doesn’t carry a bomb.

First of all, according to Biden, Mr. Assange has leaked secret documents that put at risk the lives or jobs of people around the world. Previous WikiLeaks publications have included the names of Afghans who worked with the United States, for instance, exposing them to possible retaliation, other officials have pointed out.

Second, Assange has “made it more difficult for us to conduct our business with our allies and our friends,” Biden said on NBC’s “Meet the Press.”

Biden said he’s had personal experience with this. World leaders now want to meet him alone, without accompanying staff members, he said.

“It makes things more cumbersome. And so [the leaks] ... have done damage,” Biden said.

Well, if that first point is proved, it is pretty bad. Putting someone needlessly in danger through callous action is the definition of something unpleasant, and it is perhaps illegal. But does it make you a terrorist?

As for the second point, it seems pretty certain that Al Qaeda does not have a secret plan to force the US vice president to hold smaller meetings. Defense Secretary Robert Gates has commented that however bad the leaks look now, in the long run they’ll have only a minimal effect on the conduct of US diplomacy.

If you look past the tough talk, however, Biden said something about the US pursuit of Assange that could hint at a possible Justice Department strategy for a WikiLeaks prosecution.

Biden implied that Assange would be a criminal if he “conspired to get these classified documents with a member of the US military.”

Aiding and abetting the leaking of material, in other words, is worse than just printing secrets that someone leaves on your desk in the dead of night. At least, that’s the picture according to Biden.

This could be confirmation of reports that the Justice Department is looking at charging Assange as a conspirator with Army Pfc. Bradley Manning, the alleged leaker of large amounts of sensitive and classified data. That could be a legally simpler task than charging Assange under the Espionage Act with damaging US security by publishing the documents. It could also save the Justice Department from having to explain why it was pursuing WikiLeaks for making secrets public, but not The New York Times, which has published a series of stories based on the WikiLeaks material.

At least, that may be the government’s approach. But some legal experts suggest that even charging Assange as a conspirator to obtain government secrets – something that’s pretty clearly illegal under current statutes – could be a bad thing for US journalists.

After all, what’s the line at which encouragement becomes conspiracy? Plenty of journalists cajole their sources to provide information, which may, or may not, be classified. Would buying lunch for a White House official who then drops a secret tidbit in a reporter’s ear count as conspiracy? If that becomes the case, then Bob Woodward better lawyer up. Is Assange, practically speaking, as much a journalist as “Meet the Press” host David Gregory?

“Prosecution of Assange on this theory would therefore raise awkward questions about why DOJ does not bring charges against the American media for soliciting classified information on a regular basis. It would be a fateful step for traditional press freedoms in the United States,” writes Jack Goldsmith, Harvard law professor and former assistant attorney general, in a recent post on the Lawfare legal blog.

Some legal experts say WikiLeaks can be distinguished from traditional media outlets, however. The key might be newsworthiness. WikiLeaks is in the business of indiscriminately publishing secrets, in this view. It maintains encrypted Internet drop boxes designed to encourage leaking. Traditional news outlets, on the other hand, scour their material for things they consider to be, well, worth printing because of public-interest concerns.

“By clearly showing how WikiLeaks is fundamentally different, the government should be able to demonstrate that any prosecution here is the exception and is not the sign of a more aggressive prosecution effort against the press,” said national-security law expert Kenneth Wainstein at a House Judiciary hearing last week on the legal issues raised by WikiLeaks.

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