The Assange conundrum

The U.S. Department of Justice is tangled in knots - that's a good thing, and let's hope it stays that way.

Frustrated at the release of thousands of diplomatic cables on WikiLeaks, an impotent federal government desperately wants to punish Julian Assange and teach a scary lesson to all other would-be whistle blowers and leakers of sensitive information. The problems are the First Amendment and the fact that what Assange did, from all that's been reported, falls outside definitions of criminal behavior. Indeed, to criminalize Assange's actions would be to criminalize investigative journalism, which has a glorious tradition of convincing unhappy insiders to leak secret, sensitive and confidential information for publication.

The arguments that WikiLeaks has no editorial oversight or Assange has a non-journalistic agenda are interesting in the context of what makes good journalism, but have no bearing on the legality of what WikiLeaks did - the press doesn't have to be good to be free.

That said, it is undoubtedly true that professional journalists enjoy extra protection from prosecution because they can point to their editorial standards and oversight. Courts do not operate outside the realm of public pressure and politics. Indeed, prosecutors would be much more abusive of journalists if news institutions didn't have the resources to hire good lawyers to push back, or didn't have the leverage to convince legislators to pass shield laws, or a soap box to call out the abuse. But the WikiLeaks situation will demand the courts deal with fundamental questions about press freedom.

Glenn Greenwald at Salon has summarized what some media observers are saying about the potential for a government case against Assange, including the questionable treatment of Pfc. Bradley Manning, who is suspected of being the source of the cable leaks and others.