[Peace-discuss] "Getting to Assange through Manning, " by Glenn Greenwald

[C. G. Estabrook]

[What a bastard Obama is. Not only is he murdering and torturing people abroad 
at a great rate in pursuit of US business interests, he's torturing people at 
home and subverting the Constitution in order to prevent criticism and even 
knowledge of of what he's doing. As a jumped-up apparatchik of capital, his 
lawlessness equals if not exceeds that of Johnson and Nixon. Actions like that 
in DC today must escalate if we're to maintain our shreds of democracy. --CGE]

Topic: WikiLeaks
Thursday, Dec 16, 2010 09:17 ET
Glenn Greenwald
Getting to Assange through Manning

(updated below)

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 to be 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 classified information, but rather actively seeks it and helps the 
leakers, is the DOJ's attempt to distinguish it from "traditional" journalism. 
As Savage writes, this theory would mean "the government would not have to 
confront awkward questions about why it is not also prosecuting traditional news 
organizations or investigative journalists who also disclose information the 
government says should be kept secret — including The New York Times."

But this distinction is totally illusory. 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.

Second, Savage's story appears to shed substantial light on my story from 
yesterday about the repressive conditions under which Manning is being detained. 
The need to have Manning make incriminating statements against Assange -- to get 
him to claim that Assange actively, in advance, helped Manning access and leak 
these documents -- would be one obvious reason for subjecting Manning to such 
inhumane conditions: if you want to have better treatment, you must incriminate 
Assange. In The Huffington Post yesterday, Marcus Baram quoted Jeff Paterson, 
who runs Manning's legal defense fund, as saying that Manning has been extremely 
upset by the conditions of his detention but had not gone public about them in 
deference to his attorney's efforts to negotiate better treatment.

Whatever else is true, the DOJ seems intent on pressuring Manning to incriminate 
Assange. It would be bizarre indeed to make a deal with the leaking government 
employee in order to incriminate the non-government-employee who merely 
published the classified information. But that may very well at least partially 
explain (though obviously not remotely justify) why the Government is holding 
Manning under such repressive conditions: in order to "induce" him to say what 
they need him to say in order to indict WikiLeaks and Assange.

* * * * *

On MSNBC last night, Keith Olbermann did a segment on the conditions of 
Manning's incarceration, with FBI whistleblower Colleen Rowley. At least on its 
website, CBS News also reported on the story. And I was on Democracy Now this 
morning elaborating on my Manning article yesterday, as well as discussing 
Savage's article this morning and the imminent release of Assange from prison:

http://www.democracynow.org/2010/12/16/alleged_wikileaks_whistleblower_bradley_manning_imprisoned

UPDATE: Several others make similar points about the DOJ's prosecution theory, 
including Yale Law Professor Jack Balkin ("the conspiracy theory also threatens 
traditional journalists as well"); former Bush OLC Chief and Harvard Law 
Professor Jack Goldsmith ("it would not distinguish the Times and scores of 
other media outlets in the many cases in which reporters successfully solicit 
and arrange to receive classified information and documents directly from 
government officials" and "would be a fateful step for traditional press 
freedoms in the United States"); Politico's Josh Gerstein ("Reporters seek 
classified information all the time in telephone conversations, in private 
meetings and other contexts" and thus "the distinction . . . strikes me as 
patently ridiculous"); and The American Prospect's Adam Serwer ("the slippery 
slope is only the slightest bit less steep" than charging Assange under the 
Espionage Act).

Indeed, Bob Woodward's whole purpose in life at this point is to cajole, 
pressure and even manipulate government officials to disclose classified 
information to him for him to publish in his books, which he routinely does. 
Does that make him a criminal "conspirator"? Under the DOJ's theory, it would. 
All of this underscores one unavoidable fact: there is no way to prosecute 
Assange and WikiLeaks without criminalizing journalism because WikiLeaks is 
engaged in pure journalistic acts: uncovering and publicizing the secret conduct 
of the world's most powerful factions. It is that conduct -- and not any 
supposed crime -- which explains why the DOJ is so desperate to prosecute.

http://www.salon.com/news/wikileaks/index.html?story=/opinion/greenwald/2010/12/16/wikileaks