The major difference is that journalists do not ask their sources to break the law to obtain information. Assange did, and that makes all the difference.
The legal theory being advanced here would basically outlaw investigative journalism into the activities of the US government, even by foreign journalists.
That's not true but I don't have time to run through an exhaustive legal explanation of why. In a nutshell: the source is responsible for maintaining security of information, because third parties like journalists don't know the bounds of what is covered by confidentiality.
Moreover, asking for information is not the same thing as soliciting information. Asking is fine, soliciting is not (in this context, soliciting means offering them something of value in exchange for the information).
> Asking is fine, soliciting is not (in this context, soliciting means offering them something of value in exchange for the information).
Assange didn't purchase the information.
The theories you're supporting would make reporting on US government secrets illegal. You should stop and think about how fundamentally this would undermine the freedom of the press and the ability of the public to know about what their government does in secret.
Black-and-white/yes-or-no/kindergarten level of analysis? Sure, that's correct.
In the real world? It's not correct at all. For starters, it's perfectly legal to ask for classified information, because it's well understood that a source generally will not provide any classified information (because the source would face criminal sanction if they do). However, if the source is willing to reveal said information, and the journalist did not solicit it, then the journalist is free to publish it because journalists are not covered by classified information laws (in the US).
If, however, the journalist solicits the information (by offering something of value, not necessarily monetary), or by assisting in the acquisition of the information, then they have violated various US laws, because they've crossed the line.
Assange is alleged to have performed acts that could be construed as attempts to access classified information, beyond merely asking for it--specifically, it is alleged that he assisted Manning with attempting to acquire and decrypt classified documents. That is the heart of the issue--if Assange had merely accepted a document dump from Manning (as he generally did with most other sources), he wouldn't be facing 18 charges today.
However, Assange is also not protected by free press rulings. Because he's not a journalist. He's just a parrot. A parrot merely passes on what's given to them. A journalist verifies their sources, the information they've received, and exercises some sort of analysis and judgment in deciding what to publish. Assange literally did none of those things until it came time to interfere in the Trump-Clinton election, when he chose to bury the Trump documents he received and time the release of Clinton-related documents, most of which are now known to have been partial or whole-scale forgeries by the Russian intelligence agencies.
As a reference point, season 3 of the tv show “The Newsroom” has a plot that centers around a new reporter who aids their source in collecting confidential documents from the US government, and every reporter in the newsroom immediately understands they’ve ‘solicited’ information and thus violated the espionage act. I sincerely doubt that this is a concept that a tv show writer can understand and effectively explain, yet would be opaque to a reporter.
As a minor note though, Wikileaks absolutely buried trump related documents and carefully timed the release of Clinton related dumps, which makes sense as Wikileaks had been reduced to a front for Russian intelligence by that time. But the emails they released were themselves authentic, and their veracity can be independently verified by the DKIM system they had enabled. Funnily enough, for all the sound and fury over the Clinton emails, the worst thing that they show is that Clinton received a debate in advance, just like Donald Trump did.
If you’re still confused, here’s a short clip from the aforementioned show discussing that it’s wrong with soliciting sources to steal: https://youtu.be/VSPhYdxSTRI
Maybe you're impressed when the Trump administration's DOJ comes up with a novel legal theory to prosecute a journalist for "solicitation." I'm going to rely on Hugo Black's opinion of this sort of attempt to intimidate journalists and crack down on national security reporting - that it is a fundamental threat to democracy and contravenes the First Amendment. You can trust Trump's cronies over at the DOJ if you'd like.
Guess what, your wrong and here's why: all gov't info is bound by confidentiality unless it's on a press release page.
See https://www.theatlantic.com/politics/archive/2014/05/why-the... which explains the SCOTUS case that describes why journalists can publish classified information.
This indictment does not criminalize journalism and does not run directly contrary to the 1st Amendent. Period. Full stop.
There is a SCOTUS case on why journalists can publish classified information without fear of reprisal. That same case is why Assange is SOL.
By analogy, an employee at a bank isn't a criminal for spinning the dial on the vault. They are a bank employee, they have permission to work on-site with the bank's money, be in the vault, and operate their teller station which has the vault's money. it may be against the bank's regulation to open the vault without authorization, but a guy on the outside asking a bank employee to try a vault combo isn't breaking the law if the bank employee was previously authorized to access it. The crime is taking the green papers from the vault and transporting them off bank premises.
And even if he had been a journalist for purposes of these laws, he crossed the line when he helped Manning trying to crack the password. It doesn't matter that he failed--the problem is the attempt.
To use your bank analogy, the scenario would be that a guy without a bank account at the bank wanted money from the vault and helped the bank employee figure out the combo. Both the employee and the guy are guilty. On the other hand, if the employee had just given the guy some money from the vault, the guy isn't guilty of anything.
The fact that some claim that it is or should be illegal to tell someone to collect evidence of uninvestigated and unpunished war crimes for publication for the edification of the public shows you just how far down we’ve slipped down the slope.
So yes, you are correct and this trust the government gets to declare something a secret has been abused and the ONLY way to get to the truth was what Assange and Manning did. That this is the ONLY way is pretty important for the legal defense.
The court ruled that in order to restrict freedom of the press, the government "carries a heavy burden of showing justification for the imposition of such a restraint." The court further ruled that freedom of the press can only be restrained if there is clear, serious, immediate harm that would result directly from the publication of the material. Speculative arguments about what could happen are not sufficient to block publication.
Justice Hugo Black's argument is really quite beautiful: "The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell."
Remember what publications we're talking about here. These were documents detailing a war that the US and British governments entered into under false pretenses, and which they continued to lie to the public about. The public was served by knowing this information, and trying to put the people who published it behind bars, and treating them as if they were spies, is disgusting.
Wikileaks is fulfilling an important role, publishing documents that shed light on the secret actions of governments. That's a service to democracy.
I would argue that countries like the USA have moved too far in the latter direction and could use a good shove back to the middle.
This whole “it’s for your own safety, let us protect you with it, trust us (no you can’t read it)” is not informed consent and no amount of mental gymnastics will make it informed consent.
The government requires the consent of the governed or it is illegitimate. Secrets preclude informed consent. There is nothing special or unique about the humans in the government that entitle them to access to secrets whilst denying the governed that same access.
https://en.wikipedia.org/wiki/Thermonuclear_weapon#Public_kn...
The secrets of constructing a fusion weapon are some of the most closely guarded secrets humans have ever had.
https://en.wikipedia.org/wiki/History_of_the_Teller%E2%80%93...
Then again, I think all known practical methods of setting off a fusion bomb involve using a fission bomb to do so, so the barrier to entry for even experimentation/development is extremely high.
Note that we are talking about 1940's "fat boy" here.
Also, note that the fact that the poorest nation on Earth can do this today kinda says everything.
I think this is one of the things that we should be alarmed at, at how easy it is to make nuclear weapons in today's age. Putting your head in the sand and refusing to accept reality is dangerous.