Here's a back-and-forth from Wednesday's proceedings in the case against Pvt. Bradley Manning that should be troubling for journalists.
Colonel Lind, the judge, asked a prosecutor a hypothetical question: If Private Manning had given the documents to The New York Times rather than to WikiLeaks, would he face the same charges?
"Yes, ma'am," said the prosecutor, Capt. Angel Overgaard.
Journalists will often try making a distinction between their outlets and WikiLeaks, which, some say, is more of a clearinghouse for documents or perhaps a middleman between a source and news organizations. They may point out that their news organizations put raw material in context, call for comment, and weigh the government's concerns over publishing sensitive material.
But whatever journalists may think, the prosecutor in Manning's case sees no difference between a source's relationship with a major newspaper and with WikiLeaks. So presumably, a source providing information to the Times could similarly be prosecuted for indirectly "aiding the enemy," a capital offense.
Some have acknowledged the slippery slope before when it comes to leveling charges against Manning or WikiLeaks founder Julian Assange.
"If he can be charged, maybe the Washington Post and the New York Times and others can be charged," Congressman Ron Paul told me in Dec. 2010, as some political leaders were calling for Assange to be charged under the Espionage Act. News outlets, such as the Times, were not only publishing articles following WikiLeaks' release of State Dept. cables -- allegedly provided by Manning -- but also the cables themselves.
Several reporters spoke to me back then about the possible implications for journalists if the U.S. prosecuted WikiLeaks, all the more relevant given yesterday's proceedings.
Times reporter Eric Lichtblau--who co-wrote the SWIFT banking story and an earlier Pulitzer Prize-winning investigation of the NSA's warrantless wiretapping program--recalled how former Attorney General Alberto Gonzales suggested trying journalists for publishing classified information in 2006 before eventually backing off. "It certainly has a chilling effect when they throw out the Espionage Act," Lichtblau said.
If journalists are prosecuted for espionage, Lichtblau said, "there's an awful lot of public information that's going to be off limits."
The Washington Post's Dana Priest--who won a Pulitzer for her investigation of the CIA's "black" sites--has also felt the wrath of politicians over her investigative reporting. She said that "one of the reasons they criticize publicly is they don't want other people to get the idea that they should be doing this." Similarly, Priest said the result could be a "chilling effect on sources."
Priest says she doesn't consider Assange a journalist--in her judgment, he's more of an intermediary, who channels leaked documents for a source to news organizations. But she says she's concerned any time someone who's not a government official is charged with dissemination of classified documents because "it does get closer to what we do as journalists."
While the Manning case could set a troubling precedent for journalists, there still seems to be a different standard when it comes to prosecutions, with some high-profile, establishment journalists continuing to report on classified briefings without any apparent repercussions for them or their sources.
The Guardian's Glenn Greenwald zeroed in on that distinction, asking this morning, "Why are Bob Woodward's WH sources -- or Woodward himself -- not on trial next to Bradley Manning?"