Times Editor Alarmed By Prospect of WikiLeaks Prosecution

NEW YORK — New York Times executive editor Bill Keller may not regard Julian Assange as a journalistic peer, but he made clear Thursday that he doesn’t think the WikiLeaks founder should face criminal prosecution in the United States.

Keller joined his counterpart from Britain’s Guardian newspaper and a prominent Harvard Law School professor on a panel at Columbia University to discuss WikiLeaks, the secret-spilling website that has been publishing U.S. diplomatic cables and battlefield reports from Iraq and Afghanistan.

“It’s very hard to conceive of a prosecution of Julian Assange that wouldn’t stretch the law in a way that would be applicable to us,” said Keller. “Whatever one thinks of Julian Assange, certainly American journalists, and other journalists, should feel a sense of alarm at any legal action that tends to punish Assange for doing essentially what journalists do. That is to say, any use of the law to criminalize the publication of secrets.”

Since last year, when WikiLeaks published vivid footage of a U.S. helicopter shooting people — including two Reuters employees — in Baghdad, the site has become a flashpoint in a rancorous debate over national security, free speech, and journalism.

The Guardian and The Times worked with Assange to release some of the material in their publications, as did Le Monde in France, and Der Spiegel in Germany. Keller tapped several of his most seasoned reporters to pore over the documents, decide what was newsworthy, and redact information that could put lives in jeopardy.

U.S. Attorney General Eric Holder has said the government is investigating the breach, and many politicians have called for Assange, who is currently in London, to be brought to the U.S. and put on trial.

So far only one person has been arrested over the leak, a 23-year-old U.S. Army Private First Class named Bradley Manning, who is currently being held in maximum security in the Marine Corps Brig in Quantico, Virginia.

Jack Goldsmith, a Professor at Harvard Law School and former Assistant Attorney General, told panel moderator Emily Bell, the Director of the Tow Center for Digital Journalism at Columbia, that a U.S. attempt to prosecute Assange would encounter two major challenges.

First, the government could face difficulty in extraditing Assange to the U.S., Goldsmith said, because of the “political offense exception,” which might allow the U.K. to deny an extradition request.

Second, an actual prosecution of Assange would be very difficult, Goldsmith said, because no journalist has ever been successfully prosecuted in the U.S. for disclosing government secrets.

“It would be a very momentous step to bring this prosecution,” Goldsmith said. “I’d imagine there’s a great deal of discussion about the seriousness of bringing such a prosecution because of the implications for the First Amendment and the press generally.”

Goldsmith said he believes a prosecution will ultimately be mounted, but predicted it will not succeed.

Guardian editor Alan Rusbridger described Assange as a kind of hybrid entity who wears “different hats” at different times — source, entrepreneur, partner, and editor. “Assange is building the brand of Wikileaks, and good luck to him,” he added.

While Goldsmith distinguished between WikiLeaks and The New York Times as journalistic institutions, he said that WikiLeaks is “functionally equivalent to what Bill [Keller’s] dozen-or-so national security reporters do every day.”

Reporters can sometimes becomes the targets of hackers themselves.

Keller said that The Times is currently investigating suspicious activity on the email accounts of three of his journalists who had been working on the WikiLeaks project. He said the staffers had “virtually identical eruptions on their email accounts” and added that a forensic expert said the accounts were hacked. He declined to go into further detail.

Goldsmith argued that WikiLeaks should be viewed as part of a larger trend over the last decade or so, during which time the spread of the internet and the proliferation of broadband access has rocked journalism and the media business more broadly.

“This is part of a larger continuum of the digitization of information and the great difficulty the government has in keeping secrets,” Goldsmith said. “There’s going to be an arms race between the government and the media, because the government will lock itself down. And I think the government will ultimately lose that arms race.”