Dan, that’s interesting news, and it makes sense. I raised this possibility in the op-ed I did for the New York Daily News on Sunday. Countering the most prominent arguments made by opponents of an Assange prosecution, I argued:
WikiLeaks fans next attack allegations of espionage on jurisdictional grounds, arguing that the overseas acts of non-Americans fall outside the reach of our laws. As the Congressional Research Service notes, however, espionage is among the plethora of U.S. penal laws given extraterritorial effect. What’s more, Assange appears to have encouraged traitorous U.S. officials to steal classified information and transmit it to WikiLeaks for disclosure. That would raise the specter of criminal conspiracy – and no matter where they are located, conspirators are vicariously responsible for the acts of their American confederates.
If DOJ can establish that Assange and Manning are coconspirators, it would sidestep two challenges. First, as contended above, it would moot the dubious claim that there is no jurisdiction over Assange — if he is vicariously liable for Manning’s actions, then there is jurisdiction over Assange if there is jurisdiction over Manning.
Second is the question of whether Assange is a journalist (something Gabe Schoenfeld raised a few days ago in a post I haven’t had time to answer yet). Since conspirators are equally responsible for all actions of every conspirator, then Assange would be legally culpable for Manning’s unlawful conversion of classified information. While some argue that journalists may publish any information that falls into their lap (a position I don’t buy), I think very few people believe journalists have immunity to steal information in order to disseminate it.