Despite Vice President Biden's recent squabbling with Republican senators over the meaning of Christmas, he and Senate Minority Leader Mitch McConnell do agree on something. They both say WikiLeaks founder Julian Assange, who has published thousands of confidential Pentagon and State Department documents on his group's website, is "a high-tech terrorist."

But assuming that President Obama is not ready to drop a bomb on Assange, punishing him for disseminating military records and diplomatic cables will require specifying what crime he committed under U.S. law. That won't be easy, unless the Justice Department is prepared to criminalize something journalists do every day: divulge information that the government wants to keep secret.

Last week Assange's lawyer claimed a grand jury has been convened in Alexandria, Virginia, with the aim of indicting him. But under what statute? The most obvious possibility is the Espionage Act of 1917, which makes it a crime, punishable by up to 10 years in prison, to "receive," "deliver," "transmit," or "communicate" any "information relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

In spite of the law's sweeping language, it has almost always been applied to government employees who leak information, as opposed to people who receive it and pass it on. The one exception was the 2005 indictment of two former pro-Israel lobbyists who were accused of receiving and disclosing classified information about U.S. policy toward Iran. Their source, a Pentagon official, was convicted under the Espionage Act, but the case against them fell apart after the judge ruled that the government would have to show they knew their disclosures were unauthorized and might damage national security.

Assange could be prosecuted even under that reading of the law, and so could all the news organizations that ran stories about the WikiLeaks documents. But the government has never used the Espionage Act to prosecute a journalist, which is what Assange claims to be.

His critics disagree. "WikiLeaks is not a news organization," writes Washington Post columnist Marc Thiessen. "It is a criminal enterprise. Its reason for existence is to obtain classified national security information and disseminate it as widely as possible….These actions are likely a violation of the Espionage Act, and they arguably constitute material support for terrorism."

There is a circular quality to this argument: Assange is not a journalist because he's a criminal, and he's a criminal because he's not a journalist. But for constitutional purposes, it does not matter whether Marc Thiessen, Attorney General Eric Holder, or anyone else considers Assange a journalist.

"Freedom of the press" does not mean the freedom of those individuals who are lucky enough to be officially recognized as members of the Fourth Estate. It means the freedom to use technologies of mass communication, which today include the Internet. This freedom does not amount to much if the government can deny it to someone by questioning his journalistic credentials.

The government could try to avoid First Amendment problems by accusing Assange of conspiring with Pfc. Bradley Manning, the army intelligence analyst who is charged with leaking the Pentagon and State Department documents. Such a conspiracy could be a crime under the Espionage Act or the Computer Fraud and Abuse Act, which prohibits disclosure of sensitive national defense or foreign relations information obtained through unauthorized computer access. But so far no evidence has emerged that Assange was any more culpable in the leaks than a reporter who receives confidential information from a government source.

There is another way to stop anger over the WikiLeaks document dumps from turning into an assault on the First Amendment. Assuming the allegations against Manning are true, the government should be asking why its own data security practices are so shoddy that a single low-ranking soldier with computer access was able to divulge such a huge trove of supposedly secret information.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.