Government's strategy: A double noose for Manning and Assange In Manning trial opening statement, prosecutor argument carries worrying First Amendment repercussions

The government prosecutor's intentions were clear in his opening statements at Pfc. Bradley Manning's court-martial hearing. He attempted to paint the soldier as a fame-seeker, leaking government documents out of self-interest. Part of the tactic included arguing that Manning's relationship to WikiLeaks publisher Julian Assange was closer than previously had been established. Indeed, even WikiLeaks' most fervent supporters would struggle to defend Assange against charges of narcissism -- the prosecutor's strategy in linking the two men was in this way not subtle. Its repercussions if successful, however, could be far-reaching and chilling.

The prosecutor went as far as to say that Manning was taking direction from WikiLeaks, following the site's "most wanted" list when searching for classified documents to leak. Assange was mentioned no fewer than eight times in the prosecution's opening statements.

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Manning's defense team outright rejected the government's claims."There is no evidence to support that Manning took direction from WikiLeaks or that he used this list as a guide to what he would give to WikiLeaks. Mr Manning was not taking his direction from WikiLeaks," Manning's attorney, David Coombs, told the court.

Ed Pilkington of the Guardian noted, "The prosecution case that Assange and Manning were actively acting together has widespread ramifications, not just for the trial of Manning, who faces 21 counts relating to the leaks that carry a possible life in military custody. The claim also has potentially serious implications for Assange himself, who has been, and may still remain, the subject of a grand jury investigation in Virginia exploring the possibility of a federal criminal prosecution against him."

And there is a further point to add. I have no love for Julian Assange, but a particularly worrying precedent could be set if the government, through levying "aiding the enemy" charges at Manning, is able to frame as criminal Assange's actions in obtaining and publishing leaked information. In light of recent revelations that an FBI affidavit named Fox News reporter James Rosen as a potential "co-conspirator" in a leaks investigation, the suggestion of an Assange-Manning alignment worthy of prosecution again illustrates a troubling tendency from this administration to persecute not only whistle-blowers, but the journalists that seek government information.

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The suggestion, clearly made by Manning's prosecutor, is that Assange actively solicited information and therefore acted outside the remit of protected journalistic activity. A criminal prosecution against the WikiLeaks publisher would set a troubling precedent for the future of journalists who seek sensitive information from sources (the ostensible premise of strong national security reporting). Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, has pointed out that it's a clear abrogation of the First Amendment "for the administration to target Julian Assange or any individual who discloses information that that individual receives when that person has made no pledge and is under no obligation legally to keep that information within the government."

Goitein emphasized, "When you start talking about people who are acting as spies, and quite liberally funneling information to foreign governments that they know can be used to hurt the United States, you’re talking about something different. In terms of whether the First Amendment would protect that, I think courts would be working with a very different set of facts. That is not what we’ve been talking about in any of these cases."

Assange himself, speaking from the refuge of the Ecuadorean Embassy in London, where he is fighting extradition to Sweden over sexual assault allegations, commented on the troubling implications of the government prosecutor's argument:

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The precedent works like this: If you communicate with a journalist, then you communicate with a publisher, then you communicate with the public, then you communicate with al Qaeda -- so you communicate with enemies of the United States, and as a result your communications with a journalist must be punished by death or life imprisonment. If tolerated, that will lead to regimes where every U.S. government source, when speaking to a journalist, must be concerned that they will suffer either the death penalty or life imprisonment as a result. Now having established that, the U.S. government will have set the precedent that not only is the [source] indirectly communicating with al Qaeda by communicating with the public, but the publisher and the journalist is as well. And therefore the publisher and the journalist can be embroiled in espionage charges, some of which similarly carry the death penalty.

It's within our sad state of media polemics that I feel compelled to note: I think the sexual assault allegations against Julian Assange must be taken seriously. That said, I think the government attempt to align Manning with Assange is a disturbing double-play: First, it paints Manning as an Assange-style narcissist, seeking fame through whistle-blowing; Second, it lays the ground for an attack on Assange-as-publisher and publisher-as-criminal that has chilling implications for the future of First Amendment-protected activity.