Prosecuting Julian Assange under the outdated World War I-era Espionage Act would be difficult. To prosecute him or WikiLeaks for receiving and disseminating copies leaked documents runs into First Amendment protections for press freedom. The alternative is to try to prove that he conspired with the original source to leak the information in the first place. Then the government doesn’t have to explain why they are prosecuting Assange and not other media outlets who published the same information.
And the NYT reports that there may be evidence that Assange worked with the alleged leaker, Private Bradley Manning, to get the information out:
“Among materials prosecutors are studying is an online chat log in which Private Manning is said to claim that he had been directly communicating with Mr. Assange using an encrypted Internet conferencing service as the soldier was downloading government files. Private Manning is also said to have claimed that Mr. Assange gave him access to a dedicated server for uploading some of them to WikiLeaks.
Adrian Lamo, an ex-hacker in whom Private Manning confided and who eventually turned him in, said Private Manning detailed those interactions in instant-message conversations with him.
He said the special server’s purpose was to allow Private Manning’s submissions to “be bumped to the top of the queue for review.” By Mr. Lamo’s account, Private Manning bragged about this “as evidence of his status as the high-profile source for WikiLeaks.”
Wired magazine has published excerpts from logs of online chats between Mr. Lamo and Private Manning. But the sections in which Private Manning is said to detail contacts with Mr. Assange are not among them. Mr. Lamo described them from memory in an interview with The Times, but he said he could not provide the full chat transcript because the F.B.I had taken his hard drive, on which it was saved.”
Of course, a judge could decide that such online chats are inadmissible hearsay evidence.