Comey stated, "In my view, a huge portion of WikiLeaks' activities has nothing to do with legitimate news gathering, informing the public, commenting on important public controversies but is simply about releasing classified information to damage the United States of America."
The idea that a media organization ceases to be a "journalistic outfit" protected by the First Amendment when they are intent to "damage" a country's government was considered by Attorney General Alberto Gonzales in 2006.
As part of President George W. Bush's administration, Gonzales believed the Times' publication of details exposing the National Security Agency's warrantless wiretapping program could be a violation of the Espionage Act of 1917, a statute the Justice Department used routinely to prosecute leaks when Barack Obama was president. By revealing how the government conducted surveillance of "terrorists," Bush administration officials argued journalists had helped enemies learn about a key method used to track them and so they would be able to circumvent it.
This is also the government's argument for criminalizing WikiLeaks. It is amplified by the contention that WikiLeaks does not contact U.S. agencies first like the Times or the Post to see if any of the material will put American lives in danger if documents are published.
Comey reasoned U.S. outlets "almost always call us before they publish classified information and say is there anything about this that is going to put American lives in danger, that's going to jeopardize government people or military people or innocent civilians anywhere in the world and then work with us to accomplish their important First Amendment goals while safeguarding those interests."
"This activity I'm talking about, WikiLeaks, involves no such considerations whatsoever. It's what I said to you, intelligence porn. Just push it out in order to damage," Comey added.
It is not true that WikiLeaks has never contacted the U.S. government to ask for help in order to safeguard lives. WikiLeaks said it contacted the Pentagon for assistance with 15,000 military incident reports containing the names of Afghan civilians. The Pentagon acted as if WikiLeaks was lying about contacting officials and demanded WikiLeaks return any stolen documents they had immediately.
For at least seven years, the U.S. government has been hostile toward WikiLeaks. If WikiLeaks does not contact officials to talk to them about planned releases, it is because they have a reasonable fear such contact will be used to target WikiLeaks or engage in counterintelligence operations designed to undermine or discredit their work.
When critics reflexively state that WikiLeaks has endangered lives, they typically are referring to the publication of the Afghanistan War Logs. But Pentagon press secretary Geoff Morrell stated, "We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents," and later, the Associated Press concluded on August 17, "There is no evidence that any Afghans named in the leaked documents as defectors or informants from the Taliban insurgency have been harmed in retaliation."
The notion that WikiLeaks does not comment on this information like other outlets is not true either. While it may not publish news stories, it has facilitated partnerships between media organizations indirectly and directly in order to ensure documents receive widespread attention. Assange has also held press conferences and posted press releases, where comments on specific aspects are highlighted for media and the public.
What Is "Legitimate" News Gathering?While it may make for a good-sounding soundbite and discredit WikiLeaks, "intelligence porn" is a misnomer. "Intelligence porn" is what CBS's "60 Minutes" created when then-correspondent John Miller toured the NSA in December 2013 and boasted about gaining access to spies. WikiLeaks publication is the opposite and shows how obscene it is for the press to be so philanderous with security officials.
Sasse's questions for Comey were aimed at convincing more of the press, as well as citizens, to favor prosecution of Assange and anyone else who works for WikiLeaks.
There was an exchange, where Comey asserted there was no plan to criminalize journalists at established outlets for asking intelligence employees to leak information. "Our focus is and should be on the leakers, not those that are obtaining it as part of legitimate news gathering," Comey said.
Yet, what is "legitimate" news gathering and what business does the government have deciding who is and is not engaged in such "legitimate" journalistic activities?
The testimony failed to contemplate the current media landscape. Where do independent bloggers or citizen journalists fall into all of this? Do they have to contact agencies to publish work without fear of being criminalized as someone traitorous or unpatriotic?
More significantly, the insistence that the Justice Department will not expand the Espionage Act to go after journalists at the Times or Post is belied by the fact that Attorney General Jeff Sessions opposes protections for reporters who publish leaks.
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