It looks as if Pfc. Bradley Manning and Julian Assange will go down in history as outliers, not trend setters. There have been no copycat leaks of massive quantities of diplomatic and intelligence documents, despite how easy the Internet makes it to leak and the fact that more than four million Americans have clearance to access government secrets.

Among the prosecution's more than 100 witnesses will be a Navy SEAL who participated in the raid in Pakistan that killed Osama bin Laden. He'll testify to finding Manning-Assange documents on the terrorist leader's computer. Prosecutors are seeking a sentence of life in prison without the possibility of parole.

The key element of this espionage charge is intent: Did Pfc. Manning mean to give intelligence to the enemy? In his 35-page plea, Pfc. Manning describes himself as a whistleblower, but he doesn't explain what he was blowing the whistle on. The documents didn't disclose government wrongdoing. Instead, WikiLeaks posted unedited diplomatic and intelligence cables that identified by name Iraqis, Afghans and others who were helping the U.S. war effort. People were outed as homosexuals in countries where that makes them a target for deadly violence. Prosecutors will identify a long list of victims.

Building a case that Pfc. Manning knowingly gave intelligence to the enemy seems open and shut. The more interesting question is how this requirement of intent applies to Mr. Assange.

President Obama has used the Espionage Act often, invoking it six times to bring cases against government officials for providing classified information to the media—twice the number of such cases brought by other presidents since the law was passed in 1917. So it's at least curious that Mr. Assange hasn't been charged.

Bill Keller, a former executive editor of the New York Times, recently wrote: "As a matter of law I believe WikiLeaks and the New York Times are equally protected by the First Amendment." That misses the point. Unlike WikiLeaks, the mission of newspapers is to inform the public. Mr. Assange's stated mission is to undermine the U.S. That ought to make it much easier to prove that he intends to help the enemy.

"An authoritarian conspiracy that cannot think efficiently," [Assange] wrote in 2006, "cannot act to preserve itself."

But news executives and media lawyers should think twice before treating Mr. Assange as if he were a journalist. If leaders in the news industry blur the distinction between their journalists and self-proclaimed enemies of the state like Mr. Assange, they may encourage prosecutors to make the same false equivalence.

A country's constitutional culture is made up of the stories we tell each other about the kind of nation we are. When we tell ourselves how strong our commitment to free speech is, we grit our teeth and tell of Nazis marching through Skokie. And when we think of how much we value our watchdog press, we tell the story of Daniel Ellsberg. Decades later, we sometimes forget that Ellsberg was prosecuted, smeared, and harassed. Instead, we express pride in a man's willingness to brave the odds, a newspaper’s willingness to take the risk of publishing, and a Supreme Court’s ability to tell an overbearing White House that no, you cannot shut up your opponents.

The reputation that WikiLeaks has been given by most media outlets over the past two and a half years, though, obscures much of this—it just feels less like “the press” than the New York Times. This is actually the point on which I am expected to testify at the trial, based on research I did over the months following the first WikiLeaks disclosure in April 2010. When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden's calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.

In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International's New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.

If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense?

What a coup for Al Qaeda, to have maimed our constitutional spirit to the point where we might become that nation.

If stealing secrets is an act of war then America is currently at war with all of its allies. Espionage is what governments do so they don’t have to go to war...directly. What appears to be upsetting the Congressman is that the Chinese are using espionage to make money in a way that the United States didn’t think of first.

The Times wasn’t content with using other peoples’ reports based on circumstantial evidence so it went out and got one of its own. The study by Mandiant has come under some fairly withering criticism.

-It doesn’t appear to say anything new. CEO Kevin Mandia: "Mandiant’s not the first company to blame China for the hacks, but it was our turn to carry the ball for a little bit." Translation = “We were working for the NYT and that’s some golden PR.”

-Did I mention it was based on circumstantial evidence? Jeffrey Carr does a superb job of explaining why Mandiant saw exactly what it expected to find and then offers several other equally valid possible perpetrators, including Russia, France and Israel.

Here is my boilerplate response on the security weakness of U.S. utilities in regards to cyber attacks: "Yes, there is a problem. It is not a crisis. To do any significant damage any such attack would most likely have to be associated with a physical attack." (The sky is not falling, Chicken Little, but I bet I could make a whole lot of money convincing you otherwise.)

But amidst all the lawsuits and accusations, it turns out there are some other fascinating stories to be found in News Corp's world of competitive corporate hacking and private security. A new book by Neil Chenoweth, Murdoch's Pirates, digs into that world and turns up some pretty fascinating results. From an excerpt published in the Sydney Morning Herald, we get the story of some befuddled inter-agency espionage between News Corp and its own subsidiary, complete with aliases, informants, moles and a cross-border escape gambit by a spy on the run.

The story is complex, but I'll attempt to summarize. In the late 90s, NDS (the branch of News Corp that deals with private security and anti-piracy activities) sent top hacker Oliver Kömmerling undercover to Toronto, under the pseudonym Alex, with a mission: pose as a satellite pirate and infiltrate the rings selling hacked DirecTV smartcards. Oliver was also one of the hackers directly involved in the hacking of competitors' smart cards, but in this case he was being put to work defending News Corp's own satellite operation. But NDS made one big mistake: they never told DirecTV, which had its own security/anti-hacking division led by a former FBI agent, and they believed Oliver was still a bonafide satellite pirate at large. They had no idea he was now working for NDS—and one of the Canadian hackers Oliver met with turned out to be working for DirecTV, and ratted him out to them. Moreover, no matter NDS or Oliver's intentions, he was breaking the law by hacking and selling smart cards to track down the "real" hackers—so he ended up facing potential arrest or detainment at the border.

As a result, the two security divisions (both ultimately owned by News Corp) played spy-games with each other, and for the details you really should just read the whole story. It's fascinating, and quite funny—and it also raises some interesting questions about how big corporations should approach this kind of security. In one way, I actually think some of the principles here are the right way to approach things—investigate the biggest commercial pirates until you have enough evidence to either bring a lawsuit against them or pass the case along to a criminal prosecutor. That's better than having the government act as corporate police. However, big problems arise when companies start breaking the law in the course of their investigation—as much as they might want to play spy, they don't get the exemptions that law enforcement and intelligence agencies do. It's also highly troubling when their investigations are intertwined with law enforcement, such as when FACT in the UK joined the police raid on the SurfTheChannel offices—that's crossing a line between private interests and government. But then, on top of all that, you have the potential for a comedy of errors like this one: News Corp spending lots of resources to put a man in significant danger in a foreign country, for the sake of hacking its own products, and spurring its own property to put more resources into tracking down a hacker that was supposed on be on their side. At some point you have to ask: what is security worth? And how likely is it to be effective against hackers if it is disorganized to the point of farce?

But again and again, throughout the report, the pattern emerges: an allegation is made, Huawei denies it, without providing evidence deemed detailed enough to substantiate the denial, and the Committee is unimpressed.

One fundamental failure of all this official hand-wringing is that it neglects the fact that many if not most of the components, with the exception of certain higher-value chips like those from Intel, are manufactured in China. Cisco Systems and Juniper Networks in the U.S., Alcatel-Lucent in France and Ericsson in Sweden, all use Chinese-made parts and carry out at least some portion of the final assembly of their equipment in China.

Might China respond with its own restrictions against U.S. telecom firms like Cisco and Juniper? Is this the first shot of a telecom trade war? We’ll see.

If that happens, expect Cisco to be hurt more than Huawei. U.S. sales account for only 4 percent of its overall revenue, whereas Cisco’s operations in Asia, the Pacific Rim and China account for more than 16 percent, and China was its second fastest-growing market in that region after Japan.

But it also highlights a very important potential controversy: the refusal of numerous witnesses to cooperate in any way with this pernicious investigation. One witness who has appeared before the Grand Jury has already refused to answer any questions beyond the most basic biographical ones (name and address), invoking the Fifth Amendment right against self-incrimination to do so, and other witnesses are highly likely to follow suit.

One option for federal prosecutors when facing a witness who refuses to answer questions on this basis is to offer them immunity, meaning that nothing they say when testifying can be used to prosecute them (they can still be prosecuted, just not with the aid of anything they say while testifying). Such an offer then precludes further invocations of the self-incrimination privilege as a grounds for refusing to answer questions, as it means there is no longer any danger that the witness could incriminate themselves by testifying. In the event the government makes such an offer, the court would almost certainly compel the witness to answer questions. But at least some of those witnesses -- ones who have already been subpoenaed or are likely to be -- intend to refuse to answer questions anyway, risking an almost-certain finding of contempt of court, which typically carries jail terms as a means of forcing testimony.

One witness or potential witness who is considering that form of civil disobedience told me they view the attempt to criminalize WikiLeaks as such a profound assault on basic freedoms, including press freedoms -- one motivated by a desire to conceal government wrongdoing and illegality -- that they would rather be imprisoned than cooperate in any way with those efforts. That is the mindset of true principled heroism, and if it actually comes to that, anyone committed to transparency and preservation of press freedoms should do everything possible to support such persons in any way they can...

"Prosecuting WikiLeaks would raise the most fundamental questions about free speech, about who is a journalist and what citizens can know about their government," Conyers said. "The problem today is not too little secrecy but too much secrecy."

"Secrecy is the trademark of totalitarianism. In contrast, transparency and openness is why democracy is all about," Delahunt said.

"There is far too much secrecy and overclassification in the executive branch, and I think it puts American democracy at risk."

[The] statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications.....

Where First Amendment rights are implicated, it is the government's burden to show that its interest is sufficiently compelling to justify enforcement. Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that "state action to punish the publication of truthful information seldom can satisfy constitutional standards." And it has described the constitutional purpose behind the guarantee of press freedom as the protection of "the free discussion of governmental affairs."

[...]

[If] national security interests were not sufficient to outweigh the First Amendment principles implicated in the prior restraint of pure speech related to the public interest, as in the Pentagon Papers case, it is difficult to discern an obvious rationale for finding that punishing that same speech after it has already been disseminated nevertheless tilts the balance in favor of the government's interest in protecting sensitive information.

The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection. The Court has not resolved the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well." (The Pentagon Papers Court did not consider whether the newspapers' receipt of the classified document was in itself unlawful, although it appeared to accept that the documents had been unlawfully taken from the government by their source).

The Court has established that "routine newsgathering" is presumptively lawful acquisition, the fruits of which may be published without fear of government retribution.