President Biden and Australian Prime Minister Anthony Albanese are expected to discuss Julian Assange's prosecution during next week's Australian state visit. Hopefully Biden and his administration will think seriously about the threat the prosecution poses to all journalists. "Julian Assange August 2014" by David G Silvers. is licensed under CC BY-SA 2.0.
Every time we talk about Julian Assange’s prosecution we hear the same thing from his critics: Assange is “not a journalist” and therefore his case has nothing to do with press freedom.
Sometimes they say it’s because he did not contextualize the documents Wikileaks published, or because of his radical political views, or because they think he’s a “hacker.” Other times it’s because of unsubstantiated claims the disclosures put American lives at risk. Still other times it’s due to allegations that — years after the events at issue in Assange’s indictment — he collaborated with Russia to help Donald Trump get elected.
Let’s assume all of that is true (it’s not). None of it is relevant under the main law being used to prosecute him, the Espionage Act. Here’s why the Assange prosecution endangers press freedom and puts all journalists at risk, even if you don’t think Assange is one himself.
The charges are about newsgathering, not Russia, Trump, and the DNC
First, we should get this out of the way: Assange’s indictment has absolutely nothing to do with the 2016 election.
The words “Russia,” “Trump,” “Clinton,” and “the 2016 election” are never mentioned. The Espionage Act charges against Assange are entirely about his obtaining and publishing documents in 2010 — more than six years earlier — from whistleblower Chelsea Manning. Those documents include war logs from Afghanistan and Iraq, State Department cables, and files on Guantanamo Bay prisoners. The government decided against indicting Assange in connection with the 2016 publication of DNC emails due to lack of evidence.
In other words, the charges are about journalistic newsgathering, not alleged Russian collusion. They’re a threat to journalists who have never talked to a Russian.
94% of the charges are about acts of journalism, not ‘hacking’
The Justice Department and Assange’s critics have taken great pains to portray Assange as a hacker rather than a journalist. Here’s what they usually leave out: The Espionage Act counts – which are 17 out of the 18 charges in the indictment – have nothing to do with hacking or a “conspiracy” to hack anything.
The government does not allege in those charges that Assange helped Manning “hack” any of the documents Manning sent to WikiLeaks. Instead, they accuse him of speaking with Manning over encrypted channels, asking her questions, convincing her to give him documents, receiving documents, holding on to them, and then publishing those documents. In other words, acts journalists engage in every day.
If Assange is convicted under any of those 17 charges it will create a standalone precedent against routine newsgathering. Convicting journalists in the future for similar activities would not require the government to also prove “hacking.”
The Espionage Act doesn’t exempt conventional journalists
The Espionage Act is a shockingly broad law that essentially criminalizes “willfully retaining” or “communicating” national defense documents to those not authorized to receive them. Whether Assange followed journalistic standards is irrelevant because the law, at least on its face, criminalizes this conduct from everyone: journalists and non-journalists alike. And despite its name, it does not require any accusations of “espionage.”
The indictment accuses Assange of illegally “inducing” or “abetting” Manning into giving him defense documents by speaking with her and asking questions. Under that theory, reporters at The Washington Post face exactly the same risk as Assange when they speak to sources, convince them to hand over documents, and ask questions. They can masterfully analyze and contextualize source documents and still be indicted for the same reasons Assange is charged with for publishing them without comment on Wikileaks.org.
That is exactly why the Obama administration decided against indicting Assange before the Trump and Biden administrations changed course. They hated WikiLeaks more than anyone, but reportedly cited “the New York Times problem” in declining to prosecute. There was no way to charge WikiLeaks without opening the door for prosecution of the nation’s most recognizable newspaper.
The only reason conventional journalists have not yet been tried under the act is because, so far, officials have opted not to go down that road — whether out of principle or fear of backlash. There have been plenty of close calls. Officials from the Nixon, Ford, Reagan, and George W. Bush administrations all considered prosecuting journalists under the act. Nixon even convened a grand jury to indict The New York Times and its reporter over the Pentagon Papers.
Ultimately, none of them pulled the trigger. But it would be foolish to assume future presidents also won’t, especially when Trump — who leads in some swing state polls — is openly threatening to jail some journalists and investigate others for “treason.” Convicting Assange would give Trump the perfect legal excuse to pursue his anti-press ambitions.
The Espionage Act is not concerned with the public good vs. ‘harm’
Many believe Assange deserves what’s coming to him because he allegedly put troops in harm’s way, despite the long history of similar government claims proving baseless. That, they claim, distinguishes him from more “responsible” journalists.
First of all, journalists cannot be required to prove their publications don’t create risks or endanger anyone in order to be protected by the First Amendment. That kind of thinking opens the door to mass censorship based on government claims of nebulous dangers.
But it wouldn’t matter if Assange definitively proves Wikileaks did not endanger or harm anyone. The government could even say in its opening statement at trial that Assange is a journalistic hero who courageously exposed heinous war crimes — and a jury could still convict him.
That’s because under the Espionage Act, neither good intentions nor positive outcomes are a defense, or even a mitigating factor. That means other journalists who publish government secrets can’t take any comfort in the fact they’re not alleged to have endangered anyone’s life (and who’s to say they won’t be falsely accused of exactly that).
It’s about journalism, not journalists
The bottom line is that the First Amendment protects acts of journalism, not just people with “journalist” on their LinkedIn profiles. The actions Assange is charged with — seeking out, obtaining, and publishing government secrets — are undisputedly journalistic acts. If you’re not convinced, ask the world’s leading newspapers.
No matter how much you might dislike Assange, his conviction would enable future administrations to target the journalists you do like. Even if your favorite journalists never end up being charged, the mere possibility will force them to tread cautiously when investigating government secrets.
As much as many may want to see Assange punished, the price of trying and convicting him is an existential threat to press freedom. It’s not worth it.
stLouIST
