Free Press

The Julian Assange Case Threatens All Journalists Who Scrutinize Government Conduct

U.S. officials claim their espionage laws apply to the world, but constitutional protections do not.

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This week sees the resumption in London of the extradition hearing for Julian Assange, founder of Wikileaks. Assange faces charges in the U.S. of conspiring with Chelsea Manning and hackers to gain access to and publish classified information that embarrassed the government. It's an extraordinary proceeding which has American officials claiming that U.S. law applies to a foreign publisher, but that U.S. constitutional protections do not.

It's also a caution to journalists that governments will go to any length to punish those who inconvenience or embarrass them.

Assange's troubles began when he worked with Manning—who was then a U.S. Army soldier—to acquire and publish classified documents related to the wars in Iraq and Afghanistan. Notably, the documents included footage of U.S. helicopters shooting people, including civilians, in Baghdad in 2007.

Manning ended up in prison for leaking the information, while Assange hid for years in Ecuador's U.K. embassy as the British government sought his arrest. Ostensibly, U.K. authorities wanted him for Swedish sexual assault charges, though later the pretense was dropped and by the time he was surrendered by a new Ecuadorian administration in 2019, he openly faced charges under the U.S. Espionage Act.

This is where things get interesting—more interesting, that is—because the U.S. throws the book at Assange, including for conduct that clearly constitutes journalism. The indictment reads, in part:

JULIAN PAUL ASSANGE … having unauthorized possession of, access to, and control over documents relating to the national defense, willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.

"Nothing in this count turns on Assange's having helped or solicited Manning's leaks," commented law professor, constitutional expert, and Reason contributor Eugene Volokh at the time of Assange's original indictment. "Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn't have to find any complicity by Assange in the initial leak."

That is, Assange's alleged crime under that language is nothing more than publishing classified material.

Other charges, based on soliciting information from Manning and from hackers, have their own problems. Journalists have frequently done exactly that in high-profile cases, such as when the The Washington Post and The Guardian worked with Edward Snowden to publish his surveillance revelations, and when The New York Times and the Post did the same with Daniel Ellsberg with regard to the Pentagon Papers.

The implications of indicting Assange gave even the Obama administration pause, despite its reputation for hostility toward press scrutiny. To go after the Wikileaks head would be to start down a path that could land many journalists in prison simply for doing their jobs.

"Justice officials said they looked hard at Assange but realized that they have what they described as a 'New York Times problem,'" the Washington Post noted in 2013. "If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain's Guardian newspaper, according to the officials."

To work around such concerns, the Trump administration has adopted the novel position that American laws do apply to people outside the United States—as demonstrated by the indictment of a publisher who committed his "crimes" without setting foot within U.S. borders—but without constraint by constitutional protections.

"Julian Assange has no First Amendment freedoms," then-CIA Director Mike Pompeo told an interviewer with the Center for Strategic and International Studies in 2017. "He's sitting in an embassy in London. He's not a U.S. citizen."

That's a selective application of U.S. authority that rightly sends chills down the spines of people to whom it applies.

"At the same time that the U.S. government is chasing journalists all over the world, they claim they have extraterritorial reach," Wikileaks editor Kristin Hrafnsson warned earlier this year. "They have decided that all foreign journalists … have no protection under the First Amendment of the United States."

And while Hrafnsson works for the online publication that has been directly targeted by the U.S. government, the prosecution of Assange has much larger ramifications.

"This indictment effectively opens the door to criminalising activities that are vital to many investigative journalists who write about national security matters," PEN International Executive Director Carles Torner cautioned in a July letter signed by 40 press and human rights organizations.

If the prosecution of Assange stands, it would imply that only American journalists could hope to safely report sensitive information about the U.S. government without risking punishment for their efforts at the hands of authorities who claim to exercise worldwide jurisdiction unconstrained by constitutional safeguards for natural individual rights. Journalists elsewhere—especially those under allied governments such as those of Australia and the U.K., which have cooperated in the pursuit of Assange—would be at risk of quasi-legal retaliation.

But it's not obvious that American journalists are entirely safe either. Even as the U.S. government expands the claimed jurisdiction of its laws while shrinking the application of its constitutional safeguards, it's also applying the law in novel ways. "For the first time in the history of our country, the government has brought criminal charges under the Espionage Act against a publisher for the publication of truthful information," the American Civil Liberties Union (ACLU) points out.

Pompeo of the CIA saw no difference in the actions of Assange and whistleblower Edward Snowden, discussing them together in the 2017 interview. "We at CIA find the celebration of entities like WikiLeaks to be both perplexing and deeply troubling because while we do our best to quietly collect information on those who pose very real threats to our country, individuals such as Julian Assange and Edward Snowden seek to use that information to make a name for themselves," he said.

It's easy to foresee U.S. government officials continuing to stretch the law, and shrink constraints, in order to reach domestic journalists who piss them off.

If extradited and convicted, Assange faces up to 10 years in prison on each of 17 counts of the indictment, and five years on the eighteenth. That could constitute the effective end of the publisher's hopes of freedom. It would also be a bare-fisted threat to all journalists who scrutinize government conduct.

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  1. >>The Julian Assange Case Threatens All Journalists Who Scrutinize Government Conduct
    I didn’t know journalists were a legally protected class.

    1. There are not, except under the “I say so” clause.

    2. You also didn’t know that all people are journalists. As long as the First Amendment speaks of “press” as a distinct noun, there will always be journalists. It doesn’t matter that “the press” is 1789-speak for “publishers”.

      1. But CNN’s Supreme Court Justice, Chris Cuomo said I’d be breaking the law if I read Hillary Clinton’s release emails. Journalists had a free pass because they were trained in ethics and morally superior to plebeians, such as myself.

      2. This is exactly the correct stance. Journalists don’t have “special” privileges, WE ALL DO because journalism is an ACTION, not (just) a profession.

        When you are filming a police stop, you’re being a journalist. When you’re live-streaming a “protest”, you’re a journalist.

        That said, saying you’re press doesn’t grant you any special rights. If the actions of the police here are wrong (and they seem to be), they are wrong against everybody, not just the press.

      3. You go on Volokh enough to realize his understanding of the press referred to the printing press, or the ability to mass produce speech. But apparently not.

  2. What the charges really are:
    ” having unauthorized possession of, access to, and control over documents relating to the national defense, willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.”

    What you try to spin them into:
    “Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. ”
    You are the only one claiming that the actual publication is being prosecuted. I will believe my lying eyes.

    1. And you will deny individual rights in favor of State power.

    2. IMO another huge issue is applying US law to a foreign person on foreign soil, so even if you think that the charges have been unfairly represented, I think they have certainly been unfairly applied.

  3. “‘Julian Assange has no First Amendment freedoms”… “He’s sitting in an embassy in London. He’s not a U.S. citizen.”‘

    Does Pomeo realize that the First Amendment protections are not limited to citizens? Ignorance or hyperbole? I will leave it up to others to hash it out.

    1. Do you realize that US Constitution First Amendment freedoms are limited to US citizens (anywhere) and non-citizens present in the US.

      The don’t apply to someone not a US citizen sitting in a non-US embassy in London, UK

      1. How do you figure? I don’t see that in the text of the constitution. It says that US laws can’t touch certain things. Congress still made the law.

      2. Not exactly, the first amendment applies to “people.”

        And, “‘the people” refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”’ Pp. 264-266. (UNITED STATES v. VERDUGO-URQUIDEZ (1990).

        I do not know enough about Assange to even have an opinion if he has such a :sufficient connection.” Might be an interesting court case.

        1. The Constitution “applies”, i.e., is a limit on govt. authority, NOT people, any people, anywhere. If a govt. official exceeds constitutional limits, the govt. must determine it and apply a remedy, i.e., the govt. limits itself, punishes itself, or not.
          If the American people see an unrestrained govt., a govt. for authority, by authority, of authorities, they are required, have a duty to overthrow/abolish it.
          What would replace it? Hopefully, personal self-governance.

  4. “Julian Assange has no First Amendment freedoms,”

    Nobody has any First Amendment freedoms, the First Amendment provides a check on government powers to abridge your natural rights. And if you adhere to the Declaration of Independence’s view of natural rights, all men are endowed by their Creator with these rights, not merely those men fortunate enough to be born Americans.

    1. Cloudfare really needs to tell the Koch (formerly Brothers) and Reason magazine to pound sand with their libertarian trash.

    2. An oft overlooked political fundamental principle found in the DOI.
      The Constitution “applies”, i.e., is a limit on govt. authority, NOT people, any people, anywhere. If a govt. official exceeds constitutional limits, the govt. must determine it and apply a remedy, i.e., the govt. limits itself, punishes itself, or not.
      If the American people see an unrestrained govt., a govt. for authority, by authority, of authorities, they are required, have a duty to overthrow/abolish it.
      What would replace it? Hopefully, personal self-governance.

  5. Mr Trump, Pardon Assange! (And Snowden) You know it’s the right thing.

  6. IANAL, and I wonder about some legal fine points of pardons.

    AIUI, commuting a sentence doesn’t clear the record, it simply says the sentence ends as of today, or possibly some other date certain, and may or may not end fines too, and maybe even restitution, I do not know.

    But pardon clears the record. Is it as if never arrested? never tried? acquitted?

    That’s one part of it. It relates to a second puzzle: if two people are convicted of conspiring to commit some crime, and one is acquitted, is the other automatically acquitted? If it possible for multiple people to be charged with conspiracy, all but one acquitted, and the last one found guilty? Is it possible for a single person to be charged with or found guilt of conspiracy, not counting the “other unknown persons” or “persons to be named later”?

    Then tie those together. If two people are found guilty of conspiring to commit a crime, and one is pardoned, what affect does that have on the other person?

    1. Re: the second part, why not? Acquittal (or pardon) of one conspirator would be like saying, “that person wasn’t involved;” I don’t see why it would necessarily involve any other defendant in the same case.

      1. Does a conspiracy require more than one conspirator? If one is acquitted, how can the other be guilty?

        1. Oh, I see. IANAL either, and it seems I was wrong; at least a quick search says it has to be two or more people. So what happens if it gets down to one? Good question…

          1. My brain got some interesting training from 7 years writing computer diagnostics, looking for broken chips and connections and whatnot, and Murphy was my mentor.

        2. Or ro put it another way, isn’t your phrase “Acquittal (or pardon) of one conspirator” misleading for one, and confusing the two questions? It should be “Acquittal of one accused conspirator” meaning the acquitted was found to not be a conspirator. Then bring the pardon into the picture: is a pardon the same as an acquittal?

          1. Yeah, my phrase was incorrect. I found this, FWIW:

            The essence of conspiracy is agreement, which requires two or more parties. However, the modern approach is that a conspiracy may be formed as long as one of the parties has the appropriate intent (Ind. Code, 2011). Pursuant to this unilateral view of conspiracy, a conspiracy may exist between a defendant and a law enforcement decoy who is pretending to agree.

            https://open.lib.umn.edu/criminallaw/chapter/8-2-conspiracy/

            1. Skip the decoy case too, along with “unindicted co-conspirators”. Stick with just two actual alleged conspirators. Keep it simple. Assume a spherical cow for the first approximation.

  7. Traitors give the advantage to one side. Assange shared the information with everyone.

    If that spoiled US plans to be the aggressor or lie to it’s citizens, real treason, good.

  8. Assange was never a journalist. He was and is a self-promoting slimeball.

    1. He may be a slimeball, but everyone who publishes is a journalist. There is no distinct certification; it’s not like lawyer or doctor where you can require that plaque hanging on the wall.

      Individual rights are your friend.

      1. So I’m a publisher? I’m the Press? Well then, from my lofty perch as someone of a better class than you, I still say Assange was never a journalist.

        1. If you publish it, you are the press. Whether a blog or a 1789 flat bed manual printing press, And you are still bog-ignorant and bog-arrogant about being bog-ignorant.

        2. You are indeed. But so is the guy you are talking to. So am I. We ALL enjoy freedom of the press.

    2. Absolutely ! Assange is not a journalist or a publisher. He is a Master Hacker and a Career Criminal. He needs 10 to 20 years in Prison !

  9. Does Tuccille do any research at all?

    “Ostensibly, U.K. authorities wanted him for Swedish sexual assault charges,”

    No, they wanted him for jumping bail. The only people who ever wanted him for questioning about a Swedish sexual assault were the Swedes.

    1. Considering how fast and loose you play with language in your prior comment, it’s amusing that you think you can condemn others for lack of precision where it’s not needed.

      1. Point out where I’m wrong or fuck off.

        1. I have several times. Go fuck off by yourself, you probably have plenty of practice and it will only take a few seconds.

  10. Reason still shilling for traitors and pimps. Lovely.

  11. “The Julian Assange Case Threatens All Journalists Who Scrutinize Government Conduct”

    Only if you ignore the details. The Pentagon Papers clearly gives journalists the freedom to publish anything given to them without consequence. But it doesn’t make journalists above the law generically. Suborning or assisting computer fraud and abuse and other crimes cannot be excused just because the perpetrator is a journalist.

    “Notably, the documents included footage of U.S. helicopters shooting people, including civilians, in Baghdad in 2007.”

    The Collateral Murder video was clearly a propaganda piece produced by taking video out of context. It certainly validly highlighted issues that need debate but the video itself is not an honest piece of journalism, not that such a thing exists anywhere in the world anymore.

    1. Thank you so much for your Brave stand against propaganda. If you’re correct, then history will reflect Julian Assange being right up there in the pantheon of evil propagandists.

    2. It’s kinda hard to take shooting obviously unarmed people “out of context”.

      It seems the propaganda is all yours.

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