The Department of Justice showed its cards last week when it accidentally confirmed that the U.S. is planning to prosecute Wikileaks head Julian Assange, who has been sequestered in the Ecuadorian embassy in London since 2012.
What happens to Assange will be one of the biggest test cases for press freedoms in America ever. At stake? The ability of all journalists to inform the public of things the government wants to withhold.
But this has been largely ignored because Assange, once a darling of the progressive activist press, is now regarded as a hero-turned-zero, mostly because of Wikileaks’ role in publishing hacked emails that proved damaging to the Democratic Party and the Hillary Clinton campaign ahead of the 2016 elections.
The controversial Wikileaks founder always maintained that an unrelated sex assault investigation in Sweden (which has since been dropped) would lead to his detainment in the UK with an extradition to the U.S. That’s why he sought political asylum from Ecuador. Turns out he wasn’t just paranoid. A clerical error has revealed that the Justice Department did indeed file secret criminal charges against Assange, who is an Australian citizen. Court papers in what appears to be an unrelated case used cut-and-pasted language from documents prepared previously against Assange, all of which was revealed publicly to an unsuspecting reporter.
Though the new information makes clear that prosecution is planned if Assange can be delivered to American custody, no further details are available. Assange is under scrutiny at a minimum for unauthorized possession of classified material going back to at least 2010, when Wikileaks burst onto the international scene with evidence of American war crimes in Iraq and exposed years’ worth of classified State Department diplomatic cables.
More recently, Assange has been accused of trying to manipulate the 2016 U.S. presidential election with his release of emails from the Democratic National Committee server. The emails, some believe, came to Wikileaks via hackers working for the Russian government (Assange denies this) and are closely tied to the claims of collusion between the Trump campaign and Moscow otherwise known as “Russiagate.” Less publicized in the media but of critical concern inside the U.S. government is Wikileaks’ publication of the so-called Vault 7 materials, CIA hacking and malware tools, which revealed American technical intelligence skills and methods. Assange has hinted on at least one occasion that he may have “Vault 8” materials as yet unreleased.
When he is prosecuted, on trial with him will be a key question concerning the First Amendment: do journalists enjoy special protection against national security charges? Can they publish classified documents because there’s a 1A shield in place? Or can they only do so when the government allows it?
Under the current “rules,” if you get caught handing me a SECRET document, you go to jail. Edward Snowden, in dark exile in Moscow, and Chelsea Manning, who spent years in Leavenworth, sacrificed everything when they accessed and took classified information from their government jobs and passed it along to reporters. Meanwhile, those journalists, for The Intercept, the New York Times and the Washington Post, won accolades for breaking the stories they wrote based on the documents Snowden and Manning leaked. See how many stories today cite sources and reports, almost all of which are based on leaked classified information, stuff the government doesn’t want published yet accepts as part of the way journalism and the 1A work.
Yet despite this widespread practice, there is no law rendering journalists immune from the same national security charges that their sources go to jail for violating. There is no explicit protection against espionage charges written between the lines of the First Amendment. It’s all based on at best an unspoken agreement to not prosecute journalists for revealing classified data. And it’s coming to a head now with the government’s efforts to nail Julian Assange.
In 1971, Daniel Ellsberg leaked the Pentagon Papers, a classified history of the Vietnam War, to the New York Times. Reporters at the Times feared they would go to jail under the Espionage Act but published anyway, even as the Washington Post wimped out. The Nixon administration quickly found a court to order the Times to cease publication after initial excerpts were printed, the first time in American history a federal judge had censored a newspaper.
The Supreme Court then handed down New York Times Company v. United States, a victory for the First Amendment that allowed the Papers to be published. But the decision only affirmed that the government couldn’t censor the news in advance. The Court left the door open for the government to prosecute both the leakers (by dismissing Ellsberg’s leaker case on technical grounds and ignoring his public interest defense) and the journalists who publish them (by focusing narrowly on prior restraint). The justices avoided saying that the 1A offered a specific shield to journalists in matters of national security.
The Pentagon Papers case has governed everything about national security journalism since that day. It will continue to govern everything about national security journalism until the moment the U.S. government finally gets Assange into an American courtroom.
On the source side, the Obama administration was especially virulent in prosecuting leakers. Trump continued the policy by throwing the book at Reality Winner, who is in prison on a five year sentence for violating the Espionage Act. Both administrations made clear there was no difference between taking classified documents to inform the public and taking them with the intent to hand them over to the Chinese. On the other hand, the government (including to date Trump, despite all the noise about the press being the enemy) has chosen not to prosecute journalists for publishing what leakers hand over to them.
The closest the government came to throwing a journalist in jail over classified information was in 2014, when Obama’s attorney general Eric Holder permitted subpoenaing New York Times reporter James Risen regarding a former CIA employee. After a long legal tussle, the Supreme Court turned down Risen’s appeal, siding with the government. The Supreme Court refused to consider whether the First Amendment includes an unwritten “reporter’s privilege” in the free press clause. The Court instead upheld existing decisions that found that the Constitution does not give journalists special protections. The door was w-a-y open to throwing Risen in jail.
But instead of becoming the first president to jail a journalist for what he published, Obama punted. Happy with the decision affirming they could have prosecuted Risen, with no explanation prosecutors asked the U.S. District Court to simply leave Risen alone. Risen’s alleged source went to jail instead for leaking classified information. The unspoken rules stayed intact.
Unspoken rules are useful. They can be read to mean one thing when dealing with a chummy mainstream media that understands where the unspoken lines are even if they need the occasional brushback pitch like with Risen, and another when the desire is to deep-six a troublemaker like Wikileaks. Julian Assange poked the Deep State. He exposed the military as war criminals in Iraq (ironically in part for gunning down two Reuters journalists) and the State Department as hypocrites. He laid bare the CIA’s global hacking games in the Vault 7 disclosures, and showed everyone that the Democratic primaries were rigged. None of those stories would have come to light through the mainstream media alone. And if Assange does know something about Russiagate (did he meet with Manafort?!?), what better place to silence him than a SuperMax?
The government is likely to cite the clear precedent from the Obama years that it can damn well prosecute journalists if it wants to, while keeping the establishment media happy by offering enough thin exceptions to appear to prevent Assange’s crucifixion from setting broad precedent. The emerging narrative isn’t hard to make out: he wasn’t covered by the 1A outside the U.S. and his sources were Russian hackers seeking to harm the U.S. instead of misguided chaps like Ellsberg and Manning. Assange had no national interest in mind, no sincere desire to inform the public. He, a foreigner no less, wanted to influence the 2016 election, maybe in collusion!
Shamefully, those stuck in journalism’s cheap seats are unlikely to side with Assange, even though they wrote stories based on what he published on Wikileaks. They’ll drift along with the government’s nod and wink that this is all a one-off against Julian, and those who play by the government’s unspoken rules are still safe.
They’ll self-righteously proclaim that Assange going to jail is sad but unfortunately necessary, claiming he just took things too far. The Daily Beast’s take on all this, for example, is headlined in TMZ-esque tones: “Unkempt, Heavily Bearded Julian Assange No Longer Has Embassy Cat For Company.”
They will miss the big picture: where previous cases avoided delineating the precise balancing point between the government’s need to protect information, the right to expose information, and the media’s right to publish it, an Assange prosecution will create new precedents, weapons for clever future prosecutors. It will be one of those turning points journalists working under future press restrictions will cite when remembering the good old days.
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. Follow him on Twitter @WeMeantWell.