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You Don’t Have to Love Assange to Fear His Prosecution

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 [1]) 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 [2] 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.

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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.

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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 [3] 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 [4], 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 [5] 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 [6] that found that the Constitution does not [7] 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 [8] 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 [9]) and the State Department as hypocrites [10]. He laid bare the CIA’s global hacking games in the Vault 7 [11] disclosures, and showed everyone that the Democratic primaries were rigged [12]. None of those stories would have come to light through the mainstream media alone. And if Assange does know something about Russiagate [13] (did he meet with Manafort [14]?!?), 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 [15]!

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 [16] 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 [17] the precise balancing [18] 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 [19]: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War [20]: A Novel of WWII Japan. Follow him on Twitter @WeMeantWell.

36 Comments (Open | Close)

36 Comments To "You Don’t Have to Love Assange to Fear His Prosecution"

#1 Comment By Dave On November 29, 2018 @ 11:10 pm

I was under the impression that Assange had turned himself in after Obama released Manning as he said he would do. I guess I was wrong.

#2 Comment By Sam On November 30, 2018 @ 12:31 am

The DOJ has been trying to find a way to prosecute Assange for years. The problem for them is that they need to find charges/grounds that shield mainstream news sources (NYT etc) that frequently publish classified material. Hence they’ve been looking for evidence that Assange went a lot further than merely publishing material, such as actively giving sources assistance with hacking or otherwise exfiltrating material. All indications are that they’ve failed to thread the needle thus far and are instead just trying to crack the man.

#3 Comment By spite On November 30, 2018 @ 4:57 am

While I agree with what has been written here, the author is clearly unaware just how extreme the left wing has become. They do not support free speech, they are absolutely happy with the function the mass media being speaking power to truth (i.e. it being run by the mega powerful), they absolutely believe that the job of journalism is to spin positive narratives for the Democrat party.

These people are absolute fanatics, they cannot be reasoned with, they want blood and they don’t give a damn about things such as hyprocisy and fair play.

#4 Comment By Jhawk On November 30, 2018 @ 8:13 am

Mr. Van Buren raises an important issue. But the evidence increasingly points to Assange having made himself a willing tool of Russian Intelligence. There’s a huge difference between pursuing the public’s right to know and and acting as the clandestine agent of an adversarial foreign power. If the latter is true Assange has ‘crossed the line’ and shouldn’t be defended despite his previous good works.

#5 Comment By Stephen J. On November 30, 2018 @ 8:27 am

I believe “Assange” is a prisoner of the ruling spying criminals that hate being exposed, they could be called:

“They”

They say they are going to keep the people safe
By spying on them and all the human race
They say they have a “responsibility to protect”
So they bomb numerous countries until they are wrecked

They call this murder and mayhem, “bringing democracy”
But thinking people know, it is all hypocrisy
They order the serfs into obeying, “their commands”
Then the brainwashed serfs kill and bomb in many lands

They reap massive profits from destruction and killing
Victims are everywhere, some are still living
They never fight or dirty their hands
They are hiding in their bunkers; these ruling brigands

They kill and maim children using drones
They even reduce to rubble innocent peoples homes
They are the assassins in comfortable armchairs
They go unpunished: Is that really fair?

They even finance and train both sides in wars
They are the earth’s evil, warmongering whores
They profit from all this bloody carnage
They even get “awards” for doing all this hellish damage

They can be seen gathered on the “World Stage”
Dangerous buffoons who should be caged
They are the world’s so-called “rulers”
Dictators, despots and other controllers

They hide from all the violence they started
They caused the deaths of many of the departed
They should be on trial for many war crimes
They should be in prison cells doing hard time

They have propaganda pushers to spread B.S. and lies
They have marketing “experts,” and truth dies
They fool the public and use their tax dollars
They have turned democracy into self serving squalor

They are known as “honourable” and very much alive
Some have even been known to get a Nobel Peace Prize
This is a story of war criminals rule
They are the planets death dealing ghouls…

[more info at link below]

[21]

See also “The Evil of Empires”
[22]

#6 Comment By Egypt Steve On November 30, 2018 @ 9:18 am

He’s a spy, a saboteur and a rapist. I’m all in for the free and adversarial press but when a reporter is an actual criminal, lock him up.

#7 Comment By Joe the Plutocrat On November 30, 2018 @ 9:18 am

and one need not hate Donald Trump to welcome his “prosecution”. I use quotation marks, as perhaps investigation is a better word. sadly, this is more of the same deep is this the state or patriotism? over/under nonsense, to which I would answer’ it is neither. oh, and in keeping with the sports (gambling) metaphor, glad to see the author cited “Obama” (punted) to get players into the betting parlor. I’ve asked this before (rhetorically) the author’s mea culpa aside, when he “helped lose” the game, was he a patriot or deep state? of course, the entire “what if” (wager) presumes “freedom” is a right, as opposed to as circumstantial/situational “gift” from the oligarchs.

#8 Comment By PAX On November 30, 2018 @ 10:34 am

A timely article. Main Stream Media (MSM) are the biggest tool of passive compliance and propagandizing by a relatively docile population. I open the CNN URL and it is like reading the neocon version of 1960’s Pravda. The Australian government should be doing more to get Julian Assange out of his current predicament. The 4th Estate is withering on the vine to comply with lobby dictates.The Founders had a reason to mention this entity in the Constitution.

#9 Comment By Fran Macadam On November 30, 2018 @ 10:37 am

Donald Trump used to love Julian Assange’s WikiLeaks media outlet. Said so over a hundred times. Sad!

#10 Comment By Sid Finster On November 30, 2018 @ 11:10 am

To be fair to the MSM, they know that they are safe from persecution, as they never print a word that the establishment does not want to see published.

#11 Comment By Michael Schnebly On November 30, 2018 @ 2:55 pm

I don’t think that it’s the content of his email release that got Assange in hot water. It was his calculated timing of the release to cause the most harm to a candidate’s run for President.

#12 Comment By Collin On November 30, 2018 @ 3:21 pm

Conservative are fine with people dealing with STOLEN E-mails.

#13 Comment By MM On November 30, 2018 @ 4:22 pm

Collin: “Conservatives are fine with people dealing with STOLEN E-mails.”

Clever talking point, but factually wrong.

Conservatives, at least those in power until 2008, have hated Assange going back to the Bush years:

[23]

The irony is, anybody on the Left who thought that the Trump administration would be a radical break from the Bush and Obama years are sadly mistaken. Career DOJ officials still want to nail Wikileaks, no matter who is in the White House.

Hell, Hillary wanted to drone strike Assange, no joke. And Trump’s the only Evil Dictator who hates the Press, huh?

#14 Comment By Clyde Schechter On November 30, 2018 @ 4:26 pm

In a just world, Snowden, Manning, and Winner would get the Nobel peace prize. Trump, Obama, Bush2 and Clinton would all be in the dock at the Hague.

Where Assange fits in is unclear. If his role is solely that have having published the materials that were passed to him by others, then he should, at least, be left alone and perhaps share in the Nobel peace prize. But if he conspired to steal the information, that is a different matter, and an espionage prosecution would be sensible.

#15 Comment By Fran Macadam On November 30, 2018 @ 4:50 pm

Now here are some purveyors of Fake News, all evidence-free assertions proven totally false:

“But the evidence increasingly points to Assange having made himself a willing tool of Russian Intelligence. There’s a huge difference between pursuing the public’s right to know and and acting as the clandestine agent of an adversarial foreign power.”

“He’s a spy, a saboteur and a rapist. I’m all in for the free and adversarial press but when a reporter is an actual criminal, lock him up.”

#16 Comment By Fran Macadam On November 30, 2018 @ 4:54 pm

“I don’t think that it’s the content of his email release that got Assange in hot water. It was his calculated timing of the release to cause the most harm to a candidate’s run for President.”

Right, journalists should always withhold true information about a politician and the political processes they engage in from the public, so that the voters will remain deceived. Well, I guess, the politicians YOU favor.

#17 Comment By polistra On November 30, 2018 @ 5:47 pm

The press does not have to be afraid. The press is Deepstate. The Department of “Justice” is Deepstate. They are the same machine, working in beautiful synchrony to obliterate civilization.

#18 Comment By ked_x On November 30, 2018 @ 5:54 pm

Julian Assange was trouble when he showed up on the scene in 2012 and he is trouble now. He’s not a journalist, he is a saboteur. Journalism is about seeking out and reporting facts so that citizens can make informed decisions about their governance. Assange is about exploiting vulnerabilities to crush societies for his own twisted benefit. He should be defended the same as any low life, but journalism need not fear suffering the same fate as him.

#19 Comment By Fran Macadam On November 30, 2018 @ 7:02 pm

“Conservative are fine with people dealing with STOLEN E-mails.”

Not sure what your point is, but NSA steals everyone’s emails every day.

Is only the government allowed to know what they are doing to us?

If someone finds out that there’s wrongdoing going on, and tells the public or the authorities, there’s no defense in saying they weren’t supposed to know about it.

#20 Comment By TomG On November 30, 2018 @ 9:23 pm

Democrats, Republicans, security agencies, yea even the courts will be in synch to bring Assange down. And no, our ‘democracy’ will not be better for it. I appreciate Mr. Van Buren calling this out to TAC readers.

#21 Comment By John Poole On November 30, 2018 @ 9:31 pm

Maybe Hillary Clinton will run in 2020 and possibly win. Her first act of magnanimity might be a pardon for Assange. OK, I’m just trying to engender a few chuckles in these dark times.

#22 Comment By Tom S. On November 30, 2018 @ 10:00 pm

Assange is not a journalist. He is a middle man and/or a source. He is also a Russian intelligence asset.

#23 Comment By Joe F On December 1, 2018 @ 1:14 am

Whatever veneer of nobility he once had has been sacrificed by his willingness to become an agent of the GRU. Full stop, he long ago abandoned any sense of truth or morality.

#24 Comment By SteveK9 On December 1, 2018 @ 9:03 am

Peter the ‘press’ is obviously not worried about losing their ability to inform the public of the truth, because they no longer view that as their function. They are tools of propaganda for the oligarchs that rule America. There are a few people like yourself, who want to inform the public, but you represent a (shrinking) minority.

#25 Comment By Bill Lawrence On December 1, 2018 @ 10:05 am

It’s funny how Ds claim Assange helped seal Hillary’s fate by releasing the emails without recognizing the reality that the emails needed to exist in order to be released.

Why would you vote for someone who admitted to doing the things described?

BTW, should “John Doe” the leaker of the Panama Papers be tracked down?

#26 Comment By Sid Finster On December 1, 2018 @ 10:13 am

@Michael Schnebly: please tell us which law is broken by timing the release of news in a way as to embarrass establishment politicians.

@Egypt Steve: you make sweeping but vague accusations. Again, please be specific. While you’re at it, note that lurid accusations are routinely used to discredit threats to the establishment. Witness the recent case of Dominique Strauss-Kahn.

@Collin: surely you said the same about the NYT when they published The Pentagon Papers, right? After all, it is important that powerful people be allowed to lie to us with impunity.

#27 Comment By Anarcissie On December 1, 2018 @ 12:56 pm

The arrest and trial of Mr. Assange would be a political and media circus unparalleled in recent times, with no certain outcome, so my guess is that his enemies would Putinesquely opt for assassination should he be gotten outside the embassy walls.

#28 Comment By Chef On December 1, 2018 @ 4:08 pm

This conundrum is partially the result of picking and choosing the enforcement of laws based on political affiliation or beliefs.
We are not a republic now.
The individual has been declared an enemy of GovCo, the EstGOP and the Democrat People’s Parties.

#29 Comment By georgina davenport On December 1, 2018 @ 8:31 pm

This is what a reader named “spite” said:

“While I agree with what has been written here, the author is clearly unaware just how extreme the left wing has become. They do not support free speech, they are absolutely happy with the function the mass media being speaking power to truth (i.e. it being run by the mega powerful), they absolutely believe that the job of journalism is to spin positive narratives for the Democrat party.

These people are absolute fanatics, they cannot be reasoned with, they want blood and they don’t give a damn about things such as hyprocisy and fair play.”

Just to show how polarized our politics and people have become, someone on the Left can write the exact same thing by simply switching out the words “left” to “right” and “Democrat” to “Republican.”

#30 Comment By georgina davenport On December 1, 2018 @ 8:35 pm

Asange is not a journalist. What is the journalistic purposes of the governmental information and private information they have published? Information they obtained legally?

#31 Comment By EliteCommInc. On December 2, 2018 @ 9:30 am

The issue with Mr Assange is a tough matter to wrestle with for me.

[24]

But no one needed a democratic email dump to know why voting for Sec Clinton should have been high bar that required flights of fancy to overcome.

Apparently, millions of my fellow citizens have flying carpets.

___________________________

The turn here is whether Mr. Assange actually hacked said information or was it handed to him.

#32 Comment By Fran Macadam On December 2, 2018 @ 10:19 am

Isn’t it interesting how our country now has jurisdiction over everyone else in the world, and can arrest and try anyone in the world for disobeying our laws in their own countries?

Anyone defying this or pointing it out, is said to be unlawfully “interfering,” because we the people might unfairly get wind of what our elites are doing to us, and to others in our name.

#33 Comment By S On December 2, 2018 @ 11:19 am

Not sure what crime Assange has committed. The US has welcomed with open arms its own spies from other countries and defectors (traitors to them). Assange has shown US war crimes and other details which the establishment doesn’t want released. The people of the US should be grateful to this Australian citizen for helping protect their liberties.

#34 Comment By MM On December 2, 2018 @ 1:27 pm

JonF: “Whatever veneer of nobility he once had has been sacrificed by his willingness to become an agent of the GRU.”

Leaving aside your thinly-veiled attack on freedom of the press, would you mind qualifying that accusation with some direct evidence, please?

Thanks!

#35 Comment By One Guy On December 4, 2018 @ 4:55 pm

Trump says Roger Stone is guilty.

Trump: “Only guilty people plead the Fifth.”
Stone: “I plead the Fifth.”

#36 Comment By MM On December 5, 2018 @ 7:13 pm

One Guy: “Trump says Roger Stone is guilty.”

Guilty of what?

If it’s lying to federal investigators, too bad Stone wasn’t on Hillary’s team. They got immunity for doing the very same thing.