May 24, 2019 – Last month, shortly after police dragged Julian Assange, the founder of WikiLeaks, out of Ecuador’s embassy in London, the United States said it would seek his extradition. Journalists and press-freedom watchers—many of whom dislike Assange—waited anxiously for details of the charges; the Justice Department, they feared, was prepared to indict Assange for practices relevant to journalism, possibly under the Espionage Act. Later that day, when the charge was made public, some breathed a sigh of relief: Assange was to face a single count under the Computer Fraud and Abuse Act, for helping Chelsea Manning crack a password, which is not something reporters typically do. Many press advocates, however, warned that the indictment contained some gray areas, and that further charges would likely follow. A separate, recently unsealed affidavit in Assange’s case added cause for concern. It discussed publishing, and borrowed language from the Espionage Act.
Yesterday, the situation took a grave turn. US authorities outlined 18 additional charges against Assange, 17 of which fall under the Espionage Act. All of the charges arose from sharing classified intelligence documents and diplomatic cables that Manning passed to WikiLeaks for publication. Assange faces a maximum sentence of 175 years. Briefing reporters, Justice Department officials insisted that they were not trying to criminalize journalism—most of the counts, they stressed, result from how Assange obtained information; those related to publication are narrow in scope, concerning only a handful of documents that identified US intelligence sources in dangerous places. (Many journalists consider Assange’s publication of such details to have been grossly unethical.) “Julian Assange is no journalist,” John Demers, head of the Justice Department’s National Security Division, said.
The government should not get to decide who is and isn’t a journalist. And drawing a distinction is beside the point. “The question isn’t whether Assange is a journalist, but whether the government’s legal theory threatens freedom of the press,” Carrie DeCell, a staff attorney at the Knight First Amendment Institute at Columbia University, wrote on Twitter. “It does. The government argues that Assange violated the Espionage Act by soliciting, obtaining, and then publishing classified information. That’s exactly what good national security and investigative journalists do every day.” The solicitation charges are based on open calls for information that WikiLeaks posted on its website, a practice common to many news organizations. The Reporters Committee for Freedom of the Press said that the charges pose “a dire threat”; the Freedom of the Press Foundation called them “terrifying.” Ted Boutros, a prominent media lawyer, said that the US government wants to use Assange’s bad name to cover for a dangerous precedent. “There’s a real element of picking the weakest of the herd, or the most unpopular figure, to try to blunt the outcry,” Boutros told The New York Times.
Troubling legal clampdowns on press freedom have been on the rise since the latter days of the George W. Bush administration. Until now, however, the Justice Department has mostly used the Espionage Act to prosecute staffers who have leaked information to journalists. The charges against Assange represent a sharp departure, since this is the first time a publisher has been indicted under the law. (The Obama administration considered taking this step against Assange, but ultimately decided against it.)
It’s far from clear whether the charges against Assange will stand up in court. It’s also unclear whether Assange will ever even face an American judge: Sweden is seeking to extradite him as part of a recently reopened rape investigation, and the latest heavy-handed US charges might not sit well with British courts, which have the power to decide where Assange goes next. With yesterday’s indictment, however, this story is no longer really about Assange. It’s the clearest example yet that in the US, the practice of journalism is at risk.
Below, more on the government’s legal threats to press freedom:
- The law as a sword: Manning, who is in jail for refusing to testify about Assange before a grand jury, released a statement following yesterday’s charges accepting “full and sole responsibility” for disclosing information to WikiLeaks. “This administration describes the press as the opposition party and an enemy of the people,” she said. “Today, they use the law as a sword, and have shown their willingness to bring the full power of the state against the very institution intended to shield us from such excesses.”
- The Espionage Act as a chainsaw: Two weeks ago, the Justice Department charged Daniel Hale, a former National Security Agency analyst, under the Espionage Act, alleging that he leaked classified information to a journalist. The recipient was not named, but is widely believed to have been Jeremy Scahill, of The Intercept. This week, Scahill posted a 10-minute video on Trump’s war on leaks. The administration is “using the Espionage Act like a chainsaw,” he said.
- The tip of the iceberg: In 2013, the Obama administration subpoenaed phone records belonging to the Associated Press and several of its reporters as part of a leak investigation. The move was widely condemned, but according to a new report obtained under the Freedom of Information Act, it wasn’t the end of the story: the Justice Department also considered subpoenaing the Times, The Washington Post, and ABC News. Ramya Krishnan and Trevor Timm round up the findings for CJR.