In 2010, Donald Trump spoke about using the death penalty to punish the activities of WikiLeaks in off-the-cuff comments to a Fox News host. “It would be a disgrace,” Trump said. Around the same time, a Fox News analyst suggested “illegally” shooting Julian Assange, founder of an international transparency organization.
Years later, that cruel fantasy has become a legal reality. At a hearing on Tuesday (Eastern time) in federal court in the Northern Mariana Islands, Assange struck a plea deal with the Department of Justice on one count of Espionage. His punishment? How long he served: He was locked up in the Ecuadorian embassy in London for seven years, then fought extradition to the United States and spent 62 months in London's Belmarsh maximum security prison. He then returned to his native Australia.
“Mr. Assange has revealed true, important and newsworthy information,” Assange's lawyer, Barry Pollack, told reporters. “That included revealing that the United States had committed war crimes, and he has suffered greatly in his fight for freedom of speech, freedom of the press and to ensure that the American people and the international community have access to true, important and newsworthy information.” Pollack argued that Mr. Assange was “engaged in the work that journalists do every day and we are grateful that they did.”
To be sure, publishing newsworthy information is something journalists do every day. But the similarities between proper modern journalism and Mr. Assange's activities are limited, and so are the documents outlining the allegations in Mr. Assange's case. The documents do not specify what activities Mr. Assange undertook that would distance his activities from those of mainstream media organizations, a meaningful omission for journalists involved in sensitive reporting on national security. The Biden Department of Justice bears responsibility for this lacuna.
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“It leaves open the door for the government to make things even worse in the future,” said Lee Levin, a veteran media lawyer.
Background: The case concerns the WikiLeaks' publication in 2010 and 2011 of classified documents handed over to them by former Army intelligence analyst Chelsea Manning. The documents included 400,000 reports on the Iraq War and 75,000 reports on the Afghanistan War. This trove of documents spawned a flurry of scoops, notably the story of a US Apache helicopter attack that killed 11 Iraqis, including two Reuters staff members. Media organizations such as The New York Times, The Guardian, and Der Spiegel published stories derived from the WikiLeaks documents. The material inspired pro-democracy activists in Tunisia.
Concerns over press freedom led the Obama administration to hesitate to prosecute Assange. The Trump campaign had no such hesitation, indicting Assange on a list of charges under the Espionage Act that could carry up to 175 years in prison. The indictment painstakingly lists all the ways Assange allegedly tried to help Manning extract documents from government systems, painting a picture of the transparency activist as more than a passive recipient of classified information. For example, the indictment alleges that Assange agreed to help Manning crack password hashes for Department of Defense computers. A jumble of verbs gets the point across: “Defendants aided, abetted, counseled, induced, procured and knowingly caused the communication, delivery and transmission of documents to Assange who was not entitled to receive them,” the indictment reads.
But the indictment also takes aim at the mere act of disseminating information, a development of particular concern to press freedom advocates. These “pure publication” charges “are entirely unrelated to any joint action between Assange and Manning, and the theory behind them would allow for prosecution even if Assange had received the materials anonymously in the mail,” wrote Gabe Rotman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press.
The Trump administration ended its run after Assange completed extradition proceedings in a British court and the matter was referred to the Biden Justice Department. In April, Biden indicated his intention to consider a request by Australian Prime Minister Anthony Albanese to drop the charges against Assange. Levine said the move would have been consistent with the administration's stance on protecting the press, as Biden himself had promised that the Justice Department would not seize journalists' emails or phone records. But instead of dropping the charges, Levine said the Biden administration “gave it to us.” “This is troubling. … We could not have expected less from Trump, but we should have expected more from the Biden administration.”
Media organizations are paying close attention to the Assange case because they are trying to maintain an important legal distinction: Provisions of the Espionage Act that target national security leaks have been used to punish leakers but not to prosecute journalists who publish such information.
Assange's plea agreement documents raise questions about whether that distinction will stand for long. The four-page document, “Criminal Information,” alleges that Assange conspired with Manning to “receive and obtain” U.S. national security documents (including materials classified to the “Top Secret” level) and to “communicate” those materials “to persons not entitled to receive them.” The problem, according to Levin, is that the alleged conspiracy includes not just obtaining information but also disseminating it, which is exactly what news organizations do, and there is nothing criminal about such activity.
In a commentary and podcast about the agreement, national security journalist Marcy Wheeler noted that the plea deal omitted details about Assange's alleged help with the hacking. Even password cracking was omitted. Again, this kind of activity distinguishes Assange's work from that of a journalist. Had it been included in the document, news organizations would have felt reassured that they wouldn't get into legal trouble for workflows that didn't help with password cracking. “Aside from the hacking, certainly this is a terrible precedent that we should all be worried about,” Wheeler said on “Bloodcast.”
Another concern from the fine print is that the criminal information concludes that “In furtherance of the conspiracy and to effectuate its objectives, Assange and Manning engaged in both lawful and unlawful overt acts.” Levin said this language “suggests, at the very least, that he would be found guilty even if all he did was lawful acts, as journalists do every day.”
Let there be no ambiguity about the relative merits of the Trump and Biden administrations on this issue. Biden has been a strong advocate of press freedom (as noted above), while Trump has denied it when it suits him (which is to say, frequently). And the Trump administration's prosecution of Assange reflects his disdain for the First Amendment. There is no telling how much damage would have been done if Trump's Justice Department had sued Assange in a U.S. court.
The irony here? This plea deal could be used as cover for future Trump administration crackdowns on the press.
