WikiLeaks published everything. The Obama administration considered indicting Assange, but decided against it. In a 2010 congressional hearing on amending the Espionage Act, Representative John Conyers declared, “Our country was founded on the belief that speech is sacrosanct … And so whatever one thinks about this controversy, it is clear that prosecuting WikiLeaks would raise the most fundamental questions about freedom of speech about who is a journalist and about what the public can know about the actions of their own government.”
Michael Weiss: Julian Assange got what he deserved
Around the same time, Jack Goldsmith, who served in the Office of Legal Counsel during the Bush administration, advised that “trying to prosecute Assange under the Espionage Act would be a mistake. The prosecution could fail for any number of reasons (no legal violation, extradition impossible, First Amendment),” he wrote. “Trying but failing to put Assange in jail is worse than not trying at all. And succeeding will harm First Amendment press protections, make a martyr of Assange, and invite further chaotic Internet attacks. The best thing to do—I realize that this is politically impossible—would be to ignore Assange and fix the secrecy system so this does not happen again.”
A decade later, the Trump administration could have ignored Assange without abandoning efforts to protect state secrets. The legal scholar Geoffrey Stone has argued that “the solution is to reconcile the irreconcilable values of secrecy, on the one hand, and accountability, on the other, by guaranteeing both a strong authority of the government to prohibit leaks, and an expansive right of others to disseminate information to the public.” In Bartnicki v. Vopper, he noted, the Supreme Court ruled that it would be remarkable “to hold that an individual can constitutionally be punished merely for disseminating information because the government itself failed to deter conduct by a non-law abiding party.”
Yet a case that seeks to punish that very behavior is now upon us, needlessly threatening press freedoms. “Bringing charges against Assange for alleged hacking at least made sense,” Brian Barrett wrote at Wired. “Journalists would expect to be … prosecuted for similar. But the blast radius of an Espionage Act conviction against Assange would include every working national security journalist. Surely the Justice Department is aware of those implications. And that’s what makes its decision to go forward with the charges all the more unnerving.”
In fact, the administration’s move will detract from, rather than enhance, the very safety that state secrets are meant to secure.
“The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions,” Judge Murray Gurfein observed in the Pentagon Papers case. “A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form.”
Or as Justice Hugo Black put it when the same case came before the Supreme Court: “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” So it remains.