Julian Assange, the Australian national who founded WikiLeaks, was indicted Thursday for soliciting classified information from an American whistle-blower in 2010 and publishing sensitive military files as well as State Department cables.
Unlike his source, then–Army Private Chelsea Manning, who pledged to protect state secrets to get a security clearance, Assange had no obligation to the U.S. government, and appears to be in legal jeopardy for some actions that are virtually indistinguishable from journalism.
That Assange is not himself a journalist is irrelevant.
The charges set a precedent “that can be used to target all news organizations that hold the government accountable by publishing its secrets,” the ACLU warns, adding, “If the US can prosecute a foreign publisher for violating our secrecy laws, there’s nothing preventing China, or Russia, from doing the same.” The civil-liberties organization says the Assange case marks the first time in American history that criminal charges are being brought “against a publisher for the publication of truthful information” under the Espionage Act of 1917.
That law “draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national-defense information that by that point is already in the public domain,” the law professor Stephen Vladeck has noted. And that is only one of the reasons it ranks as one of the most flagrantly authoritarian laws in U.S. history.
Our First Amendment declares, “Congress shall make no law … abridging the freedom of speech, or of the press.” But in 1917, Congress made just such a law, the Espionage Act, in part to abridge the freedom to speak out against World War I.
It did so at the urging of President Woodrow Wilson, who resegregated the federal government, screened The Birth of a Nation at the White House, and told Congress in his 1915 State of the Union address that American citizens “born under other flags but welcomed under our generous naturalization laws” were pouring “the poison of disloyalty into the very arteries of our national life,” necessitating a new law “by which we may be purged of their corrupt distempers.”
In Wilson’s telling, “such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once.” Once armed with the Espionage Act of 1917, the Wilson administration targeted two political activists, Charles Schenck and Elizabeth Baer, who mailed anti-war flyers to men facing conscription.
The flyers urged readers to peacefully refuse to comply with the draft by citing language in the Thirteenth Amendment that prohibits “involuntary servitude.” For that speech, the two were convicted by a jury of their peers.
They appealed to the Supreme Court, invoking their First Amendment rights. But war is the health of the state and the death of civil liberties; the Supreme Court chose to narrow rather than safeguard the First Amendment’s protections.
We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights.
But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity and degree.
When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.
America now seems permanently at war, with no immediate prospect that the hostilities that began in 2001, before the birth of some of today’s troops, will end. Manning’s leaks revealed serious wrongdoing in the War on Terror while also exposing legitimate secrets.
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.”
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.