It was treason.
The conservative commentator Ann Coulter said The New York Times’ reporters had done something that “could have gotten them executed.” Bill Kristol, now known as a prominent anti–Donald Trump Republican, said the Justice Department “had an obligation to consider prosecution.” The radio host Rush Limbaugh declared, “I think 80 percent of their subscribers have to be jihadists. If you look at The New York Times and the kind of stories they’re leaking and running and the information they’re getting, it’s clear that they’re trying to help the terrorists. They’re trying to help the jihadists.”
In 2006, right-wing-media figures were apoplectic over the exposure by The New York Times of a surveillance program for tracking financial transactions without warrants or subpoenas, including those of American citizens. Like the reporting that exposed the Bush administration’s warrantless-wiretapping program, its network of secret torture chambers around the world, and its use of torture on terrorism suspects, it was another example of a news story that utilized leaks of classified information to inform the American public about what its government was doing in its name.
The Bush administration did not seek to prosecute the Times over its publication of that information, despite the fact that it had embarrassed the government and exposed things it had wanted to keep secret. But if the WikiLeaks founder Julian Assange is successfully convicted under the Espionage Act for publishing information leaked by the former Army intelligence analyst Chelsea Manning, and if that conviction is upheld, then the Trump administration will have successfully laid the legal groundwork for prosecuting journalists. On Thursday, the Justice Department announced that it was charging Assange with violations of the Espionage Act for, among other things, seeking to “encourage those with access to protected information, including classified information,” to offer it for “public disclosure.” There is no sense in which that action, if criminalized, does not also apply to media outlets such as The New York Times.
The indictment alleges that Assange helped Manning decrypt a password for an Army computer to obtain classified information. But that is not the only act it is seeking to prosecute. The indictment explicitly states that Assange’s crimes include efforts to “obtain documents, writings, and notes connected with the national defense, for the purpose of obtaining information respecting the national defense” and to “willfully communicate documents relating to the national defense.” This describes, in the most basic sense, what national-security journalists do every day to ensure that the public is informed about things the government wishes to keep secret from it.
Nor does it matter whether Assange is a journalist. The First Amendment restricts the authority of the state to infringe on freedom of speech; allowing the government to determine who is and who is not a journalist is just such an infringement. Moreover, the current president of the United States attacks every journalistic outlet that does not treat him with fawning subservience as “fake news.” The line that some observers may think they are drawing between Assange and The New York Times is not one the government is obliged to draw. And as the cries of “treason” during the Bush administration show, Trump’s position on press freedom is less a divergence from conservative orthodoxy than an escalation of it. If you value democracy, you simply do not want this administration, or any administration, deciding which people are journalists and which are criminals on the basis of whether what they publish makes government officials angry.
Consider the number of stories that might be considered federal crimes under the standard set in the Assange indictment: the stories showing Trump’s former national security adviser lied about his communications with the Russian government about retaliatory sanctions for its election interference? That story about Trump’s adviser and son-in-law, Jared Kushner, seeking to use the Russian embassy to communicate with the Kremlin? The president exposing classified information to Russian officials in the Oval Office while bragging about his firing of the FBI director over the investigation into his campaign? The reports illustrating the origins of the Russia investigation in a Trump adviser’s boasts to a foreign intelligence official? Details about the Trump administration’s internal debate over going to war with Iran? All could have resulted, under the standard put forth in the Assange indictment, in the journalists who reported them being sent to prison.
That is a profoundly abridged list, and one that does not even cover the major national-security stories of past administrations—the Bush administration’s manipulation of intelligence to go to war with Iraq, the Obama administration’s escalation of the United States’ targeted-killing program. Prosecuting those who publish classified information would not only criminalize journalism; it would deprive the public of essential information it needs to make informed choices in a democracy. Such prosecutions would not end the leaking of classified information—far from it. Rather, they would simply give the government a monopoly on such information, allowing officials to selectively leak classified information to manipulate the public, with no check on their ability to do so.
The groundwork for this assault on freedom of speech was laid by prior presidents. The Espionage Act, a World War I–era law signed by President Woodrow Wilson, is a plainly unconstitutional statute that, at the time, was mainly used to repress leftist criticism of the U.S. government. Both George W. Bush and Barack Obama prosecuted leakers for speaking to the press; the Obama administration prosecuted more such cases than all prior administrations put together. But prosecuting the publishing of classified information, rather than the leaking of it, as a criminal act is a dangerous new escalation that threatens the basic freedoms necessary for democracy to function.
Assange is loathed by liberals, understandably so. During the 2016 election, his organization, WikiLeaks, published emails from the Democratic National Committee and from Hillary Clinton’s campaign chair, John Podesta, that had been hacked by the Russian government in an effort to boost Trump.
Picking unsympathetic defendants to establish bad precedents is a time-worn legal strategy. Liberals do not need to jettison their hatred of Assange for helping the Russian government sway an American election. But if the Trump administration prevails, it will establish a precedent that will allow Trump to prosecute journalists who have been diligently exposing his corruption and incompetence.
Assange’s actions helped elect an authoritarian president who seeks to use state force to destroy his political foes. Assange’s prosecution may allow that same president to use the vast power of the federal government to crush those he has dubbed the “enemy of the people.” If liberals allow their fear and anger over the 2016 election to blind them to this danger, they will be complicit in that outcome.
This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.
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