WikiLeaks founder Julian Assange’s plea deal with prosecutors is detrimental to U.S. press freedom. But the outcome could also be worse.
The deal, finalized in a court in a remote U.S. Commonwealth in the western Pacific on Wednesday, clears the way for him to regain freedom after more than five years in British custody, much of which he spent fighting extradition to the United States. In exchange, he pleaded guilty to one count of violating the Espionage Act.
The result is an ambiguous ending to a legal saga that jeopardized journalists’ ability to report military, intelligence or diplomatic information that officials consider classified. The First Amendment states that the function of a free press is to reveal information beyond that approved for publication by those in authority, a fundamental principle of American self-government.
The agreement means that, for the first time in U.S. history, it will be illegal to collect and publish information the government considers secret. This new precedent will send a threatening message to national security journalists, who may shudder at the motivations for their work as they face greater risk of prosecution.
But its range of influence is also limited and it cannot avoid larger threats. Because Assange agreed to the deal, he will not challenge the legality of the Espionage Act’s application to his actions. The outcome thus avoids the risk that the case could lead to an eventual Supreme Court ruling that upholds prosecutors’ narrow interpretation of First Amendment press freedom.
“He’s basically a confession of what journalists have been doing and need to do,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “It will cast a pall on press freedom. , but not unlike the shadow cast by judicial opinions that such activity is a crime and not protected by the First Amendment.”
In short, he added, from a press freedom perspective, the results are complex and cannot be seen as “all bad and not all good”.
The case’s First Amendment implications are often overshadowed by the heated debate over whether Assange counts as a journalist and residual anger among Democrats over his release of emails stolen from Democrats during the 2016 presidential election.
Assange chose to release the information, obtained by Russian hackers, with the goal of hurting Democratic candidate Hillary Clinton and disrupting the party’s national convention, and then steadily shared the information in the final stretch of the campaign.
But when it comes to press freedom, what matters is not who counts as a journalist, but whether journalistic-style activity – whether conducted by journalists or anyone else – can be considered a crime. The charges against Assange are not because Moscow secretly helped Donald J. Trump win the 2016 election.
Instead, the accusations focus on earlier publications that brought him global notoriety and made him a hero to the anti-war left: a U.S. helicopter shooting in Baghdad, including a Reuters photographer videos of those inside; extensive military incident logs documenting the wars in Afghanistan and Iraq; 250,000 diplomatic cables from U.S. embassies around the world; and files on Guantánamo detainees.
The criminal information Assange admitted centered on one count of conspiring to violate the Espionage Act. Court documents allege that Army intelligence analyst Chelsea Manning and Assange agreed that even though he did not have a security clearance, she would send him national security documents, which he would then “communicate” to others who were also subject to the Threatening people.
It was once extremely rare to charge government officials with security clearances with leaking national security information for publishing news, but such prosecutions have become commonplace in the 21st century. During the Bush administration, the Justice Department began prosecuting leak cases on a regular basis, a pattern that has continued through successive administrations.
Despite being charged in the military justice system, Ms Manning was part of this wave, pleading guilty at a court martial in 2013 and being sentenced to 35 years in prison. In January 2017, President Barack Obama commuted most of her sentence; in total, she was detained for about seven years from the date of her arrest.
But successfully prosecuting a non-government official for publishing national security information of public interest obtained while working with a source is different. No one has been charged under the Espionage Act for journalistic conduct, in part because it has long been widely believed that applying the law to such conduct is unconstitutional.
The charges against Assange therefore cross a line. It suggests that the crackdown on leakers in the 21st century may extend to criminalizing those who reveal important events after September 17th. December 11, 2001 Abuse such as warrantless wiretapping and torture, as well as daily news reports on military, intelligence or foreign affairs, help people better understand the world.
The Justice Department under President George W. Bush took the first step in that direction after a Pentagon official leaked classified intelligence about Iran to two lobbyists for the pro-Israel group AIPAC. In addition to charging the official who pleaded guilty, prosecutors in 2005 pursued lobbyists — even though they were not officials and did not have security clearances — for further spreading the secrets to reporters.
But a judge issued a skeptical ruling that weakened the case, and the Obama-era department dropped the case in 2009.
The next year, after Assange began publishing Ms. Manning’s leaks, Justice Department officials weighed whether he could be charged with some kind of crime. But they balked at the prospect of setting a precedent that could be used against mainstream news outlets like The New York Times, which sometimes collect and publish information the government considers secret.
However, the Justice Department under the Trump administration continued to press charges against Assange, secretly filing a criminal complaint in late 2017 and obtaining a sealed grand jury indictment months later. The move ensures the government can seek his arrest and extradition if he leaves the Ecuadorian embassy in London, where he has been hiding for years.
The original indictment largely sidestepped press freedom issues by laying out narrow charges against Assange, accusing him of involvement in a hacking-related conspiracy. But in 2019, the Justice Department added Espionage Act charges in hopes of turning the case into a major First Amendment test.
In 2021, the Biden administration continued its efforts to extradite Assange to face a criminal trial on all of these charges. The Biden-era department also negotiated a plea deal to resolve the case, dropping hacking-related charges but winning an Espionage Act conviction.
While this case is unlikely to give the Supreme Court an opportunity to curtail First Amendment press freedoms, the government is still using Assange as an example in a way that may well have resulted in some important stories going unreported by some national security journalists. prosecution.
If the free flow of newsworthy information to the public is indeed inhibited in the future, thereby harming America’s democratic institutions, officials from both administrations will share the responsibility.
