In 2006, Julian Assange founded WikiLeaks in order to promote “information transparency,” which has consisted of releasing hundreds of thousands of hacked documents. He has waged an ongoing war against privacy and confidentiality, with notable success.
More than a year ago, a federal grand jury in Virginia secretly indicted Assange for entering into a “password-cracking” agreement with Army intelligence analyst Chelsea Manning, who had “top secret” security clearance. The result was that WikiLeaks obtained and released hundreds of thousands of classified documents dealing with the wars in Afghanistan and Iraq. The agreement, according to the indictment, constituted a criminal conspiracy in violation of the federal Computer Fraud and Abuse Act.
On May 23, just two days ago, Assange’s problems took a turn for the worse. The Justice Department announced an 18-count indictment under the Espionage Act, charging that Assange “risked serious harm” to the United States by receiving and publishing classified information. (Neither indictment has anything to do with the 2016 presidential campaign, but we know from the Mueller Report that private and official Russian entities, working in close concert with Assange, tried to undermine the 2016 election. A perfect match – pro-Trump Russian hackers and Clinton-hater Julian Assange.)
These are not Assange’s only legal problem. In 2010, the year of the alleged agreement with Manning, Sweden accused him of sexual assault. Ecuador provided political asylum in its Embassy in the Knightsbridge section of London, but Assange’s luck ran out on April 11, 2019, when Ecuador evicted him for “discourteous and aggressive behavior.” London police promptly arrested him, the United States government then released the initial indictment, and Sweden re-activated its investigation, this time for rape.
Whether Sweden or the United States gets him first is up to the British Home Secretary, who must weigh various factors, including the seriousness of the charges. Popular sentiment in Great Britain has favored Sweden, perhaps because many people consider rape more serious than making truthful information public, however it was obtained. This week’s expanded indictment escalates the extradition stakes dramatically.
Until recently, legal commentators speculated about a possible “bait and switch” strategy designed to get Assange out of England with a narrow charge under the computer fraud law and then adding more charges. Indictment number two makes such speculation moot, but the controversy is just beginning.
Under indictment number one, which dealt with hacking, not publishing, it was far from clear that Assange could claim the First Amendment as a shield against the prosecutorial sword. Now that the ground has shifted, the question is whether Assange the “publisher” is a member of “the press,” who can rely on New York Times v. United States, the “Pentagon Papers” case decided in 1971. There, over the government’s objection that secrecy of government documents was essential, the Supreme Court upheld the First Amendment right of the Times to publish classified information.
James Madison once said, “Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press.” As the author of the First Amendment, he would be surprised to hear that the press is the “enemy of the people.”
Assange, who is regularly described as “rude,” “pompous,” and “unhygienic,” may be one of the world’s most unpopular people, but he has his supporters. Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times, described the first Assange indictment as “a clear attempt to rescind the freedom of the press.” Alan Rusbridger, former editor of “The Guardian,” newspaper knows firsthand that journalists encourage sources to hand over confidential documents. He wrote an article entitled “Partnering with Assange was Unpleasant. But Work Like his is Crucial.” And James Goodale, general counsel for the New York Times when it published the Pentagon Papers, recently wrote in Harper’s Magazine that a successful prosecution of Assange under the computer fraud statute would “criminalize the news-gathering process.”
If Assange qualifies as a member of “the press,” constitutionally speaking, that won’t necessarily get him off the hook. First Amendment protections are not absolute, and the court might permit the case to go forward on the grounds that his particular kind of “abuse” goes beyond what Madison had in mind.
If the Times had been prevented from publishing the Pentagon Papers, we would not have learned that the government had lied to the American public about the Vietnam War. I mention this as a reminder that the First Amendment isn’t so much about protecting the press as it is about the public’s right to know.
If encouraging Chelsea Manning to turn over documents is a crime, then in Ellsberg’s opinion “journalism is a crime.” This may seem hyperbolic, but the case is no longer about an agreement between Assange and Manning to infiltrate government computers. It has become one that raises profound issues for America’s democracy.
If the cost of sending Assange to jail is a chilling of free speech and a free press, it isn’t worth it. We should all be very concerned.