By Stephen Rohde
On November 28, the editors and publishers of five international media outlets released a joint letter— under the title “Publishing is Not a Crime”—calling on the U.S. government to end its prosecution of Wikileaks founder Julian Assange. The date was significant. Twelve years prior, on November 28, 2010,the same five newspapers—The New York Times, The Guardian, Le Monde, El Pais and DER SPIEGEL—each published revelations in cooperation with Wikileaks that made headlines around the globe.
“Cable gate,” a set of 251,000 confidential cables from the U.S. State Department disclosed corruption, diplomatic scandals and spy affairs on an international scale. According to The New York Times, the documents told “the unvarnished story of how the government makes its biggest decisions, the decisions that cost the country most heavily in lives and money.”
Even now in 2022, the joint letter states, journalists and historians continue to publish new revelations drawn from the unique trove of documents.
A month ago, in October, at the same time he was prosecuting Assange, Attorney General Merrick Garland announced that the Justice Department would formally ban the use of subpoenas, warrants, and court orders to seize reporters’ communications records, or demand their notes or testimony in an effort to uncover confidential sources in leak investigations. He boldly stated that the new “regulations recognize the crucial role that a free and independent press plays in our democracy. Because freedom of the press requires that members of the news media have the freedom to investigate and report the news, the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair news gathering.”
It is the height of hypocrisy that at the very time Garland uttered these lofty words, he was actively pursuing an unprecedented indictment against Assange, who is facing 175 years in prison if extradited and convicted under the Espionage Act of 1917.
The conduct for which Assange is accused of breaking the law is exactly what the new DOJ regulation defines as protected “news gathering”; namely “the process by which a member of the news media collects, pursues or obtains information or records for purposes of producing content intended for public dissemination,” including “classified information” from confidential sources. The Justice Department is also said to have removed “espionage” from a list of criminal activities excluded from protected news gathering.
If the Biden administration means what it says, it should immediately reverse one of the worst legal excesses of Donald Trump’s term. The indictment of Assange is the first time in the 230-year history of the First Amendment that a media organization is being prosecuted for publishing or disseminating classified information disclosed by a whistleblower. Since founding Wikileaks, Assange has been in the business of gathering and publishing newsworthy information and documents, activities clearly protected by the First Amendment.
Assange came to the U.S. government’s attention because he was publishing information highly incriminating and embarrassing to the U.S. government, including the controversial “Collateral Murder” video showing a U.S. air crew in Apache helicopters in July 2007 slaughtering a dozen people in Iraq. The dead included two Iraqis working for Reuters news agency, contradicting U.S. claims that all the dead were insurgents.
Editors of major media organizations have decried the prosecution’s chilling effect on the American press. Former Washington Post Executive Editor Marty Baron said the indictment “undermines the very purpose of the First Amendment.” USA Today Editor in Chief Nicole Carroll has called it a “chilling attack on press freedoms and the public’s right to know.”
According to Jameel Jaffer of the Knight First Amendment Institute at Columbia University, the charges against Assange “rely almost entirely on conduct that investigative journalists engage in every day. The indictment should be understood as a frontal attack on press freedom.” Many publications and investigative reporters, such as Seymour Hersh, routinely seek information that government officials want to keep secret, including classified national security matters. They cooperate with their sources when they obtain that information, they publish that information and they take steps to protect the confidentiality of their sources.
On January 4, 2021, British criminal court judge Vanessa Baraister denied the U.S. government’s request to extradite Assange. Given the fact that he had been confined to Ecuadorian embassy for seven years and held in the Balmarsh high-security prison since April 12, 2019, the judge found that Assange’s mental condition “is such that it would be oppressive to extradite him to the United States of America.” Instead of simply accepting that decision and distancing itself from Trump’s outrageous indictment, the Biden DOJ appealed that ruling and convinced the British higher courts to reverse Judge Baraister.
Last June, the British government formally ordered Assange to be extradited. His lawyers promptly appealed, now free to raise additional issues including the fundamental question whether extradition should be blocked because the entire indictment constitutes a “political offense.” If Assange loses that appeal his last resort is to seek protection from the European Court of Human Rights. Meanwhile, in poor health and separated from his wife and two children, he languishes in prison.
If left unchallenged, the Trump administration’s lasting First Amendment legacy will be to criminalize essential journalistic practices; that is, to do precisely what the First Amendment was intended to prevent. By continuing the prosecution against Assange, the Biden administration will seriously damage American democracy and greatly undermine its standing in the world.
In 2013, the Obama-Biden Justice Department correctly declined to indict Assange in deference to the threat such a prosecution would pose to the First Amendment. That was a prudent decision underscored by President Obama’s commutation of the prison sentence of Assange’s alleged source, Chelsea Manning, in the last days of his presidency. The Obama-Biden Justice Department recognized that indicting Assange would put every other journalist and publisher in legal jeopardy.
The joint letter from The New York Times, The Guardian, Le Monde, El Pais and DER SPIEGEL expressed “grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.” The indictment “sets a dangerous precedent, and threatens to undermine America’s First Amendment and the freedom of the press. Holding governments accountable is part of the core mission of a free press in a democracy. Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalized, our public discourse and our democracies are made significantly weaker.”
The United States still has time to reverse course and put a stop to this affront to the First Amendment. If the new administration is sincere in expressing laudable sentiments about press freedom, it must immediately drop the case against Julian Assange.
This article was originally published in Truthdig.