Assange, and the critical threat to publishing state secrets

December 23, 2020

Remember that little spying case against Julian Assange? The Department of Justice indicted him last year for publishing classified US military and State Department documents leaked in 2010 by Chelsea Manning, who was then a soldier in Iraq. While Attorney General William Barr is now on his way out the door, the charges against the WikiLeaks founder, brought under the Espionage Act, are alive and as dangerous as ever.

New leadership at the Justice Department traditionally sticks with most of the cases initiated by the prior administration, so it seems unlikely that the Biden team will abandon the Assange prosecution. Any precedent it sets, therefore, may be with us for a long time.

On January 4, Vanessa Baraitser, a district judge in the UK, will decide whether to grant the DOJ request for Assange’s extradition to the US for trial. In presenting its arguments to the English court, counsel for the Justice Department framed the case as due comeuppance for endangering lives by publishing “documents which contain the names of informants.”

Don’t let the misdirection around “blown informants” fool you—this case is nothing less than the first time in American history that the US government has sought to prosecute the act of publishing state secrets, something that national security reporters do with some regularity.

While many of the charges involve conspiracy or aiding and abetting, three counts are based on “pure publication”—the argument that Assange broke the law just by posting classified documents on the internet.  

Read literally, the Espionage Act criminalizes the solicitation, receipt, and publication of any government secret, not just the names of informants. The Justice Department has long taken the position that it can prosecute the act of publishing classified information. But it has not done so, until now, because of concerns that it would open a Pandora’s box of media censorship.

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In 1975, for instance, Seymour Hersh published a front-page New York Times article on “Operation Holystone,” a highly classified submarine-based eavesdropping program against the Soviet Union. Following several accidents—including one in which a submarine surfaced underneath a Soviet ship during a fleet exercise—Hersh reported the concerns of internal critics of the program, who feared blowback from the program in a time of détente.

The Ford administration considered seeking indictments of Hersh and the Times. Attorney General Edward Levi went so far as to draft a memorandum asserting that the Espionage Act applies to the publication of government secrets by the press. But Levi suggested that prosecuting a journalist or newspaper would be unwise. The “most promising course of action,” he wrote, would be “to discuss the problem of publication of material detrimental to the national security with leading publishers.” Ultimately, the Ford administration declined to prosecute.

There is another disturbing element to the Assange case: the extradition request itself. Under many US extradition treaties, we can’t extradite someone for espionage. While it may seem counterintuitive, the political offense exception, as it is known, dates back to the years after the American and French Revolutions and the growing concern that offenses such as espionage, treason, or sedition could be misused to persecute failed rebels and political dissidents. (Note that espionage charges are often used today against journalists in other countries). It also reflects the belief that crimes solely against the state are less bad than common crimes against people.

Assange is a self-made lightning rod, and the journalism world is divided about his case, but his prosecution is about much more than him.

The US’s aggressive efforts to extradite Assange under spying charges for publicly disclosing classified information—in contravention of the political offense exception—could create precedent that affects the US press. If the UK grants the request to deliver Assange to the US, British prosecutors could make similar arguments in an effort to extradite a journalist in the US for violations of the UK’s Official Secrets Act, which explicitly criminalizes the publication of leaked military or intelligence information. Whether those arguments would be successful in front of a US court is an open question, but the concern is not merely hypothetical. In the 1990s, the UK tried to extradite a leaker from France, which denied the request because of the political offense exception. In 2018, authorities in the UK threatened the American filmmaker Alex Gibney, who is a member of the Reporters Committee for Freedom of the Press steering committee, with arrest for using a leaked police report in a documentary.

Such precedent may not be limited to the UK. Australia, for instance, has been notably aggressive of late in investigating and prosecuting national security reporting. In 2019, a military whistleblower leaked the “Afghan Files,” which detailed possible war crimes by Australian special forces troops in Afghanistan. The Australian Federal Police raided the offices of the Australian Broadcasting Corporation and recommended charges against a journalist under Australian spying laws. Fortunately, Australian prosecutors declined to prosecute; late this year, the Australian military released the Brereton Report, which found evidence confirming some of the reporting, as well as indications of a cover-up. 

As with the UK, the Australia/US treaty bars extradition for political offenses. However, were Judge Baraitser to order Assange’s extradition, Australian prosecutors may be able to cite that order in a case involving journalists in the US.

Assange is a self-made lightning rod, and the journalism world is divided about his case, but his prosecution is about much more than him. The US is uniquely committed to the idea that popular government requires popular information about government, particularly in cases involving war, intelligence gathering, and foreign affairs—where government secrecy reaches its zenith. The primary conduit of that information to the public is an independent and adversarial press, a role that the founders enshrined in the First Amendment.

To be clear, Assange’s extradition to—and even his conviction in—the US would not be the last word on whether the government could use the Espionage Act to prosecute reporting on government secrets by established news outlets. A bruising First Amendment battle would await.

But the legal theory in the three pure publication counts is applicable to core journalistic activities. If Judge Baraitser does not see through the “blown informant” smoke screen to the true breadth of the government’s case, the normalization of prosecutions based solely on the publication of official secrets could get a toehold in the US.

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Bruce D. Brown is the Executive Director of the Reporters Committee for Freedom of the Press.