The Media Today

Espionage charges against Assange are a ‘terrifying’ threat to press freedom

May 24, 2019

Last month, shortly after police dragged Julian Assange, the founder of WikiLeaks, out of Ecuador’s embassy in London, the United States said it would seek his extradition. Journalists and press-freedom watchers—many of whom dislike Assange—waited anxiously for details of the charges; the Justice Department, they feared, was prepared to indict Assange for practices relevant to journalism, possibly under the Espionage Act. Later that day, when the charge was made public, some breathed a sigh of relief: Assange was to face a single count under the Computer Fraud and Abuse Act, for helping Chelsea Manning crack a password, which is not something reporters typically do. Many press advocates, however, warned that the indictment contained some gray areas, and that further charges would likely follow. A separate, recently unsealed affidavit in Assange’s case added cause for concern. It discussed publishing, and borrowed language from the Espionage Act.

Yesterday, the situation took a grave turn. US authorities outlined 18 additional charges against Assange, 17 of which fall under the Espionage Act. All of the charges arose from sharing classified intelligence documents and diplomatic cables that Manning passed to WikiLeaks for publication. Assange faces a maximum sentence of 175 years. Briefing reporters, Justice Department officials insisted that they were not trying to criminalize journalism—most of the counts, they stressed, result from how Assange obtained information; those related to publication are narrow in scope, concerning only a handful of documents that identified US intelligence sources in dangerous places. (Many journalists consider Assange’s publication of such details to have been grossly unethical.) “Julian Assange is no journalist,” John Demers, head of the Justice Department’s National Security Division, said.

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The government should not get to decide who is and isn’t a journalist. And drawing a distinction is beside the point. “The question isn’t whether Assange is a journalist, but whether the government’s legal theory threatens freedom of the press,” Carrie DeCell, a staff attorney at the Knight First Amendment Institute at Columbia University, wrote on Twitter. “It does. The government argues that Assange violated the Espionage Act by soliciting, obtaining, and then publishing classified information. That’s exactly what good national security and investigative journalists do every day.” The solicitation charges are based on open calls for information that WikiLeaks posted on its website, a practice common to many news organizations. The Reporters Committee for Freedom of the Press said that the charges pose “a dire threat”; the Freedom of the Press Foundation called them “terrifying.” Ted Boutrous, a prominent media lawyer, said that the US government wants to use Assange’s bad name to cover for a dangerous precedent. “There’s a real element of picking the weakest of the herd, or the most unpopular figure, to try to blunt the outcry,” Boutrous told The New York Times.

Troubling legal clampdowns on press freedom have been on the rise since the latter days of the George W. Bush administration. Until now, however, the Justice Department has mostly used the Espionage Act to prosecute staffers who have leaked information to journalists. The charges against Assange represent a sharp departure, since this is the first time a publisher has been indicted under the law. (The Obama administration considered taking this step against Assange, but ultimately decided against it.)

It’s far from clear whether the charges against Assange will stand up in court. It’s also unclear whether Assange will ever even face an American judge: Sweden is seeking to extradite him as part of a recently reopened rape investigation, and the latest heavy-handed US charges might not sit well with British courts, which have the power to decide where Assange goes next. With yesterday’s indictment, however, this story is no longer really about Assange. It’s the clearest example yet that in the US, the practice of journalism is at risk.

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Below, more on the government’s legal threats to press freedom:

  • The law as a sword: Manning, who is in jail for refusing to testify about Assange before a grand jury, released a statement following yesterday’s charges accepting “full and sole responsibility” for disclosing information to WikiLeaks. “This administration describes the press as the opposition party and an enemy of the people,” she said. “Today, they use the law as a sword, and have shown their willingness to bring the full power of the state against the very institution intended to shield us from such excesses.”
  • The Espionage Act as a chainsaw: Two weeks ago, the Justice Department charged Daniel Hale, a former National Security Agency analyst, under the Espionage Act, alleging that he leaked classified information to a journalist. The recipient was not named, but is widely believed to have been Jeremy Scahill, of The Intercept. This week, Scahill posted a 10-minute video on Trump’s war on leaks. The administration is “using the Espionage Act like a chainsaw,” he said.
  • The tip of the iceberg: In 2013, the Obama administration subpoenaed phone records belonging to the Associated Press and several of its reporters as part of a leak investigation. The move was widely condemned, but according to a new report obtained under the Freedom of Information Act, it wasn’t the end of the story: the Justice Department also considered subpoenaing the Times, The Washington Post, and ABC News. Ramya Krishnan and Trevor Timm round up the findings for CJR.

Other notable stories:

  • Theresa May, the British prime minister, is stepping down. May’s position finally became untenable after the certain demise of her Brexit deal; she will stay on as prime minister while the ruling Conservative Party chooses a new leader to replace her. (The race is likely to be crowded; Boris Johnson is the favorite.) For much of May’s tenure, domestic and foreign media portrayed her as a subject of pity and ridicule. Often, that was justified. But coverage also skewed sexist: a 2018 study by King’s College London found that the media’s early treatment of May was more gendered than its coverage of Margaret Thatcher after she took office in 1979.
  • Trump has declared war on Nancy Pelosi, and his internet minions have rallied behind him. Yesterday, doctored video footage of Pelosi—slowed down and modified for pitch to make her sound drunk—went viral on social media. Rudy Giuliani, Trump’s attorney, was among those who shared the video. (He later deleted it.) Fox News cut together its own misleading video of Pelosi. Last night, Trump tweeted it. “Spreaders of misinformation don’t need sophisticated technology to go viral,” the Post’s Drew Harwell writes. “Even simple, crude manipulations can be used to undermine an opponent or score political points.”
  • Jay Fielden is out as editor of Esquire. Fielden cited “the lure of new possibilities,” but Marc Tracy reports, for the Times, that a decision by executives at Hearst, which owns Esquire, to kill a blockbuster #MeToo story about Bryan Singer, the Hollywood director, “weighed on” Fielden. (The Singer piece was finally published in The Atlantic; in February, its authors, both on the masthead at Esquire, spoke to CJR.) According to the New York Post’s Keith J. Kelly, Fielden has “differed” with the direction taken by Troy Young, Hearst’s president, since Young’s appointment last year.
  • Yesterday, Bill de Blasio, the mayor of New York, ordered all city agencies to direct at least half of their annual print and online ad spending to community and ethnic media outlets. The move aims, in part, to help smaller titles stay solvent; de Blasio, who has had a tense relationship with the New York press corps since taking office, insisted that the ad buys would not be dependent on favorable coverage. David Brand has more for the Queens Daily Eagle.
  • For CJR, Nick Pinto writes that covering the New York City Police Department is an impossible task, given the NYPD’s lack of transparency. Recently, reporters, including Pinto, have struggled to cover the administrative trial of Daniel Pantaleo—the officer charged with killing Eric Garner, an unarmed Black man, in 2014—due to a lack of available documents and limited space in the courtroom. The final recommendation and decision in the case will be secret. Pinto spoke with Kyle Pope, CJR’s editor and publisher, on our podcast, The Kicker.
  • In March, prosecutors in Chicago dropped all charges against Jussie Smollett, the Empire actor who, police alleged, had falsely claimed he was the victim of a hate crime. The same day the charges were dismissed, Smollett’s attorneys succeeded in sealing all evidence and records related to his case. Several media outlets objected; yesterday, a judge ordered that the records be unsealed, in part because Smollett undercut his privacy argument by seeking publicity. NBC News has more.
  • For Vanity Fair, Joe Pompeo reports that the Times has become “a book-deal factory” of late; with many high-profile reporters requesting book leave, editors are concerned that they’ll be shorthanded on key beats. Earlier this month, Dean Baquet, editor of the Times, and Carolyn Ryan, assistant managing editor, wrote staffers with a reminder: “The Company reserves the right to deny a book leave request for any reason. Our journalistic needs must come first.”
  • This week, two French newspapers declined a joint interview with Emmanuel Macron, the country’s president, because Macron’s office wanted to approve his quotes prior to publication. That practice is common among French politicians and media, but, in recent years, has become the subject of increased debate. For CJR, I assess the arguments.
  • And from noon today, you can check out “National Enquirer Live!”—an amusement park installation in Pigeon Forge, Tennessee, inspired by the controversial tabloid of the same name. According to The Daily Beast’s Lloyd Grove, the attraction has exhibits exploring notable conspiracy theories, including several around the death of Princess Diana; visitors “can watch a 3D, computerized model tracing Diana’s last moments.”

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.