The plea deal Julian Assange, founder of WikiLeaks, reached with prosecutors is bad for America’s press freedom. But the results could also be worse.
According to the agreement, he expected to walk freely after more than five years in British custody, much of which was spent fighting extradition to the United States. In exchange, he would plead guilty to violating the Espionage Act.
The result is an ambiguous ending to a legal saga that jeopardizes the ability of journalists to report on military, intelligence or diplomatic information that officials consider confidential. Enshrined in the First Amendment, the role of a free press in bringing to light information beyond what those in power have approved for publication is a founding principle of American self-government. .
Assuming the judge accepts the deal, for the first time in US history, collecting and publishing information the government considers secret will be considered a crime. This new precedent will send a threatening message to national security journalists, who may be chilled by the aggressive way they carry out their work because they will see the risk of prosecution higher.
But its reach is also limited, in order to ward off a larger threat. Because Mr. Assange agreed to a settlement, he will not challenge the legality of the Espionage Act’s application to his actions. The outcome would then avert the risk that the case could result in a definitive Supreme Court ruling upholding prosecutors’ narrow interpretation of First Amendment freedom of the press.
“He essentially pleaded guilty to the things that journalists always do and need to do,” said Jameel Jaffer, executive director of the Knight First Corrections Institute at Columbia University. “It would cast a shadow over freedom of the press — but not the kind of shadow cast by a judicial opinion that this activity is criminal and not protected by the First Amendment.”
In short, he added, the results are complex from a press freedom perspective and cannot be considered “entirely bad or entirely good.”
The First Amendment implications of the case are often clouded by the fierce debate over whether Mr. Assange qualifies as a journalist — and by residual anger from Democrats about his release of emails stolen from their party during the 2016 presidential election.
Mr. Assange arranged the release of messages obtained by Russian hackers to hurt Hillary Clinton, the Democratic Party candidate, causing disruption. the party’s national congress And after that Share regularly in the final stages of the campaign.
But for the purposes of freedom of the press, what matters is not who counts as a journalist, but whether journalistic activities – whether carried out by journalists or anyone else – can be considered journalistic. criminal or not. And the charges against Mr. Assange are not about Moscow’s secret efforts to help Donald J. Trump won the 2016 election.
Rather, the accusations focus on the earlier publications that brought him to international fame and made him a hero of the anti-war left: a video about American helicopters shot and killed people in Baghdad, including a Reuters photographer; heaps Military incident log documenting the wars in Afghanistan and Iraq; a quarter of a million diplomatic cables from US embassies around the world; And profile of Guantánamo prisoners.
The narrowed crime information which Mr. Assange agreed to plead guilty to centers on charges of conspiracy to violate the Espionage Act. Court documents say that Chelsea Manning, a military intelligence analyst, and Mr. Assange agreed that she would send him national security files, even though he did not have a security clearance. security, and he will then “communicate them” to others who also “have no right to receive them” – that is, publish them.
Charging a government official with a security clearance with leaking national security information for publishing news stories has historically been extremely rare, but Such prosecutions have become routine in the 21st century. The Justice Department began regularly charging leaks in the middle of the Bush administration and continued that pattern under successive administrations.
Despite being charged in the military justice system, Ms. Manning remained part of that wave, admitting guilt during her 2013 military trial and receiving a 35-year prison sentence. President Obama had that sentence largely commuted in January 2017; In total, she has been detained for about seven years from the time of her arrest.
But successfully prosecuting a non-governmental official for releasing national security information of public interest that he obtained while working with a source is another matter. No one has ever been charged under the Espionage Act for journalistic conduct, in part because there has long been a widespread view that applying that law to such conduct would be unconstitutional.
At that time, the accusations against Mr. Assange crossed the line. It suggests that the crackdown on leakers in the 21st century could expand to include criminalizing the same kinds of actions that came to light after 9/11. since 11 November 2001, abuses such as warrantless wiretapping and torture, as well as daily journalism on military, intelligence or diplomatic issues help people better understand the world .
The Bush Justice Department took the first step in this direction after a Pentagon official disclosed classified intelligence about Iran to two lobbyists for AIPAC, a pro-Israel group. In addition to charging the officer who pleaded guilty, prosecutors in 2005 went after the lobbyists — even though they were not officials and did not have security clearances — to continue disseminating secrets to journalists.
But a judge issued skeptical rulings that downplayed the case, and The Obama-era department abandoned it in 2009.
The following year, after Mr. Assange began publishing Ms. Manning’s leaks, Justice Department officials considered whether he could be charged with some kind of crime. But they hesitated at the prospect set precedent that could be used against mainstream news outlets, like The New York Times, which also sometimes collect and publish information the government considers secret.
However, the Justice Department under the Trump administration moved to charge Mr. Assange, secretly filing a criminal complaint in late 2017 and months later receiving a sealed grand jury indictment. The move ensures the government can seek his arrest and extradition if he leaves the Ecuadorian embassy in London, where he has been holed up for years.
Initial indictment largely avoids issues of press freedom by making narrow charges against Mr. Assange, accusing him of a conspiracy involving hacking. But in 2019, the Department of Justice additional charges under the Espionage Actgambling to make it an important test of the First Amendment.
And in 2021, the Biden administration took office and continued to push to try to extradite Mr. Assange to face a criminal trial on all those charges. The Biden-era department also negotiated a plea deal to resolve the case, dropping hacking-related charges but winning an Espionage Act conviction.
Although the case is unlikely to open the door for the Supreme Court to limit press freedom under the First Amendment, the government still makes an example of Mr. Assange in a way that may make some security journalists the country does not cover some important stories. afraid of facing similar prosecution.
And if the future flow of newsworthy information to the public is indeed impeded, to the detriment of the American democratic system, the responsibility will be shared by officials of both administrations.
