The free press shudders as the US charges Julian Assange

Assange leaves court in London earlier this month.
Assange leaves court in London earlier this month.
Image: AP Photo/Matt Dunham
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The US Department of Justice today charged Wikileaks founder Julian Assange with 17 additional felonies under the Espionage Act.

The government charged Assange with unlawfully obtaining national defense information, and for communicating that to the public. The latter charges, Department of Justice officials stressed, pertained specifically to Wikileaks’ publication of State Department cables and other information that they said endangered human sources in Iran, Syria, China, Iraq and Afghanistan.

Assange has long claimed that his actions were no different than the actions traditional media carry out regularly, essentially framing himself as a journalist. Never before in history has the government successfully prosecuted a journalist for violating the Espionage Act. Depending on the result of the case, it could have longterm repercussions for the news industry.

At the core of the problem is the World War One-era Espionage Act itself, First Amendment advocates say. The law’s definitions are confusing and vague. It essentially makes it a crime for anyone with “unauthorized possession” of any information about US national defense, which “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” to transmit it to anyone else.

Free press advocates worry the charges could further embolden the Trump administration to go after leakers, whistleblowers, and the news outlets they go to with their information.

“What’s the difference between what Julian Assange did, and what the reporters in this room do?” one reporter asked today at a press conference at the Department of Justice headquarters.

“I can’t comment on the policy aspect,” the Justice Department official replied. He said Assange is guilty of encouraging Chelsea Manning, the former military intelligence analyst who provided the documents to Wikileaks, to “procure information and disregarded the warning of the State Department.”

He acknowledged there was little legal precedent. “Our burden will be to establish that there was an intention to do harm, and we are confident we will be able to establish that.”

What “intention to do harm” means, however, remains unclear. The law as written could criminalize everything from tweeting about news stories to discussing them over the dinner table, Lawfare’s Benjamin Wittes pointed out in 2010, when the United States first launched a criminal investigation into Assange:

By its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations. It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them–in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents.

Assange is now being held by British authorities. He is also facing charges in Sweden for sexual assault. Today’s charges come after the US District Court in Eastern Virginia charged him last month with one count of conspiracy to break into computers to obtain classified information that “could be used to the injury of the United States and the advantage of any foreign nation.”

Each of the charges against Assange carries a maximum 10-year sentence.