The First Amendment is meaningless if it only protects people the government recognizes as journalists
Glenn Greenwald | Washington Post | Source URL
The U.S. government on Thursday unveiled an 18-count indictment against WikiLeaks founder Julian Assange, charging him under the 1917 Espionage Act for his role in the 2010 publication of a trove of secret documents relating to the Iraq and Afghanistan wars and diplomatic communications regarding dozens of nations. So extreme and unprecedented are the indictment’s legal theories and likely consequences that it shocked and alarmed even many of Assange’s most virulent critics.
The new indictment against Assange bears no relationship to WikiLeaks’ publication of Democratic Party and Clinton campaign documents or any of its other activities during the 2016 presidential campaign. Instead, it covers only publication of a massive archive of classified U.S. government documents that revealed a multitude of previously unknown, highly significant information about wars, government and corporate corruption, and official deceit. WikiLeaks, in 2010, published those materials in partnership with some of the largest media outlets in the world, including the New York Times, the Guardian, Der Spiegel, Le Monde and El Pais, outlets that published many of the same secret documents that form the basis of the criminal case against Assange.
With these new charges, the Trump administration is aggressively and explicitly seeking to obliterate the last reliable buffer protecting journalism in the United States from being criminalized, a step that no previous administration, no matter how hostile to journalistic freedom, was willing to take. The U.S. government has been eager to prosecute Assange since the 2010 leaks. Until now, though, officials had refrained because they concluded it was impossible to distinguish WikiLeaks’ actions from the typical business of mainstream media outlets. Indicting Assange for the act of publishing would thus make journalism a felony. By charging Assange under the Espionage Act, the Trump administration proved the asylum Assange obtained from Ecuador in 2012 — offered in the name of protecting him from persecution by the United States for publishing newsworthy documents — was necessary and justified.
The argument offered by both the Trump administration and by some members of the self-styled “resistance” to Trump is, ironically, the same: that Assange isn’t a journalist at all and thus deserves no free press protections. But this claim overlooks the indictment’s real danger and, worse, displays a wholesale ignorance of the First Amendment. Press freedoms belong to everyone, not to a select, privileged group of citizens called “journalists.” Empowering prosecutors to decide who does or doesn’t deserve press protections would restrict “freedom of the press” to a small, cloistered priesthood of privileged citizens designated by the government as “journalists.” The First Amendment was written to avoid precisely that danger.
Most critically, the U.S. government has now issued a legal document that formally declares that collaborating with government sources to receive and publish classified documents is no longer regarded by the Justice Department as journalism protected by the First Amendment but rather as the felony of espionage, one that can send reporters and their editors to prison for decades. It thus represents, by far, the greatest threat to press freedom in the Trump era, if not the past several decades.
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If Assange can be declared guilty of espionage for working with sources to obtain and publish information deemed “classified” by the U.S. government, then there’s nothing to stop the criminalization of every other media outlet that routinely does the same — including The Washington Post, as well as the large media outlets that partnered with WikiLeaks and published much of the same material in 2010, along with newer digital media outlets like the Intercept, where I work.
The vast bulk of activities cited by the indictment as criminal are exactly what major U.S. media outlets do on a daily basis. The indictment, for instance, alleges WikiLeaks “encouraged sources” such as Chelsea Manning to obtain and pass on classified information; that the group provided technical advice on how to obtain and transmit that information without detection, and that it then published the classified information stolen by its source. The indictment also explicitly states “part of the conspiracy [is] that ASSANGE and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records containing information related to the national defense of the United States.” It includes as part of the criminal conspiracy the fact that Assange and his source “took measures to conceal Manning as the source” by using encrypted chat programs.
Outside the parameters of the Trump DOJ’s indictment of Assange, these activities are called “basic investigative journalism.” Most major media outlets in the United States, including The Post, now vocally promote Secure Drop, a technical means modeled after the one pioneered by WikiLeaks to allow sources to pass on secret information for publication without detection. Last September, the New York Times published an article (titled “How to Tell Us a Secret”) containing advice from its security experts on the best means for sources to communicate with and transmit information to the paper without detection, including which encrypted programs to use.
Many of the most consequential and celebrated press revelations of the past several decades — from the Pentagon Papers to the Snowden archive (which I worked on with the Guardian) to the disclosure of illegal War on Terror programs such as warrantless domestic NSA spying and CIA black sites — have relied upon the same methods that the Assange indictment seeks to criminalize: namely, working with sources to transmit illegally obtained documents for publication.
The history of the WikiLeaks investigation, which was initiated by the Obama administration, proves how menacing this new indictment is. In the wake of the 2010 publications, Obama officials eagerly wanted to indict WikiLeaks and Assange. The Justice Department convened a grand jury in 2011 to investigate WikiLeaks and that investigation endured for years.
While the Obama administration was willing to hunt down and prosecute journalists’ sources using the Espionage Act, it never charged WikiLeaks simply for publishing classified information. Obama officials were willing to prosecute Assange only if they could find evidence that he did more than work with his source, Chelsea Manning, in the ways journalists typically collaborate with their sources. They searched for evidence showing, and pressured witnesses (including Manning) to assert, that Assange actively instructed Manning on how to remove those documents. Years of searching found no evidence that this happened, so officials concluded that any prosecution of WikiLeaks or Assange would irrevocably endanger press freedoms because there was no way to prosecute WikiLeaks without also prosecuting the New York Times and the Guardian for publishing the same material.
The Trump administration’s first indictment of Assange, filed last month, sought to circumvent this dilemma by masquerading as a narrowly crafted instrument that offered Assange’s adversaries an easy way to cheer the charges without being perceived as supportive of threats to journalistic freedom. That indictment pretended it was prosecuting Assange for allegedly helping Manning hack into government databases to steal secret material.
But even that first indictment was clearly a ruse. It did not allege that Assange attempted to help Manning “hack” into government databases to steal documents. It only alleged that he did that so to help her avoid getting caught, which is not merely a right but a duty of journalists when dealing with sources who are taking great risks to show the public what their governments and powerful corporations are doing.
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“Julian Assange is no journalist,” Assistant Attorney General John Demers pronounced in announcing the indictment. By this reasoning, imprisoning Assange for publishing documents poses no dangers to “real journalists” because press freedoms are inapplicable to Assange (or, presumably, anyone else denied the “journalist” designation).
But this distinction between “real journalists” and “non-journalists” is both incoherent and irrelevant. The claim reveals a glaring — and dangerous — confusion about what press freedom means, how it functions and the reasons the Constitution guarantees its protection.
Unlike doctors and lawyers, “journalist” is not some licensed, credentialed title that only a small, privileged set of professionals can legitimately or legally claim for themselves upon fulfilling a defined set of educational and professional requirements. Unlike those professions, the state does not license who is and is not a “journalist.”
The opposite is true: a “journalist” can be, and is, anyone, regardless of education, credentials or employment status, who informs the public about newsworthy matters. The sole requirement to be a “journalist” is to engage in an act of journalism, with in turn is best defined as the reporting to the public of events in the public interest, particularly when such revelations inform the public about what democracy’s most powerful factions are doing behind a wall of secrecy.
In a 1977 Supreme Court opinion documenting the limitless scope of the constitutional free press guarantee, Chief Justice Warren Burger wrote: “In short, the First Amendment does not ‘belong’ to any definable category of persons or entities: It belongs to all who exercise its freedoms.”
The historical context for the First Amendment’s press freedom guarantee was the advent of the printing press, which empowered any citizen to speak out against, or reveal information about, political authorities. It was the right to engage in that activity that the Constitution’s framers sought to protect — not just for a small group called “journalists” but for all citizens.
Indeed, the First Amendment’s “press freedom” guarantee was available to everyone precisely because it was a reaction to the British Crown’s attempt to limit who possessed this right by licensing who is and is not a “journalist,” as Burger wrote for the Supreme Court in 1977.
Of course, even if the court had not established, over and over, that the act of publishing information in the public interest is protected no matter who does it, much of WikiLeaks’ work is obviously journalism. Many of WikiLeaks’ publications, particularly the 2010 blockbuster stories which the Trump administration is trying to criminalize, fall squarely within anyone’s definition of “the free discussion of governmental affairs,” as a 1966 Supreme Court decision put it. Indeed, WikiLeaks won prestigious journalism awards around the world for those stories, becoming a sought-after journalistic partner by the world’s most influential media outlets. The 2010 stories helped bring about highly consequential reforms: Former New York Times editor Bill Keller credits release of the diplomatic cables with sparking the Arab Spring by revealing systemic corruption on the part of Tunisia’s ruling regime. Others say those documents helped end the Iraq War by exposing such horrific abuses by U.S. forces that the Iraqi government’s intention to extend its authorization for U.S. troops to remain on Iraqi soil became politically untenable.
Justifying Assange’s prosecution on the grounds that he is “not a journalist” reveals a grand, dark irony: To declare that publishing relevant materials about powerful actors is a right possessed only by those designated by the government to be “real journalists” is itself an obvious threat to press freedom. That was the historical danger the First Amendment sought to avoid.
Is there anyone who trusts Trump (who has dismissed an entire cable outlet and several newspapers as “Fake News”), or the federal judiciary — or any politician — to sit in judgment of who does and does not merit this vague honorific, without which publishers can be jailed?
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Critically, this newest indictment vindicates the fears expressed for years by WikiLeaks, its supporters and the government of Ecuador, which in 2012 granted political asylum to Assange in its London embassy to protect him from political persecution.
Assange first went to the Ecuadoran Embassy when he was facing charges of sexual assault in Sweden, and his critics had always claimed it was those charges he hoped to dodge by “hiding out” in the embassy. But both Assange’s lawyers and Ecuadoran officials had vowed from the start of that saga that Assange would immediately leave the embassy and board the next flight to Stockholm if Swedish authorities promised not to use his presence in their country as a pretext to extradite him to the U.S. to be prosecuted for publishing documents. The Swedish government, despite having the authority to make such a promise, refused to do so.
That led Assange and Ecuador to conclude that luring Assange to Sweden, a close U.S. ally, would result in his extradition and eventual prosecution for the “crime” of publishing documents and thus be threatened with life in a U.S. prison for doing so. Ecuador, along with press freedom groups around the world, viewed that threat as classic political persecution, and concluded it was not only the country’s right but its duty under international treaties to protect Assange by offering him asylum.
The British authorities who arrested Assange in London last month after Ecuador rescinded his asylum are now in discussions to do exactly what WikiLeaks defenders had always feared: send him to the United States for prosecution under the Espionage Act. That fear was long mocked by Assange critics as a paranoid pretext to avoid facing the case in Sweden, and it’s now been quite obviously vindicated.
The Obama administration had given ample reason for Assange to be concerned, by pursuing criminal charges and impaneling a grand jury that stayed active for years. But the Trump administration, from the start, escalated that threat severely and quite publicly. In April 2017, Mike Pompeo, then the CIA director and now the secretary of state, delivered a blistering speech about WikiLeaks suffused with threats. Pompeo proclaimed “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” adding while WikiLeaks “pretended that America’s First Amendment freedoms shield them from justice . . . they are wrong.” He concluded: “To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.”
Trump has often openly mused about measures designed to make it easier to punish journalists for what they published. His first attorney general, Jeff Sessions, told the Senate in 2017 that he would not rule out prosecuting not only government sources but also journalists for national security leaks.
The criminal case against Assange, if it were to succeed, would provide the perfect blueprint, the most powerful precedent imaginable, for criminalizing journalism in the United States. Once it is established that working with sources to publish classified information is no longer journalism but espionage, it will be impossible to limit that menacing principle.
When governments seek to eliminate core civic liberties, a common tactic is to begin by targeting a figure who is deeply marginalized and unpopular, with the hope that personal animosity toward him will lead people to cheer his punishment rather than oppose such efforts because of the dangerous precedent it is designed to create. But supporting a dangerous precedent because of contempt for the initial target is the ultimate act of irrationality: Once the precedent is legally consecrated, the ability to oppose its subsequent application to more popular figures disappears.
Assange has few allies left in the United States. The 2010 leaks that exposed war crimes by the Bush administration and the War on Terror generally made him a hero among many leftists, but the enemy of Republicans and hawkish Democrats alike. His remaining support among U.S. liberals subsequently disappeared, and was replaced by seething contempt, when his 2016 leaks revealed corruption at the DNC and harmed Hillary Clinton’s campaign.
The Trump administration has undoubtedly calculated that Assange’s uniquely unpopular status across the political spectrum makes him the ideal test case for creating a precedent that criminalizes the defining attributes of investigative journalism. Now every journalist and every citizen must decide whether their personal animus toward Assange is more important than preserving press freedom in the United States.