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Another Important Post: “Trump’s Charges Against Julian Assange Would Effectively Criminalize Investigative Journalism: Ever since the Pentagon Papers case, an Espionage Act loophole has been waiting for a president thuggish enough to make use of it”
by gwilson on June 1, 2019 12:39 pm
Trump’s Charges Against Julian Assange Would Effectively Criminalize Investigative Journalism
Ever since the Pentagon Papers case, an Espionage Act loophole has been waiting for a president thuggish enough to make use of it.
YESTERDAY 10:40 AM
Isolated in Britain’s Belmarsh Prison, Julian Assange was too ill to attend his own extradition hearing this week—a hearing now postponed to mid-June. This pause in the action is also an opportunity to contemplate the dangerous new path on which the Trump administration has embarked in its pursuit of the WikiLeaks founder, with the 17 new counts of violating the Espionage Act filed by the Justice Department last week. Those new counts make THE REAL TARGETS of the Assange prosecution clear: JOURNALISTS WORLDWIDE.
The new charges against Assange—far broader than the narrow password-hacking charge on which he was first detained for extradition—are unprecedented, politically charged, and consequential. Like the earlier charge, they focus on his 2010 publication of the “Iraq War Logs” document cache and the “Collateral Murder” video showing airstrikes targeting two Reuters correspondents. These new charges accuse Assange of trying to persuade his source, Chelsea Manning, to leak; of helping to protect that source’s identity; and of publishing information that, in government officials’ opinion, could harm national security. All of these charges may well describe how intelligence officials view the leaks in question. But they also describe the routine tradecraft of investigative and national-security journalists—and they would effectively criminalize a wide range of essential reporting practices in the United States.
The DNA of these new charges runs deep into the history of presidential abuse of power. President Trump and Attorney General William Barr are explicitly picking up the foiled press-punishment ambitions of President Richard Nixon in the Pentagon Papers case. When The New York Times first published the Pentagon Papers in June of 1971, Nixon might have let the storm pass. After all, the papers, leaked by former Pentagon analyst Daniel Ellsberg, didn’t directly critique the new Republican president; they exposed the disastrous, cynical Vietnam policies of Nixon’s hated Democratic predecessor, who had been repudiated by his own party. But Nixon saw in the publication of a secret Defense Department study of US involvement in Vietnam something else: his opportunity to muzzle restive, critical journalists. So his Justice Department went to court and, citing the Espionage Act, won an injunction blocking the Times from continuing to publish its series. As Steven Spielberg recounted in The Post, his 2017 film about that Washington paper and the Pentagon Papers case, reporters and editors at the Post defiantly obtained and published their own copy of the documents; other news outfits rallied round; and ultimately the US Supreme Court upheld the Times’and the Post’s First Amendment right to publish without prior government restraint.
Spielberg’s film didn’t mention that the Pentagon Papers decision, ringing as it was, left one glaring loophole: the Espionage Act itself. The Court deliberately sidestepped any ruling on whether the act could be deployed to punish publishers of secrets as co-conspirators after the fact. Even after losing the Pentagon Papers case, Nixon and his Attorney General John Mitchell pursued an Espionage Act prosecution of whistle-blower Ellsberg—which fell apart only when it became clear that the Nixon administration’s gross misconduct in its attempt to identify and punish government leakers, eventually revealed in the Watergate scandal, had irretrievably damaged their case. While American journalism has spent decades savoring the Pentagon Papers victory, that Espionage Act loophole has been sitting, waiting for a president desperate enough, vindictive enough, or thuggish enough to make use of it.
That president is, of course, Donald Trump, who with his new Espionage Act counts against Assange has driven a truckload of explosives through that half-century-old loophole. Like Nixon, Trump has no obvious interest in prosecuting leaks of years-old controversies that damage the reputation of a past administration. But like Nixon, he will seize any opportunity to weaken an independent press.
Trump also understands—better than Nixon did—American journalism’s chronic lack of solidarity. …
According to the Post, Attorney General Barr filed the new Espionage Act charges over the objections of career Justice Department prosecutors who assembled the original, narrow Assange indictment. If and when Assange appears in an American courtroom, judges will confront A STARK CHOICE: whether to expand on the Pentagon Papers precedent and protect public-interest whistle-blowers and publishers alike, or turn the 102-year-old Espionage Act into a 21st-century official secrets law.
Barr has made his bet. He knows that today’s federal courts are populated with Republican appointees far more friendly to expansive presidential power and national-security claims than the civil-libertarian Supreme Court of 1971. …
The press-freedom dangers of these Espionage Act charges DON’T STOP AT THE US BORDER. As Joel Simon of the Committee to Protect Journalists has pointed out, this prosecution sets a dangerous precedent because Assange is not a US citizen and he worked outside the United States; a publisher or activist in Britain, New Zealand, Japan, or any other nation who receives a leaked US-government document could be subject to US indictment and extradition. The dangers also run in the opposite direction; the prosecution could also encourage authoritarian nations to prosecute American reporters who publish, say, secret details about those nations’ human-rights abuses.
The new charges transform the case against Assange intoA BLATANTLY POLITICAL CAMPAIGN TO LIMIT INDEPENDENT JOURNALISTS AND MUCKRAKERS—a cornerstone of the Trump agenda articulated by the president himself. Ironically, if there is any glimmer of hope in this high-stakes bet by Trump Justice, it is that the broadening of the Assange charges may actually strengthen his argument against extradition. Nearly all the world’s treaties—including those of the United States and Europe—explicitly exempt “offenses of a political nature” from extradition. IT’S HARD TO IMAGINE A MORE POLITICAL CASE THAN THE ONE CREATED BY THESE NEW ESPIONAGE ACT CHARGES.
It is small comfort to Assange, in his maximum-security detention cell, that there is—thanks to the Trump administration’s latest political attack on the institution of independent journalism—at least a fighting chance that this prosecution will fail before it gets started. But for that to happen, it will take vigorous and persistent articulation by journalists and our allies of what’s at stake. If the Trump administration can transform the Espionage Act into a weapon against muckraking publishers, the Pentagon Papers triumph of 1971 will fade overnight into a threadbare memory of press freedom lost.
Bruce Shapiro, a contributing editor to The Nation, is executive director of the Dart Center for Journalism and Trauma.
See also here for [with EMPHASIS added]:
Opposing Julian Assange’s Extradition Is Essential—Even if You Dislike Him
Why the indictment of the WikiLeaks publisher is an attack on freedom of the press.
MAY 31, 2019
Daniel Ellsberg was put on trial by the Nixon administration in 1972, charge with violating the Espionage Act because he leaked a secret history of American involvement in Vietnam to The New York Times—the Pentagon Papers. But his trial was halted and the charges dismissed because of misconduct by the government. This interview has been edited and condensed.
Jon Wiener: The Trump Administration recently indicted Julian Assange on 17 counts of violating the Espionage Act. His crime was that in 2010, WikiLeaks posted on its website devastating material that Army intelligence office Chelsea Manning had copied from Iraq war logs and diplomatic documents. The most notable was a video shot by American soldiers in an Apache helicopter in 2007 that showed them killing at least 17 civilians, including two Reuters journalists, on the streets of Iraq, something that should have been prosecuted as war crime. The video made headlines around the world. In 2013, Chelsea Manning was sentenced to 35 years in prison for espionage. Obama commuted her sentence in January 2017. The Obama Justice Department never brought charges against Julian Assange. Why do you think they didn’t?
Daniel Ellsberg: WikiLeaks in 2010 also published Hillary Clinton’s classified cables—she was secretary of state for Obama—so Assange earned her fury and hostility. And she wasn’t the only one in the Obama administration who would have loved to see Assange as well as Chelsea Manning behind bars. We now know that inside the Justice Department they definitely were considering indicting him, but concluded that they could not indict him without using a legal theory that would apply just as well to any of the newspapers that had printed WikiLeaks’ disclosures. That included The New York Times, The Guardian, El Paísin Spain, and Le Monde in France. So they chose not to take on the press directly, since in our country that would so clearly be a blatant violation of the First Amendment, which protects or guarantees freedom of the press. The Obama administration felt there was no constitutional way to bring the case that the Trump administration has now brought. That difference is hardly surprising at this point in the Trump administration. TRUMP HAS as much CONTEMPT FOR THE AMERICAN CONSTITUTION and Bill of Rights as, let’s say, Dick Cheney did. He doesn’t feel bound by it, so the question now is whether the media and Congress and the public will rise to the defense of the Constitution in ways they haven’t done in the past.
JW: We’re speaking here under the assumption that WikiLeaks is a publisher in the same category as The New York Times. And indeed, The New York Times did cooperate with WikiLeaks in publishing the Chelsea Manning information. But people on the other side argue that WikiLeaks is not a legitimate publisher. The Washington Post, for example, ran an editorial saying Assange is not a “real journalist” because WikiLeaks just dumps material into the public domain, “without any effort independently to verify its factuality or give named individuals an opportunity to comment.” What do you say to the argument that what Assange does at WikiLeaks is not really journalism?
DE: JOURNALISTS, INCLUDING AT The Washington Post, WHO SAY THAT INDICTING AND PROSECUTING AND CONVICTING JULIAN ASSANGE DOESN’T THREATEN THEM ARE EITHER LYING TO THEMSELVES OR LYING TO THE PUBLIC OR BOTH. It’s absurd. They’re in a state of denial. Glenn Greenwald recently had an excellent op-ed in The Washington Post, quoting a decision by Justice Warren Burger of the Supreme Court in 1977. He made it very clear that the First Amendment does not apply only to “journalists.” And who designates those? There’s no licensing of them, as Greenwald points out. The First Amendment applies to anyone who acts as a journalist—as he says, “The protections of the First Amendment apply to anyone who informs the public.” Today, with digital venues, that CAN BE VIRTUALLY ANYBODY.
JW: Many of my friends point out that Julian Assange actively helped Donald Trump become president, and that he’s being investigated for rape in Sweden, and therefore we shouldn’t support him. What do you say to that argument?
DE: This is very important. First of all, let me just repeat that the indictment of Julian Assange is the first shot in a new war directly against all of journalism, and certainly investigative journalism—against what Trump calls “the enemy of the people,” the news media. And especially the ones that he says publish “fake news,” like The Washington Post and The New York Times. In other words, this indictment is meant to criminalize journalism and especially investigative journalism. It’s a direct campaign against democracy in this country. That has nothing to do with Julian Assange’s character or practices or status.
It’s no coincidence that they chose, as the first defendant, a man who has in the last couple of years lost the support and even the respect of nearly everyone. He’s probably the most unpopular person in the media. The administration hopes that by using this law against an unpopular person, the press will dissociate itself from him, the Congress will not support him, the public will not support him. BUT THE FIRST AMENDMENT DOES NOT APPLY ONLY TO A RESPONSIBLE PRESS, to a press that checks all of its information carefully with the government and elsewhere. That’s not what the First Amendment is.
In the case of Assange, the fact that his revelations in 2016 clearly helped Trump win is deplorable. I’ll go further. The Mueller report in particular mentioned tweets by Julian Assange well before the 2016 campaign, saying that he thought Trump in balance was less dangerous than Hillary Clinton. He thought that Trump was a outsider who would stir things up and change policies that needed changing. I think that was a terrible judgment. The impact of his actions based on that idea are even more catastrophic than almost anyone could have foreseen.
SO I STRONGLY DISAGREE WITH HIS JUDGMENT ON THAT, AND HIS VALUES. But on the issue of freedom of press, if it were Steve Bannon facing extradition or prosecution on these charges, or Breitbart News or Fox News, I would be just as concerned and just as committed to opposing that—not because I would defend what they said, but because their right to say it is a foundation of our republic. So I WOULD CALL ON ALL THE PEOPLE WHO DISLIKE JULIAN ASSANGE AND SAY THOSE FEELINGS HAVE TO BE SET ASIDE. Opposing his extradition and prosecution is ESSENTIAL, because those acts will be followed by the prosecution of journalists who publish anything that embarrasses or criminalizes or exposes this administration. Not fighting this prosecution is just paving the way for journalism by handout. WE NOW FACE AN UNPRECEDENTED ASSAULT ON FREEDOM OF THE PRESS IN THIS COUNTRY.