The Prosecution of Julian Assange Is an Assault on the First Amendment

Some establishment journalists in the U.S. consider Julian Assange to be a criminal whose work doesn't fit into the same category as their own.

In April 2019, police dragged the WikiLeaks founder out of the Ecuadorian embassy where he'd lived for seven years after the U.S. government indicted him for allegedly helping Chelsea Manning access government databases. The New York Times editorial board applauded the move, writing that it "could help draw a sharp line between legitimate journalism and dangerous cybercrime," and that, "The [Trump] administration has begun well by charging Mr. Assange with an indisputable crime."

"Julian Assange is not a free-press hero," The Washington Post editorial board opined, "And he is long overdue for personal accountability."

Then in May 2019, the U.S. Department of Justice (DOJ) unsealed a second set of charges against Assange that, if they were to result in a conviction, could set a dangerous legal precedent that would put all investigative journalists who expose state secrets at risk of going to prison. Whether the media considers Assange one of their own, his fate could have a profound impact on the future of their profession.

The DOJ charged Assange with violating the Espionage Act of 1917 by publishing the information leaked by Chelsea Manning. If convicted, he could face up to 175 years in prison.

Edward Snowden, a former government contractor, has also been charged under the Espionage Act for leaking information to the media, which is how it's more commonly used. What's different about Assange's case is that the government is claiming that an individual unaffiliated with the government is guilty of a criminal violation for seeking out and publishing classified information, which is exactly what journalists do on a routine basis.

Even many of his biggest media critics are concerned by the additional charges.

"The Trump administration has just put every journalistic institution in this country on Julian Assange's side of the ledger, which, I know, is unimaginable," MSNBC's Rachel Maddow said on her show after the government revealed the Espionage Act charges. A little more than a month earlier, Maddow had devoted a segment to explaining why Assange's alleged offer to assist Chelsea Manning in cracking a password violated the rules of journalism.

"Really anybody who is concerned about press freedom should be deeply concerned about the prosecution of Julian Assange by the Trump administration," says Freedom of the Press Foundation co-founder Trevor Timm, who testified in Assange's U.K. extradition hearing. He says that Assange's conviction under the Espionage Act would set a precedent that could endanger any journalist publishing leaked information about the U.S. government.

"Maybe [some] journalists don't like Julian Assange, or they have criticized…his actions over the years. And that's all well and good, but what really matters [are] the acts which the Justice Department is trying to criminalize here," says Timm.

Timm says that a journalist like Bob Woodward, who's made a career publishing government secrets, would be endangered by such a precedent, pointing to Woodward's 2011 book Obama's Wars as an example. "[That book] is page after page of highly classified information…basically the most sensitive information that you could possibly imagine at a far higher classification level than anything WikiLeaks published."

Even the Watergate stories that Woodward published for the Washington Post with Carl Bernstein might be illegal if the Assange standard were applied, argues Timm, because Woodward and Bernstein sought out secret information from grand jurors during their reporting.

"Richard Nixon may never have had to resign," says Timm. "And [Woodward and Bernstein] quite possibly could have gone to jail."

The government claims that WikiLeaks crossed a legal line by posting a list of "Most Wanted" classified documents and providing the encrypted dropbox that Manning would use to submit the Iraq and Afghanistan war logs. But Timm says this too is standard journalistic practice.

"Major newspapers around the country and around the world are constantly asking sources to leak them information," says Timm, who points out that the New York Times took out a full-page advertisement for their SecureDrop box soliciting submissions, and that Timm himself published an article in the Guardian asking for leakers to release the classified CIA torture report in 2014.

One of the key accusations in the case against Assange is that he violated the Computer Fraud and Abuse Act by allegedly offering to help Chelsea Manning crack a password to a government database in an effort to cover her tracks.

On this count, many journalists have sided squarely with the government. But Timm says there's not much to the charge, and that it's not even clear Manning ever successfully cracked the password.

"I think this charge is potentially a sideshow trying to convince the judge that Assange is some sort of hacker and that [his case] doesn't relate to journalism," says Timm. 

While recognizing that Assange's case is vital to the cause of press freedom, many journalists have treated him with disdain, often portraying his years-long confinement in the Ecuadorian embassy as "self-imposed," a ploy to dodge sex crime charges in Sweden, which were dropped in November 2019.

Assange defended himself by claiming his reason for seeking asylum wasn't to avoid facing the sex crime charges but to avoid extradition to the U.S. where he would be indicted on Espionage Act charges that would seek to deny him First Amendment protections—a prediction that's been borne out.

The years of confinement have taken a toll on his mental and physical health. In 2018, doctors determined that Assange's condition was deteriorating after years of confinement and asked that he be allowed safe passage to a hospital. That request was denied.

In 2019, Nils Melzer, the U.N. special rapporteur on torture, described the conditions Assange has been subjected to as "psychological torture."

A decade ago, Assange was well-regarded in establishment circles. The standing ovation he received at a 2010 TED Talk is inconceivable today.

Assange created WikiLeaks in 2006 and leaked documents about the inner workings of Guantanamo Bay, vice presidential candidate Sarah Palin's emails, and bank fraud in Iceland.

The organization first grabbed widespread public attention with a video WikiLeaks would title "Collateral Murder." It showed footage from a U.S. Army Apache helicopter of soldiers gunning down more than a dozen people in Baghdad who weren't engaged in active combat, including two Reuters reporters.

The video generated international press and controversy. Assange told journalist John Pilger in 2010 that his intention in releasing the video was to expose to the American public "the 'another day at the office' [attitude of the soldiers], how routine it was."

The Iraq war logs, which followed, was the largest military leak in history, revealing that more than 15,000 civilian deaths hadn't been publicly reported. And it exposed the fact that the US military had ignored reports of torture, rape, and murder by Iraqi authorities and soldiers.

Then in November 2010, there was a leak of more than 3 million U.S. diplomatic cables, revealing corruption among various Arab governments, which helped inspire the Tunisian revolution that began the Arab Spring.

WikiLeaks also released thousands of pages of both CIA and Russian state surveillance techniques, exposed Saudi support for ISIS and undisclosed U.S. training of soldiers in Yemen, and helped provide Edward Snowden safe passage out of Hong Kong.

Assange says his guiding principle has been to grant regular citizens access to the information that powerful governments, corporations, and media gatekeepers wanted nobody to see.

"Someone's right to speak and someone's right to know create a right to communicate," Assange told Democracy Now journalist Amy Goodman at the Frontline Club in July 2011. "That is the grounding structure for all that we treasure about civilized life."

The 2016 leaks, which were damaging to the Hillary Clinton campaign and the Democratic Party, found Assange new allies on the political right and new critics on the left. Now–President Donald Trump declared, "I love WikiLeaks!" in October 2016, and MSNBC host Chris Matthews wondered in April 2019 whether Robert Mueller's report might reveal Assange to be a Russian intelligence asset.

But Assange, who once said he viewed the choice between Clinton and Trump as a choice between cholera and gonorrhea and who denies any connection to the Russian government, maintains that his commitment is to bringing to light true information regardless of which political regime it might damage.

"[WikiLeaks believes] that the best kind of government comes from a government that is scrutinized by the people when they have true information about how governments and corporations and other power actors in society actually behave," Assange told Fox News' Sean Hannity in January 2017.

Timm says WikiLeaks' early work, which went a long way towards revealing the nature of 21st century American warfare and surveillance and exposing corrupt authoritarian governments, is what even those who dislike Assange should remember as he faces life in prison.

"[WikiLeaks] did a lot of good for the world, especially in their early days when they were releasing all sorts of really important stories and really important investigations. I think people kind of forget because their mind is clouded by 2016," says Timm. 

Assange remains in a London prison, confined to his cell for 23 hours a day, according to WikiLeaks Editor in Chief Kristinn Hrafnsson.

He's awaiting a ruling from the British extradition court, which is scheduled for January 4. Government whistleblowers such as Edward Snowden, Daniel Ellsberg, John Kiriakou, and William Binney, along with more than 7,600 co-signers to an open letter, have called for Trump to drop all charges.

Throughout his career, however, Assange has been cynical about the notion that the democratic and judicial process can truly constrain government power and protect individual rights. People need to take matters into their own hands and protect themselves using encryption and other freedom-preserving tools.

"We will end up in a global, totalitarian surveillance society," Assange said on a 2012 episode of his online show. "Perhaps there will just be the last free-living people—those people who understand how to use cryptography to defend themselves against this complete, total surveillance."

Produced by Zach Weissmueller. Opening graphic by Lex Villena

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Music: "Reel," Melancholy," "Singularity," "Days Pass," and "Fall" by ANBR licensed through Artlist.io.