The arrest of WikiLeaks founder Julian Assange in London raises the possibility — make that the likelihood — that he will be prosecuted in the United States for revealing military secrets provided to him by former Army private Chelsea Manning. What does this mean for freedom of the press?
As I argued in The Guardian in 2010, when it appeared that the Obama administration was prepared to bring charges against Assange, there was no practical or ethical way of drawing a distinction between WikiLeaks and mainstream news organizations such as The New York Times, The Washington Post and The Guardian, all of which have published military secrets that were leaked to them, most famously the Pentagon Papers.
The principle that U.S. officials have generally followed is that leakers such as Manning, Daniel Ellsberg, Reality Winner and, if he is arrested, Edward Snowden may be prosecuted, but journalists are left alone — even though they could at least theoretically be charged under the World War I-era Espionage Act. The government has tried to argue that WikiLeaks colluded with Manning in his theft of documents, although even then it’s hard to see how that goes beyond normal journalist-source conversations.
Of course, a lot has happened since 2010. The First Amendment would almost certainly not protect Assange if he is charged with being an agent of the Russian government in connection with the leak of Hillary Clinton’s emails in 2016. But based on what we knew as of 2010, I think this column holds up rather well.
WikiLeaks and the First Amendment
An Obama administration prosecution of Julian Assange over the embassy cable leaks would be an assault on press freedom
Like all of us, I am trying to make sense of the intelligence agencies’ report in which they found that the Russian government, going right up to the Shirtless Horseman himself, interfered in the 2016 election on Donald Trump’s behalf.
I have read all of it. And it is hard to overlook the lack of any actual evidence, which is apparently laid out in classified versions of the report. As a result, a number of observers are erecting “caution” signs to guard against anyone drawing a definitive conclusion. Scott Shane writes in The New York Times:
What is missing from the public report is what many Americans most eagerly anticipated: hard evidence to back up the agencies’ claims that the Russian government engineered the election attack. That is a significant omission: Mr. Trump has been expressing skepticism for months that Russia was to blame, variously wondering whether it might have been China, or a 400-pound guy, or a guy from New Jersey.
On Twitter, too, I’m seeing skepticism from the right and, of course, from the ubiquitous Glenn Greenwald, who’s been going off on it for hours. Here’s one example:
This new report: 1) literally half of it is about RT; 2) contains same assertions made multiple times; 3) includes no evidence for claims.
But I think focusing on the lack of evidence overlooks the central reality: Reams of evidence were put before us over the course of many months during the presidential campaign. Consider what we know for a fact:
Emails were stolen from the Clinton campaign and the Democratic National Committee.
Those emails landed at WikiLeaks, whose leader, Julian Assange, is clearly (and at the very least) a Russian ally.
WikiLeaks published multiple emails that were embarrassing to the Clinton campaign and none that reflected badly on Trump.
So yes, in one sense the intelligence agencies offered no evidence for their assertions. But in another, more important sense, we’ve already seen the evidence. The main role of the CIA, the FBI, and the NSA was to tell us that they agree, that we’re not crazy, and what we all saw play out was exactly what it appeared to be.
Did Russian interference cost Clinton the election? As Sam Wang has written at the Princeton Election Consortium, FBI Director James Comey’s horrendously misguided last-minute decision to reopen the investigation into Clinton’s private email server almost certainly put Trump over the top. Wang writes:
Opinion swung toward Trump by 4 percentage points, and about half of this was a lasting change. This was larger than the victory margin in Michigan, Pennsylvania, Florida, and Wisconsin. Many factors went into this year’s Presidental race, but on the home stretch, Comey’s letter appears to have been a critical factor in the home stretch.
Russian interference was less of a factor than Comey’s letter. But it nevertheless kept the media’s and the public’s attention on Clinton and emails, even though questions about her server and hacking by the Russians had nothing to do with each other. We can’t know for sure, but my sense is that Comey’s actions by themselves elected Trump, and that Russian subterfuge added to the damage.
What happens now? If it could somehow be shown that Trump himself had colluded with the Russians, he might face impeachment and even prosecution on espionage charges. The word treason tends to get thrown around way too lightly, but a Trump-Putin alliance to steal the election might very well qualify.
Such actions would require not just persuasive evidence that Trump was involved but also principled members of the Republican Congress and of Trump’s Justice Department. I wouldn’t hold my breath.
Legendary First Amendment lawyer Floyd Abrams delivered the Richard S. Salant Lecture on Freedom of the Press on Thursday evening at Harvard’s Shorenstein Center. And it was something of a surprise.
Rather than railing against the evils of government censorship, Abrams instead chose to focus on situations in which he believes the media have abused their freedoms. He was especially criticial of Julian Assange and WikiLeaks — not a new stance for him, but nevertheless counterintuitive given Abrams’ fierce defense of the First Amendment.
I put together a Storify about Abrams’ talk, which you can view by clicking here.
The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.
The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.
Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”
In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.
American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.
The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.
But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.
Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.
More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times‘ potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:
So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.
This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.
Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.
President Obama’s emerging strategy to prosecute WikiLeaks and its founder, Julian Assange, over the leaked State Department cables amounts to a potentially dangerous assault on freedom of the press. Or so I argue in the Guardian.
My Northeastern colleague Nicholas Daniloff, a former foreign correspondent for U.S. News & World Report and UPI, was interviewed by the university press office earlier this week about the WikiLeaks story.
Daniloff offers some sharp insights, arguing that the document dump was more good than bad, and that the New York Times acted responsibly by giving the White House an opportunity to request redactions — some of which the Times went along with, some of which it didn’t. Daniloff adds:
[O]ver the long run, a great deal of this will be forgotten or swept under the rug, although older diplomats may well tell young diplomats, “Be careful with the Americans. They are so leaky that what you say may eventually come out. Be discreet; after all, you wouldn’t make copies of your love letters would you?”
Governments must finally acknowledge that secrets shared with millions of “cleared” officials, including lowly army clerks, are not secret. They must decide that the random rubber-stamping of millions of papers and computer files each year does not a security system make.
Meanwhile, Interpol has heightened its efforts to arrest WikiLeaks founder Julian Assange on sexual-assault charges. This Times story makes it sound like the agency isn’t trying very hard. It makes you wonder whether Western governments truly want to bring Assange to justice — or are just trying to discredit him.
The latest WikiLeaks document dump gives us all much to think about. Unlike the earlier materials, about the wars in Iraq and Afghanistan, the latest revelations might actually make it more difficult for the United States to conduct foreign policy.
Is the world safer or less safe today now that we know King Abdullah of Saudi Arabia has urged the U.S. to take out Iran’s nuclear-weapons-in-the-making? Or doesn’t it matter? And would the documents be seen in a different light if the New York Times, the Guardian et al. had done nothing and let WikiLeaks release them on its own accord?
Like most journalists, I want to see as much information out there as possible. When government officials talk about the need for secrecy, I’m naturally suspicious. Yet as Timothy Garton Ash observes in the Guardian, secrecy is surely a tool that the State Department needs to use on occasion. He writes:
How can diplomacy be conducted under these conditions? A State Department spokesman is surely right to say that the revelations are “going to create tension in relationships between our diplomats and our friends around the world.” The conduct of government is already hampered by fear of leaks. An academic friend of mine who worked in the State Department under Condoleezza Rice told me that he had once suggested writing a memo posing fundamental questions about U.S. policy in Iraq. “Don’t even think of it,” he was warned — because it would be sure to appear in the next day’s New York Times.
U.S. Rep. Peter King, R-N.Y., sounds as though he wants WikiLeaks founder Julian Assange to be tried and executed. I think we can safely dismiss rants like that while still wondering whether there was a legitimate need to keep these matters secret.
I have not yet come up with an answer to that question. What I do know is that information technology now makes it possible for a group like WikiLeaks to dump far more dangerous documents than these into the public realm. Say what you will about traditional news organizations like the Times, but at least they give the government an opportunity to make a case as to why such documents shouldn’t be released.
One thing’s for sure: if the government is serious about keeping its secrets, it needs to do a much better job of protecting them.
Why did WikiLeaks work with traditional news organizations rather than go it alone in releasing the Afghanistan war logs?
In my latest for the Guardian, I argue that WikiLeaks founder Julian Assange learned from the way he handled the Apache helicopter video earlier this year that sometimes it’s better to be Daniel Ellsberg than Ben Bradlee. And that Stephen Colbert was right.