If the Justice Department puts Julian Assange on trial for conspiring to hack into a government computer — and nothing more — his prosecution might be welcomed.
If the Justice Department, however, uses this single criminal charge as a backdoor way to punish Assange for publishing secret documents obtained by others, which is what we fear, we may be in for a grave attack on freedom of the press.
The danger is the setting of a legal precedent that would extend beyond curbing the First Amendment rights of those like Assange, the WikiLeaks founder who is so easy to disdain. The Trump administration will have achieved a narrowing of the definition of who’s a “journalist” that is contrary to the best interests of an open society.
The work of nontraditional online operations such as WikiLeaks, which trades in publishing government secrets, will be suppressed, but so too will the work of mainstream media organizations such as the New York Times, Fox News and the Chicago Sun-Times.
The government will be putting a brick on the ability of journalists to do one of their most important jobs — expose government secrets for the sake of the public good.
Assange was forced out of the Ecuadorian Embassy in London on Thursday, where he had taken refuge in 2012 to duck sexual assault charges in Sweden. He was arrested by British police. Now he faces possible extradition to the United States on the one charge, related to the publication of tens of thousands of secret government documents.
More than a year ago, a grand jury in Washington charged Assange with conspiring with Chelsea Manning, an Army intelligence analyst, to break into a classified Pentagon computer. The criminal charge — essentially, attempted hacking — was revealed Thursday after Assange’s arrest.
We’re not sure Assange has a real pal left in the United States.
In 2010, he pleased Americans on the left but infuriated many on the right by releasing classified files that, among other revelations, documented the civilian death toll in the war in Iraq, the complicity of an American military contractor in a child-trafficking operation in Afghanistan, and the alleged torture of Iraqi prisoners.
Then, during the 2016 presidential campaign, Assange pleased Americans on the right but infuriated the left by leaking thousands of emails that had been obtained from hacked Democratic National Committee computer systems. Russian operatives carried out the hacking, according to multiple investigations, as part of an effort to tilt the election toward Donald Trump.
As admirable or odious as one might find such actions by Assange, they fall within the boundaries of constitutionally protected American journalism. News organizations almost regularly obtain secret government information from sources and run with it.
The classic case, which led to a landmark Supreme Court decision protecting the practice, was the New York Times’ decision in 1971 to publish the classified Pentagon Papers, a secret history of the United States’ military involvement in Vietnam.
If Assange did, in fact, conspire with Manning to hack into a government computer, that’s not journalism — that’s a kind of cyber breaking and entering. He should be held to account just as Manning was. She served 7 years of a 35-year sentence before President Barack Obama commuted the sentence.
But the language of the indictment against Assange suggests that the Justice Department may be throwing too wide a lasso, trying to rope in and criminalize a legitimate practice of journalism.
“Assange knew that Manning was providing WikiLeaks with classified records containing national defense information of the United States,” the indictment states. “Assange was knowingly receiving such classified records from Manning for the purpose of publicly disclosing them on the WikiLeaks website.”
To which we would ask: So what? The New York Times, in receiving the Pentagon Papers from an anonymous source and publishing them, did exactly the same thing.
As the Supreme Court ruled in 2001 in the case of Bartnicki v. Vopper, the First Amendment protects publishers against legal liability for publishing political information that is lawfully obtained, even if the publisher’s source obtained the information by illegal means.
Why have the courts taken such a staunch stand in defense of the First Amendment? Because our nation’s founders made clear their belief in a free press as a check against a tyrannical government. And history has validated that belief.
The publication of the dryly pessimistic Pentagon Papers, for one, was pivotal in turning public opinion against the Vietnam War.
Is Assange some kind of journalist? Or has he been working as an agent of a foreign power, Russia?
And are President Trump and his Justice Department even on the same page on this?
Our worry, given the president’s almost daily attacks on a free press, is that it’s all the same to Trump administration.
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