This article is co-published with The Bulwark.
Boy, did I ever get this wrong. Back in mid-April, when the Department of Justice unveiled an indictment of Julian Assange, the proprietor of WikiLeaks, I wrote an article for The Bulwark that bore the title, The Arrest of Julian Assange is Not Bad for Journalism.
The Department of Justice has now unveiled a new superseding indictment, hitting Assange with 17 new charges, some of which are very, very bad for journalism.
In April, I wrote:
[T]he Justice Department seems to have tailored the indictment in way that will do minimal collateral damage. Assange faces a single charge of conspiracy to commit computer intrusion. The “overt acts” that comprise the crime involve various phases of hacking. Almost all journalists and defenders of the free press agree that hacking into government computers to obtain secrets—a form of breaking and entering to commit outright theft—is not a form of newsgathering that should enjoy First Amendment protection.
The trouble is, the superseding indictment seems to have been tailored in a way that will do a lot of collateral damage, if not the maximum possible amount. The computer intrusion charge, which was the sole count in April, is now accompanied by charges that Assange violated the Espionage Act.
The obvious problem for journalism comes in the new indictment’s opening paragraph and things get worse from there as one cuts from the skin down into the meat.
Assange, the indictment begins by way of summary, “encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.”
These three activities are exactly what perfectly respectable journalists, particularly those in the national security sphere, do with great frequency. They talk to sources and encourage those sources to tell them important government secrets. If they then learn those secrets, they disseminate them to the public. And they do this in a pattern: The New York Times, for example, has been publishing seven days a week for more than a century, with government secrets all over its pages.
To avoid sweeping the press up in the net it has constructed for Assange, the Justice Department is asserting that Assange is “not a journalist.” But this pronouncement is worthless. A “journalist” is not a licensed profession. The fact that the Department of Justice says he isn’t one has no bearing on whether the government could go after journalists on the same basis in the future. The charges against Assange include the unlawful “receipt” of government secrets. As already noted, journalists receive secrets every day of the week. The Justice Department’s caveat does nothing to alter the fact that a precedent is being set.
But perhaps the precedent is a good one. After all, why should the press be in the business of publishing secrets? The government classifies things for a reason, typically to protect some aspect of national security.
Indeed, back in 2006, after the New York Times revealed details of the National Security Agency’s Terrorist Surveillance Program (TSP), I made the argument that the Times, and its top editor Bill Keller, should be prosecuted under a statute that explicitly made the publication of communications intelligence a crime. After all, I reasoned, the TSP was a program that was designed to stop a second 9/11 and the Times had blown the program, tipping off jihadists worldwide that their communications were being tapped.
And there are other costs to leaks. In effect, leaks are an attack on democracy itself. When government bureaucrats, elected by no one, take it upon themselves to leak secrets to journalists—who are also private actors elected by no one—they are usurping a power that our democracy properly gives to elected officials. It is ultimately the president and his appointees—and the orderly process that has been established according to law—that should determine what should and should not be secret.
Leaks also injure the government’s capacity to deliberate. Whenever hard calls are made, like deciding, say, to launch a mission to kill Osama bin Laden, there is the constant fear that the planning will leak. This compels decision-makers to keep the circle of those in the know as small as possible, which also deprives them, even as they make the decisions of life and death, of the wealth of expertise that exists down below in the bowels of the bureaucracies.
Leaks are thus very bad, and those who leak and those who publish leaks should be punished by law, or at least so the argument goes.
There’s just one problem with that argument: Our government is constantly overclassifying and misclassifying material that is completely innocuous. Secrecy can also be misused to bury incompetence and corruption. If the government were empowered to put a secrecy stamp on anything it wishes, it would become far less accountable. As Judge Murray Gurfein put it in the Pentagon Papers case, “a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”
Thus, if there was a case for prosecuting the Times back in 2006, it must be weighed against the costs to our freedoms. I abandoned my views about prosecuting the Times some years ago as I delved deep into the subject in the course of writing a book: Necessary Secrets: National Security, the Media, and the Rule of Law.
And as we have come to see in the Trump era, secrecy is a prime weapon in the arsenal of the most corrupt and lawless administration in our history. Right now, the Trump administration is attempting to conceal a wealth of information relating to the Mueller investigation and Donald Trump’s potential financial conflicts of interest, among other things. Along with the Congress, the press plays an essential role in prying those secrets loose and putting them before the public.
Which brings us back to the new indictment of Julian Assange. The supposedly super-secretive Bush administration threatened the New York Times, but never took any action. Presumably, officials recognized that it would a costly endeavor in a number of ways, including reputational. As the maxim goes: Never pick a fight with those who buy ink by the barrel.
The Obama administration picked up where the Bush administration left off and embarked on a very aggressive crackdown on leaks. Part of that crackdown entailed measures that tread on press freedom. A journalist, James Rosen of Fox News, was named an unindicted coconspirator in a case that ended up sending a government official to jail. The administration also covertly seized, through subpoenas issued to telephone-service providers, two months of call records for more than 20 office, personal, and cellular lines of individual reporters and an editor at the Associated Press. But neither Bush nor Obama ever employed the Espionage Act to prosecute journalists for their part in disseminating leaks; this was evidently a bridge too far.
With the indictment of Assange, that is now a bridge that the William Barr Justice Department has crossed. By my lights, Julian Assange is an evildoing enemy of the United States. But there were ways to prosecute and punish him under law that did not have such terrible ramifications for our free institutions. The Espionage Act has always been, as it was once famously described, a loaded gun pointed at the press. That gun is now in the process of being fired.
One of the most intensely debated questions of the Trump era is whether our free institutions would survive under the great strain under which they are being placed by a reckless president. The Espionage Act charges against Assange are an important landmark in that discussion. One of the walls that keeps us free is starting to crumble.