Assange May Have Committed a Crime, But the Espionage Act Is the Wrong Law to Prosecute

Is Wikileaks leader Julian Assange a journalist? If journalism is a profession, it is because, like other professions, it has standards and a code of ethics. As an example, a journalist may make use of information that she or he obtains from any source, but a journalist would not participate in the theft of information. So, I’m skeptical that Assange is a journalist.

The question of whether he had a role in the theft of information from the U.S. government or from the Democratic National Committee or from Hillary Clinton’s campaign chair, John Podesta, is unclear.

However, whether or not Assange qualifies as a journalist does not mean that he lacks rights under the First Amendment. Like freedom of speech, peaceable assembly, religion, and the right to petition the government, the First Amendment guarantees freedom of the press and guarantees it to everyone. It is not only members of “the press” who are protected in their right to publish by the Constitution.

Because Assange is entitled, like everyone else, to freedom of the press, the U.S. government should not prosecute him for the information that he disseminated. But if he participated in a theft to obtain that information, calling himself a journalist does not absolve him of responsibility for this crime.

Unfortunately, the decision by the Department of Justice to prosecute Assange under the Espionage Act gets everything wrong. On May 23, the Justice Department indicted Assange on 17 counts of violating the Espionage Act for his part in getting his hands on and publishing secret military and diplomatic cables in 2010.

Some background on the law in question: The Espionage Act was passed in 1917 as the United States was entering World War I. The law made it possible to prosecute and punish those thought to be disseminating information intended to interfere with the military success of the United States in the war. The law criminalized actions that would cause “insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States” or “obstruct the recruiting or enlistment service of the United States.”

That is, the emphasis was on the publication of information that would harm the United States in an armed conflict, not on the manner in which the information was obtained. The application of the Espionage Act in the case of Assange appears to violate the Constitution’s freedom of the press guarantee.

The U.S. government prosecuted many hundreds of Americans under the Espionage Act during the World War I period resulting in five-, 10- and even 20-year prison sentences for peaceful opposition to American entry into the war or for opposition to the draft. Those prosecutions took place in an era before the U.S. Supreme Court began to invoke the First Amendment to protect freedom of the press. These prosecutions are now rightly regarded as contributing to one of the lowest points in American history in respect to civil liberties.

The use of the Espionage Act to prosecute and to try to punish Assange is a reversion to that discredited period in American history. It is both absurd and a sign of how little regard the current leadership of the Department of Justice has for freedom of the press.

An earlier indictment alleged that Assange assisted the former Army intelligence analyst Chelsea Manning in breaking into a government computer to steal documents. If the government can prove that charge, it could provide a legitimate basis for prosecuting Assange. The decision by the Justice Department to proceed under the Espionage Act, however, suggests that it may lack the ability to prove the theft of documents.

I am not an admirer of Assange and do not want to celebrate him as a champion of freedom of the press. But if concern for civil liberties is at issue, it should be recognized that, as is often the case, rights must be defended for scoundrels as well as for heroes.

Photo by Jack Taylor/Getty Images

 

About the Author(s)

Aryeh Neier

President Emeritus of Open Society Foundations, founder and former Executive Director of Human Rights Watch, and former Executive Director of the ACLU.