The superseding indictment of Wikileaks founder Julian Assange has again sent First Amendment guardians to the ramparts, when what’s needed is a calm discussion of what threat this use of the Espionage Act actually poses to a free and unfettered press.
Some media analysts are worried that the Trump administration is prosecuting the reporting and publishing of news, arguing that what Assange is being accused of is not different than what an investigative reporter does at The Washington Post, The New York Times or some other outlet. They add that publications, too, could be in jeopardy for distributing national defense information to people not authorized to receive it.
In dealing with the new Assange indictment, I have re-read the Espionage Act and focused on the element of intent, which under that law, 18 USC 793(a), reads, “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation…” (emphasis added)
Legitimate reporters and publications don’t gather information with the intent to injure the U.S. or advantage any foreign government, although I assume the present Justice Department believes it has enough evidence to prove to a jury that Assange did act with those intentions.
However, when I read the new Assange indictment, I noticed beginning with Count 1, “Conspiracy to Obtain, Receive, and Disclose National Defense Information,” in quoting the relevant element of the Espionage Act, the government indictment refers to 18 USC 793 (e). That section refers not to obtaining, but rather to possession and communicating national defense information and leaves out the word “intent,” using only “with reason to believe that the information was to be used…”
That could open up a different question for legitimate reporters since “reason to believe” has always seemed to me broader, more subjective, than just “intent,” since the latter would require some evidence related to the individual’s own personal mindset.
Another caution on the publication side rests on an element the media hates to mention — that in both the Pentagon Papers case [New York Times Co. v. United States, 403 U.S. 713, 1971] and in Branzburg [Branzburg v. Hayes, 408 US 665, 1972], some Supreme Court Justices left open the question of whether knowingly publishing real secrets could be considered a criminal act. In my mind, that has always meant journalists should be more careful than some are in rushing to publish classified information they obtain through legal means.
I offer these views on legal issues related to the media based on my 40 years of experience as a journalist, and what I learned attending Georgetown Law School, from which I graduated with a J.D. in May 2001. Law school also reinforced my reporting habit of, when possible, finding and reading original documents, or what my former editor, the late Ben Bradlee, called “the agate type,” rather than just depending on what sources have said.
During the late 1990s, I studied criminal law while reporting and writing national security stories for The Washington Post, an experience that offered me additional insight into what was at stake as we sought information from government officials. I remember telling colleagues after a meeting in the fall of 2002, in which we divided up to see who could get sources to provide undisclosed details of a new TOP SECRET National Intelligence Estimate on Iraq, that the first one of us who made a phone call to a government official to find that information was opening the way for all of us to possibly be indicted for conspiracy to violate the Espionage Act.
My remark drew smiles. No one saw that what they were setting out to do could ever be considered criminal, since we all were working under the assumption the public needed to know what was really motivating the Bush administration’s invasion plans for Iraq. At the same time, each of us had his or her own idea about the need and ways to protect the identity of any confidential source, who may provide classified information.
Media outlets often wrestle with decisions about whether to publish classified information and what potential harm could be done in doing so. In making these decisions, editors usually weigh the government’s claim that lives may be put at risk, if such a position is made known. The last three counts of the new Assange indictment refer to publication of “names of individuals who risked their safety and freedom by providing information to the United States and our allies…”
In fact, when Assange in 2010 first released the documents he had obtained from then-Bradley, now-Chelsea Manning, to The Guardian, he left it to the newspaper editors to decide whether to publish or not publish names, and, for the most part, they did not. Assange’s May 23 indictment for publishing relates to his alleged direct release of the documents to his own WikiLeaks website without removing sensitive names, thus “publishing them directly to the internet,” according to Counts 15, 16 and 17 in the indictment.
John Demers, head of the Justice Department’s national security division, on May 23, told reporters that it was Assange’s publication of these documents, which identified “the names of human sources…who were assisting U.S. forces in theater,” that the government “alleged to have created grave and imminent risk to their lives and liberty.”
My own test when it comes to dealing with what appears to be classified information is to determine three things: Is the information true? Is it something the public needs to know or should know? What harm, if any, would publication cause to individuals or government plans or policies?
Whistleblowers from the national security area are often important sources of classified information. But their information requires the same kind of careful review that a journalist needs to undertake with his own reporting. Many whistleblowers are sincerely concerned about issues they describe or in documents they produce. But some may have only one element of a broader picture, or they are biased, trying to settle a score, or they may want to appear to be more involved in major events than they actually are.
Sources who provide me with classified information, whose intentions are clearly to shed light on some issue, correct a wrong impression, or expose illegal or questionable activities, deserve my protection because they are taking a chance that could lose them their jobs or cause them to face legal jeopardy.
I have come to believe that as a journalist, I should face some level of legal jeopardy as do my sources. The threat of legal jeopardy serves as another check to make sure before publication that any material potentially harmful to individuals or a government policy doesn’t get published just because it’s classified.
I have a long history of believing journalists are like other citizens when it comes to the law. For example, I oppose media lobbying Congress for a federal shield law, and instead believe journalists should appear when subpoenaed by grand juries, special counsels, and even private lawyers pressing civil cases.
As Justice Byron White put it in Branzburg, “Citizens generally are not constitutionally immune from grand jury subpoenas, and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence.” White went on, “Official harassment of the press undertaken not for purposes of law enforcement, but to disrupt a reporter’s relationship with his news sources would have no justification.” That seems to me protection enough. At least that’s the proper place to draw the line, and courts must ensure the government does not cross it.
My view, and it may be an outlier, has been that journalists should appear when called, not try to quash a subpoena solely on the grounds that they are immune because of their profession. The nature of the questioning will reveal the purpose of inquiry. When it’s necessary to protect sources, a journalist should invoke the First Amendment. Then, like any other citizen, a journalist can argue their reasons in court and abide by the judgments, assuming the right to appeal.
I did that in 2006, in the Wen Ho Lee civil case. I was subpoenaed in that case. At deposition, I refused to disclose sources, citing the First Amendment over 100 times, and later was found in contempt by a district court judge. A fine was stayed while we appealed. I believed then, and believe now, we could have won on appeal, but this case was eventually settled during the appeal process.
In 2007, in the I. Lewis (Scooter) Libby criminal case, when contacted by Special Prosecutor Patrick Fitzgerald, my attorney explained I would not testify until my source came forward to Fitzgerald. Eventually my source did disclose himself to the special prosecutor, and then gave me permission to speak to him as well. Even without my source’s permission, once he disclosed to Fitzgerald that he was my source, I would have discussed what he had told me. As a result, I gave a deposition to the prosecutor, but was never asked to identify my source because Fitzgerald already knew who he was.
One unexpected result was that I ended up being a witness for the defense at Libby’s trial.
These experiences have obviously colored my views. But I believe the media is much too quick in the face of government actions, such as the Assange indictment, to cry wolf before thoroughly examining the situation.
Assange may or may not ever be tried in the United States, as John T. Nelson suggested in his analysis for Just Security. Assange’s extradition case in the British courts could be very complicated. So the superseding indictment could be, as Nelson put it, a “symbolic gesture [which] intends to deter future WikiLeaks-like activities or to intimidate traditional journalists (or both).”
Too often, journalists have vocally complained that some government action directed at the media will “chill” government sources from leaking information to the media. It never really has up until now and I doubt if it ever will.