In its prosecution of WikiLeaks co-founder Julian Assange, the Biden administration is setting up one of the most important court cases on press freedom in decades. Did Assange break the law by publishing classified information that others may have stolen? If he did, then much of the work of investigative reporters—who often depend on secret government, individual or corporate information leaked by sources—might also be illegal.
The Justice Department got a win in December when a British appellate court ruled that Assange can be extradited to the U.S. The British High Court then declined this month to hear an appeal. Assange does have other avenues for appeal, but time is running out. The U.S. indicted him back in 2019 on charges related to WikiLeaks receiving and publishing thousands of military and diplomatic documents leaked in 2010. The U.S. charged him under the Espionage Act, under which no journalist or publisher has ever been convicted. If he’s found guilty of all charges, the 50-year-old Assange, who is an Australian national, could be sentenced to up to 175 years in prison.
The Justice Department’s pursuit of Assange under President Biden is one and the same as the actions it took under President Trump. This has surprised some press freedom, civil liberties and human rights groups, which expected that Biden would be a better ally on issues of press freedom. Some 25 such groups urged in a letter to Attorney General Merrick Garland in October that he drop the charges because they “pose a grave threat to press freedom both in the U.S. and abroad,” but the Biden administration is determined to plow ahead.
It was a different story the last time Democrats were in the White House. The Obama administration was often hostile toward press freedom and had a penchant for launching investigations into the reporting of national security information. But after years of examining whether to criminally charge WikiLeaks, it concluded that it could not without threatening common practices of investigative journalism protected by the First Amendment and without prosecuting news organizations such as The New York Times and The Washington Post. Those newspapers not only published documents provided by WikiLeaks but have also long reported confidential military, diplomatic and financial information they received themselves. The Pentagon Papers, the Panama Papers and Edward Snowden’s revelations about the National Security Agency’s mass surveillance program are cases in point.
Meanwhile, Trump’s thinking on Assange has changed. He once quipped that “there should be the death penalty or something for that” (the WikiLeaks disclosures), and some senior officials inside the CIA and the Trump administration debated assassinating or kidnapping Assange. But then, toward the end of Trump’s term, supporters of Assange began petitioning the president to pardon Assange, and he seemed open to the idea. Last December he addressed the issue: “I will say you have people on both sides of that issue. Good people on both sides, and you have some bad people on one side. … I was very close to going the other way”—that is, pardoning Assange and Snowden.
One theory for why Trump didn’t pardon them is that he was trying to avoid more Republicans voting to impeach and convict him in the congressional trial that followed the Jan. 6 riot.
How WikiLeaks Got Here
WikiLeaks began publishing news leaks in late 2006. The early ones included revelations that the U.S. military had been denying the International Red Cross access to some prisoners at Guantánamo Bay and that certain practices at the facility broke Geneva Convention protocols. In 2008, it released the contents of an email account belonging to then-vice presidential candidate Sarah Palin.
Although WikiLeaks released 10 million documents in its first 10 years, what made Assange front-page news was the leaks regarding the Iraq and Afghanistan wars, U.S. diplomatic cables, and Hillary Clinton’s and John Podesta’s emails when Clinton was secretary of state and then a presidential candidate and Podesta was her campaign chairman. One of the more harrowing disclosures was a classified U.S. military video in which U.S. personnel on two Apache helicopters fire on and kill around a dozen people, including two Reuters staff members. Some of the men attacked in the video appear to be armed but are not behaving aggressively. The U.S. initially maintained that all the casualties were “anti-Iraqi forces” or “insurgents.”
The leaks about Clinton revealed hypocrisy and unethical behavior and led to several resignations of high-level Democratic National Committee officials, including Chairwoman Debbie Wasserman Schultz. The emails showed that she had actively favored Clinton during the presidential primary and schemed against rival candidate Bernie Sanders. Donna Brazile, who became interim chair, later resigned from CNN, where she had been a contributor, after an email suggested she sent questions to Clinton’s campaign before a CNN town hall debate.
Speaking to Goldman Sachs
Among the WikiLeaks documents were the complete transcripts of Clinton’s three appearances at Goldman Sachs, which paid her $225,000 an hour. In talking to the Goldman executives, she admitted saying one thing publicly but doing another privately and recognized that “you go to Washington” to make a “fortune.” The leaks also exposed questionable actions, if not outright graft, at the Clinton Foundation.
Focused on raising money for Assange’s legal defense, WikiLeaks apparently began winding down last October and now seems to be out of business.
Since the inception of WikiLeaks, organizations devoted to civil liberties, press freedom and human rights have argued that any government infringement on WikiLeaks’ right to publish would violate the First Amendment. Many journalists and commentators across the political spectrum have also maintained that prosecuting WikiLeaks would mean that any journalist who received unauthorized information about governments, individuals or corporations from a source and then published it could be prosecuted.
This is exactly what Assange did: He was the recipient of hacked or pilfered documents, not the individual or organization that had stolen, hacked or otherwise illegally procured them. His supporters point to myriad examples of similar actions in the mainstream media. For instance, some of Trump’s tax returns were stolen and leaked to the Times, which published them one month before the 2020 election, much as WikiLeaks had published troves of damning Clinton emails one month before the 2016 election.
Daniel Ellsberg, who released the Pentagon Papers, tweeted in December that it “is the clear intent of the Trump and Biden administrations to see Julian Assange, who committed no crime, die in custody, under conditions amounting to torture.”
Prevailing in Sweden
However Assange’s case turns out, it will be the final chapter in a long fight with legal systems in three countries. In 2010, Sweden’s prosecutor’s office issued a warrant for Assange’s arrest on one charge of rape and one of molestation. That forced him in 2012 to seek refuge in Ecuador’s London embassy for seven years to avoid extradition to Sweden and later to the U.S. In 2015 a United Nations panel ruled that he had been “deprived of fundamental liberties against his will and the deprivation of Mr. Assange’s liberty is arbitrary and illegal.” Then, in late 2019, Sweden ended its investigation and dropped the apparently bogus charges.
Yet the charges were dropped too late. Seven months earlier Assange had been removed from the embassy and arrested. Since then he has been confined to the high-security Belmarsh prison in London and has not been well. He suffered a mini-stroke and had been observed “pacing his cell until exhausted, punching his head or banging it against a cell wall.” He said he had a “constant desire” to commit suicide, and during a routine search of his cell a prison officer found a concealed “half of a razor blade.” But on Wednesday he married his long-time partner, Stella Moris, in prison; they have two young children.
Chelsea Manning’s Role
While Assange sits in prison, Chelsea Manning—the former intelligence analyst in Iraq who was convicted of disclosing the secrets about the Iraq and Afghanistan wars, the diplomatic cables, the military video and other material to WikiLeaks—has been out of prison for most of the past five years, since President Obama commuted her sentence. In the U.S. Assange could stand trial on a count of conspiring to obtain classified defense information, a count of hacking a military computer and 15 charges of receiving and then disclosing that information. The Justice Department website claims that “Assange and others at WikiLeaks recruited and agreed with hackers to commit computer intrusions to benefit WikiLeaks.”
But the government has not been able to show that the release of the documents harmed anyone or that it jeopardized national security. And it’s doubtful that Assange conspired to hack U.S. computers, because Manning already had access. Instead, he unsuccessfully tried to generate a password through another account to hide Manning’s identity, not to access the files. Manning refused to testify against Assange, and no new evidence has come to light. (She was jailed for almost a year, in 2019 and 2020, and fined $265,000 for refusing to testify.)
Supporters argue that one reason the U.S. should drop the case is because an Icelandic court deemed a major witness against WikiLeaks, Sigurdur Thordarson, a “sociopath” and jailed him for sex crimes. Thordarson also admitted to lying to the FBI about Assange and WikiLeaks in exchange for immunity. Five other cases against him have been abandoned.
Whose First Amendment?
Some voices argue that WikiLeaks is not a publisher and Assange is not a journalist, so he should be prosecuted. But these distinctions don’t matter, because the First Amendment protects everyone and is not limited to people the news industry employs. First Amendment scholar Eugene Volokh at the University of California, Los Angeles, has shown that “throughout American history, the dominant understanding of ‘freedom of the press’ has followed the press-as-technology model.” This is to say the First Amendment “does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents).”
Many other scholars also argue that the right to enjoy “freedom of the press” privileges is not confined to people working as journalists at media organizations. As Jonathan Peters at the University of Georgia explains, “the First Amendment does not belong to the press. It protects the expressive rights of all speakers…To argue that the First Amendment would protect Assange and WikiLeaks only if they are part of the press is to assume (1) that the Speech Clause would not protect them, and (2) that there is a major difference between the Speech and Press Clauses.”
While Trump was still president, editors at top U.S. newspapers were a major part of this press freedom coalition, denouncing the Justice Department’s prosecution in May 2019 when a grand jury handed down the indictment. “The government is advancing a legal argument that places such important work in jeopardy and undermines the very purpose of the First Amendment,” said Marty Baron, then the executive editor of the Post. This “is a deeply troubling step toward giving the government greater control over what Americans are allowed to know,” warned Dean Baquet, executive editor of the Times. Nicole Carroll, the editor-in-chief of USA Today, called the indictment “a chilling attack on press freedoms.”
Other mainstream outlets chimed in. MSNBC’s Rachel Maddow warned that the Trump Justice Department, by charging Assange with espionage, “would fundamentally change the balance of power between the people and our government.” The New Yorker published Masha Gessen’s “Charging Julian Assange Under the Espionage Act Is an Attack on the First Amendment” and John Cassidy’s “The Indictment of Julian Assange Is a Threat to Journalism.” In The Atlantic Adam Serwer wrote, “Going after the WikiLeaks founder for publishing state secrets places journalists at risk.”
But these publications and most of the rest of the U.S. media have avoided criticizing the Biden administration’s continued prosecution of Assange after spending four years haranguing Trump about press freedom. Some, such as MSNBC, have switched to attacking Assange. Their support for the Defense Department, the CIA and the rest of the security establishment that Assange exposed—and for the Obama-Clinton-Biden wing of the Democratic Party aligned with the security state—often outweighs their commitment to press freedom and civil liberties.
A Hero Who’s Hard to Like
Julian Assange may not evoke much sympathy. He can appear creepy and egotistical, and even his most ardent supporters believe that he should have been more careful and used better judgment in publishing unredacted documents. Crusaders testing the limits of constitutional freedoms are often flawed characters.
But setting aside personality and politics, WikiLeaks under Assange was the legal publisher of what may have been the most consequential journalistic revelations in decades. To the benefit of the public, it revealed corruption, crimes and misuse of power at the highest levels of government and business. If Biden drops his pursuit of Assange, he will be making a bold statement in support of press freedom and civil liberties in the U.S. and abroad. On the other hand, endlessly prosecuting this case continues to make America look hypocritical as it decries the human rights violations of its adversaries in an increasingly authoritarian world.