In the last 24 hours the Department of Justice has accidentally made public that it has a sealed indictment against Wikileaks founder Julian Assange. We do not yet know what the charges are against Assange. We do know that the US government has considered prosecuting Assange since 2010 when Wikileaks released diplomatic cables and evidence of US war crimes in Iraq. Under the Obama Administration, the Department of Justice seriously considered charging Assange under the archaic and draconian Espionage Act. However, while the Obama Administration normalized the practice of charging whistleblowers who provided information to the media with espionage even they considered charging Wikileaks under this act a bridge too far. The Department of Justice ultimately concluded there was no way to prosecute Assange and/or Wikileaks for publishing information without endangering press freedoms widely.
The Trump Administration has demonstrated an unrestrained contempt for journalists, whistleblowers, and truth tellers. Charging an individual with publishing information–even classified information–would be an unprecedented act of aggression against press freedom. Defending Rights & Dissent has long opposed the use of the Espionage Act against whistleblowers or journalists and called for it to be amended or repealed.
Defending Rights & Dissent is aware that Assange was accused of sexual assault in Sweden. We understand that these are serious allegations and that they require a serious investigation by Swedish authorities. We also are aware that Assange has made comments or held political associations that many of our supporters find odious or reprehensible. However, none of that alters the fact that any prosecution of anyone for publishing information of interest to the public is an assault on journalistic freedom.
An attorney for the the New York Times has publicly stated that there is no way to charge Assange or Wikileaks under the Espionage Act that does not set a precedent that would allow the New York Times to be similarly prosecuted. Afterall, papers like the New York Times and the Washington Post have published classified information made available to the public by Wikileaks. From the Pentagon Papers to the Snowden revelations, journalists have always reported on classified information when it was in the public interest to do so.
The Espionage Act, which is over 100 years old and predates the modern system of classification, contains a number of shocking provisions that on their face could be used to criminalize First Amendment protected journalism. While various presidential administrations have toyed with using them against the press, none have ever gone through with it. The Supreme Court has also ruled that the First Amendment gives journalists the right to publish information that was illegally obtained by a third party, so long as they themselves did not illegally obtain it. This has been widely understood to render an Espionage Act prosecution of a paper for printing the Pentagon Papers, Iraq War Logs, or Snowden revelations unconstitutional. An Espionage Act prosecution of Assange would be a test case meant to overturn this precedent and criminalize journalism.
Even prior to this news Defending Rights & Dissent had renewed its commitment to challenging Espionage Act abuses. We are working to build a campaign of supporters of whistleblowers rights to call for the Espionage Act to be amended to remove the provisions that have been used to persecute whistleblowers and menace journalists. In the coming months, we will make more information about this campaign public.
Until then, we will continue to oppose any and all uses of the Espionage Act against those who give information to the media or those in the media who publish said information.