WikiLeaks founder Julian Assange today sits in the Belmarsh High Security prison in southeast London. Not just for his sake but for everyone’s, we now have to hope he’s never moved from there to America.
The United States filed charges against Assange early last month. The case seemed to have been designed to assuage fears that speech freedoms or the press were being targeted.
That specific offense was “computer hacking conspiracy” from back in 2010. The “crime” was absurdly thin, a claim that Assange agreed (but failed, apparently) to try to help Chelsea Manning develop an administrative password that could have helped her conceal identity as she downloaded secrets. One typewritten phrase, “No luck so far,” was the damning piece of evidence.
The troubling parts of that case lurked in the rest of the indictment, which seemed to sell normal journalistic activity as part of the offense. The government complained that Assange “took measures to conceal Manning as the source of the disclosure.” Prosecutors likewise said, “Assange encouraged Manning to provide information and records from departments and agencies of the United States.”
The indictment stressed Assange/Manning were seeking “national defense information” that could be “used to the injury of the United States.” The indictment likewise noted that the pair had been guilty of transmitting such information to “any person not entitled to receive it.”
It was these passages that made me nervous a month and a half ago, because they seemed to speak to a larger ambition. Use of phrases like “national defense information” given to persons “not entitled to receive it” gave off a strong whiff of Britain’s Official Secrets Acts, America’s Defense Secrets Act of 1911 (which prohibited “national defense” information going to “those not entitled to receive it”) and our Espionage Act of 1917, which retained many of the same concepts.
All of these laws were written in a way that plainly contradicted basic free speech protections. The Espionage Act was revised in 1950 by the McCarran Internal Security Act, sponsored by Nevada Senator Pat McCarran (who incidentally was said to be the inspiration for the corrupt “Senator Pat Geary” character in The Godfather). The change potentially removed a requirement that the person obtaining classified information had to have intent to harm the country.
There was a way to read the new law that criminalized what the Columbia Law Review back in 1973 (during the Pentagon Papers controversy) called the “mere retention” of classified material.
This provision buried in subsection 793 of the Espionage Law has, since passage, been a ticking time bomb for journalism. The law seems clearly to permit the government to prosecute anyone who simply obtains or receives “national defense” information. This would place not only sources who steal and deliver such information at risk of prosecution, but also the journalists who receive and publish it.
If the government ever decided to start using this tool to successfully prosecute reporters and publishers, we’d pretty quickly have no reporters and publishers.
I’m not exaggerating when I say virtually every reporter who’s ever done national security reporting has at some time or another looked at, or been told, or actually received copies of, “national defense” information they were technically “not entitled to receive.”
Anyone who covers the military, the intelligence community, or certain congressional committees, will eventually stumble – even just by accident – into this terrain sooner or later. Even I’ve been there, and I’ve barely done any reporting in that space.
This is why the latest indictment handed down in the Assange case has been met with almost universal horror across the media, even by outlets that spent much of the last two years denouncing Assange as a Russian cutout who handed Trump the presidency.
The 18-count indictment is an authoritarian’s dream, the work of attorneys who probably thought the Sedition Act was good law and the Red Scare era Palmer raids a good start. The “conspiracy to commit computer intrusion” is there again, as the 18th count. But counts 1-17 are all subsection 793 charges, and all are worst-case-scenario interpretations of the Espionage Act as pertains to both the receipt and publication of secrets.
Look at the language:
Count 1: Conspiracy to Receive National Defense Information. Counts 2-4: Obtaining National Defense Information. Counts 5-8: Obtaining National Defense Information. And so on.
The indictment is an insane tautology. It literally charges Assange with conspiracy to obtain secrets for the purpose of obtaining them. It lists the following “offense”:
To obtain documents, writings, and notes connected with the national defense, for the purpose of obtaining information respecting the national defense…
Slowly – it’s incredible how slowly – it is dawning on much of the press that this case is not just an effort to punish a Russiagate villain, but instead a deadly serious effort to use Assange as a pawn in a broad authoritarian crackdown.
The very news outlets that have long blasted Donald Trump for his hostility to press freedoms are finally coming around to realize that this case is the ultimate example of all of their fears.
It became clear that this is a genuine effort to expand the ability of the U.S. government to put a vice-grip on classified information, scare whistleblowers into silence, and scare the pants off editors across the planet.
The Assange case is more than the narrow prosecution of one controversial person. This is a crossroads moment for the whole world, for speech, reporting, and transparent governance.
It is happening in an era when the hegemonic U.S. government has been rapidly expanding a kind of oversight-free zone within its federal bureaucracy, with whole ranges of activities – from drone killings to intelligence budgets to surveillance – often placed outside the scope of either congress or the courts.
One of the few outlets left that offered any hope of penetrating this widening veil of secrecy was the press, working in conjunction with the whistleblower. If that relationship is criminalized, self-censorship will become the norm, and abuses will surely multiply as a result.
Add to this the crazy fact that the Assange indictment targets a foreigner whose “crimes” were committed on foreign soil, and the British government now bears a very heavy responsibility. If it turns Assange over to the United States and he is successfully prosecuted, we’ll now reserve the right to snatch up anyone, anywhere on the planet, who dares to even try to learn about our secret activities. Think of all the ways that precedent could be misused.
Britain is in a box. On the one hand, thanks to Brexit, it’s isolated itself and needs the United States more than ever. On the other hand, it needs to grow some stones and stand up to America for once, if it doesn’t want to see the CIA as the World’s Editor-in-Chief for a generation. This case is bigger than Assange now, and let’s hope British leaders realize it.
Editor’s Note: This story has been updated to omit Alexander Urbelis’ statement.