If you hate Assange because of his role in the 2016 race, please take a deep breath and consider what a criminal charge that does not involve the 2016 election might mean. An Assange prosecution could give the Trump presidency broad new powers to put Trump’s media “enemies” in jail, instead of just yanking a credential or two. The Jim Acosta business is a minor flap in comparison.
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Although Assange may not be a traditional journalist in terms of motive, what he does is essentially indistinguishable from what news agencies do, and what happens to him will profoundly impact journalism.
Reporters regularly publish stolen, hacked and illegally-obtained material. A case that defined such behavior as criminal conspiracy would be devastating. It would have every reporter in the country ripping national security sources out of their rolodexes and tossing them in the trash.
A lot of anti-Trump reporting has involved high-level leaks. Investigation of such leaks has reportedly tripled under Trump even compared to the administration of Barack Obama, who himself prosecuted a record number of leakers. Although this may seem light years from the behavior of Wikileaks, the legal issues are similar.
Although it’s technically true that an Assange indictment could be about anything, we do have some hints about its likely direction. Back in 2014, search warrants were served to Google in connection with Wikileaks that listed causes of criminal action then being considered. Google informed Wikileaks of the warrants. You can see all of this correspondence here.
The government back then –—again, this pre-dated 2016, Roger Stone, Guccifer 2.0, etc. — was looking at espionage, conspiracy to commit espionage, theft or conversion of property belonging to the United States government, violation of the Computer Fraud and Abuse Act and conspiracy.
The investigation probably goes as far back as 2010, in connection with the release of ex-army private Chelsea Manning’s “Collateral Murder” video. That footage showed American forces in Iraq firing on a Reuters journalist and laughing about civilian casualties.
While much of the progressive media world applauded this exposure of George W. Bush’s Iraq war, the government immediately began looking for ways to prosecute. The Sydney Herald reported that the FBI opened its investigation of Assange “after Private Manning’s arrest in May of 2010.”
While Trump complained, Wikileaks became an international sensation and a darling of the progressive set. It won a host of journalism prizes, including the Amnesty International New Media Award for 2009.
But a lot of press people seemed to approve of Wikileaks only insofar as its “radical transparency” ideas coincided with traditional standards of newsworthiness.
The “Collateral Murder” video, for instance, was celebrated as a modern take on Sy Hersh’s My Lai Massacre revelations, or the Pentagon Papers.
From there, the relationship between Assange and the press deteriorated quickly. A lot of this clearly had to do with Assange’s personality. Repeat attempts by (ostensibly sympathetic) reporters to work with Assange ended in fiascoes, with the infamous “Unauthorized Autobiography” — in which Assange abandoned the anticipated Canongate books project mid-stream, saying “all memoir is prostitution” — being one of many projects to gain him a reputation for egomania and grandiosity.
Partners like the Committee to Protect Journalists, who had been sifting through Wikileaks material to prevent truly harmful information from getting out, began to be frustrated by what they described as a frantic pace of releases.
In one episode, an Ethiopian journalist was questioned by authorities after a Wikileaks cable revealed he had a source in government; the CPJ wanted to redact the name. “We’ve been struggling to get through” the material, the CPJ wrote.
Eventually, for a variety of reasons, the partnerships with media organizations like the New York Times and The Guardian collapsed. Add to this the strange and ugly affair involving now-dismissed rape inquiry in Sweden, and Assange’s name almost overnight became radioactive with the same people who had feted him initially.
It seemed to me from the start the “reputable” press misunderstood Wikileaks. Newspapers always seemed to want the site’s scoops, without having to deal with the larger implications of its leaks.
It’s easy to forget that Wikileaks arrived in the post-9/11 era, just as vast areas of public policy were being nudged under the umbrella of classification and secrecy, often pointlessly so.
Ronald Reagan’s executive secretary for the National Security Council, Rodney McDaniel, estimated that 90 percent of what was classified didn’t need to be. The head of the 9/11 commission put the number at 75 percent.
This created a huge amount of tension between so-called “real secrets” — things that really should never be made public, like military positions and the designs of mass-destruction weapons — and things that are merely extremely embarrassing to people in power and should come out. The bombing of civilian targets in Iraq was one example. The mistreatment of prisoners in Guantanamo Bay was another.
A lack of any kind of real oversight system on this score is what led to situations like the Edward Snowden case. In 2013, Americans learned the NSA launched a vast extralegal data-collection program not just targeting its own people, but foreign leaders like Angela Merkel.
Snowden ended up in exile for exposing this program. Meanwhile, the government official who under oath denied its existence to congress, former Director Of National Intelligence James Clapper, remains free and is a regular TV contributor, despite numerous Senators having called for his prosecution. This says a lot about the deep-seated, institutional nature of secrecy in this country.
It always seemed that Assange viewed his primary role as being a pain in the ass to this increasingly illegitimate system of secrets, a pure iconoclast who took satisfaction in sticking it to the very powerful. I didn’t always agree with its decisions, but Wikileaks was an understandable human response to an increasingly arbitrary, intractable, bureaucratic political system.
That it even had to exist spoke to a fundamental flaw in modern Western democracies — i.e. that our world is now so complex and choked with secrets that even releasing hundreds of thousands of documents at a time, we can never be truly informed about the nature of our own societies.
Moreover, as the Snowden episode showed, it isn’t clear that knowing unpleasant secrets is the same as being able to change them.
In any case, the institutions Wikileaks perhaps naively took on once upon a time are getting ready to hit back. Frankly it’s surprising it’s taken this long. I’m surprised Assange is still alive, to be honest.
If Assange ends up on trial, he’ll be villainized by most of the press, which stopped seeing the “lulz” in his behavior for good once Donald Trump was elected. The perception that Assange worked with Vladimir Putin to achieve his ends has further hardened responses among his former media allies.
As to the latter, Assange denies cooperating with the Russians, insisting his source for the DNC leak was not a “state actor.” It doesn’t matter. That PR battle has already been decided.
Frankly, none of that entire story matters, in terms of what an Assange prosecution would mean for journalism in general. Hate him or not, the potential legal consequences are the same.
Courts have held reporters cannot be held liable for illegal behavior of sources. The 2001 Supreme Court case Bartnicki v. Vopper involved an illegal wiretap of Pennsylvania teachers’ union officials, who were having an unsavory conversation about collective bargaining tactics. The tape was passed to a local radio jock, Frederick Vopper, who put it on the air.
The Court ruled Vopper couldn’t be liable for the behavior of the wiretapper.
It’s always been the source’s responsibility to deal with that civil or criminal risk. The press traditionally had to decide whether or not leaked material was newsworthy, and make sure it was true.
The government has been searching for a way to change that equation. The Holy Grail would be a precedent that forces reporters to share risk of jail with sources.
Separate from Assange, prosecutions of leakers have sharply escalated in the last decade. The government has steadily tiptoed toward describing publishers as criminal conspirators.
Through the end of the Obama years, presidents had only prosecuted leakers twelve times. Nine of those came under Obama’s tenure. Many of those cases involved the Espionage Act.
In one case, a Fox reporter was an unindicted co-conspirator in a leak case involving a story about North Korea planning a nuclear test in response to sanctions.
In another incident, then-New York Times reporter James Risen spent seven years fighting an attempt by the Obama government to force him to compel his sources in a story about Iran’s nuke program.
A more recent case, from the Trump years, involved NSA leaker Reality Winner, who was given a draconian five-year prison sentence for leaking to The Intercept.
Despite Trump’s more recent cheery campaign-year comments about Wikileaks, and his son’s now-infamous email correspondence with Assange, Trump’s career-government appointees have not deviated much from the old party line on Wikileaks.
Trump’s security chiefs repeatedly called for a prosecution of Assange, with then-Justice head Jeff Sessions saying it was a “priority.”
Current Secretary of State and then-CIA director Mike Pompeo called Wikileaks a “non-state hostile intelligence service” and added, “Julian Assange has no First Amendment freedoms… He is not a U.S. citizen.”
It’s impossible to know exactly what recent news about an indictment means until we see it (the Reporters’ Committee for the Freedom of the Press has already filed a motion to unseal the charges). If there is a case, it could be anything in the federal criminal code, perhaps even unrelated to leaks. Who knows?
But the more likely eventuality is a prosecution that uses the unpopularity of Assange to shut one of the last loopholes in our expanding secrecy bureaucracy. Americans seem not to grasp what might be at stake. Wikileaks briefly opened a window into the uglier side of our society, and if publication of such leaks is criminalized, it probably won’t open again.
There’s already a lot we don’t know about our government’s unsavory clandestine activities on fronts like surveillance and assassination, and such a case would guarantee we’d know even less going forward. Long-term questions are hard to focus on in the age of Trump. But we may look back years from now and realize what a crucial moment this was.
Editor’s Note: This story was updated to reflect that Assange was never charged with rape, rather there was an inquiry, and that investigation has since been dropped.