The removal of Julian Assange from the London embassy of Ecuador following the revoking of his asylum has raised concerns about the implications for press freedom. The US immediately unsealed a secret grand jury indictment that it had obtained earlier and used it to demand his extradition to the US. The main charge against him is that of a conspiracy to hack into government computers to obtain secret documents.
A key element of the indictment is a new allegation that Assange actively engaged in helping Manning try to crack a password that allowed the US soldier to gain unauthorized and anonymous access to highly sensitive military computers. At the time, in 2010, Manning was working as an intelligence analyst at a forward operating base outside Baghdad.
Experts on freedom of the press and speech were generally more relaxed about that narrow charge, standing on its own, in that it essentially accuses Assange of violating computer hacking laws – specifically the Computer Fraud and Abuse Act – in a way that has no first amendment protection. If prosecutors succeed in presenting evidence beyond a reasonable doubt to that effect, it is unlikely to arouse fierce opposition across the board.
But along with that are other aspects of the indictment that threaten normal journalistic practices and those concern how journalists work with sources and whistleblowers. Under US law, it is not an offense for a journalist to receive classified information if it falls into their laps from out of the blue and to publish it. A more subtle issue is whether a journalist who encourages a source to provide classified information is also breaking the law. Journalists argue that rarely does information come out of nowhere and that cultivating sources to gain their confidence in order to obtain information is standard practice and should also be covered by the press freedoms. But this is what the indictment challenges and has alarmed freedom of the press advocates.
Among the phrases contained in the indictment that have provoked an uproar are:
- “It was part of the conspiracy that Assange encouraged Manning to provide information and records from departments and agencies of the United States.” It is a basic function of journalism to encourage sources to provide information in the public interest on the activities of government.
- “It was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks.” Protecting the anonymity of sources is the foundation stone of much investigative and national security reporting – without it sources would not be willing to divulge information, and the press would be unable to fulfill its role of holding power to account.
- “It was part of the conspiracy that Assange and Manning used the ‘Jabber’ online chat service to collaborate on the acquisition and dissemination of the classified records.” The indictment similarly refers to a dropbox. Both Jabber and Dropbox are communication tools routinely used by journalists working with whistleblowers.
Robert Mackey has more on Assange’s arrest and Glenn Greenwald and Micah Lee look more closely at the indictment and argue that it does not say what has been widely reported and in fact poses a grave threat to press freedoms. They argue that the ‘conspiracy’ that the government alleges comprise things that journalists routine do to protect their sources.
The first crucial fact about the indictment is that its key allegation – that Assange did not merely receive classified documents from Chelsea Manning but tried to help her crack a password in order to cover her tracks – is not new. It was long known by the Obama DOJ and was explicitly part of Manning’s trial, yet the Obama DOJ – not exactly renowned for being stalwart guardians of press freedoms – concluded it could not and should not prosecute Assange because indicting him would pose serious threats to press freedom. In sum, today’s indictment contains no new evidence or facts about Assange’s actions; all of it has been known for years.
The other key fact being widely misreported is that the indictment accuses Assange of trying to help Manning obtain access to document databases to which she had no valid access: i.e., hacking rather than journalism. But the indictment alleges no such thing. Rather, it simply accuses Assange of trying to help Manning log into the Defense Department’s computers using a different user name so that she could maintain her anonymity while downloading documents in the public interest and then furnish them to WikiLeaks to publish.
In other words, the indictment seeks to criminalize what journalists are not only permitted but ethically required to do: take steps to help their sources maintain their anonymity. As long-time Assange lawyer Barry Pollack put it: “the factual allegations…boil down to encouraging a source to provide him information and taking efforts to protect the identity of that source. Journalists around the world should be deeply troubled by these unprecedented criminal charges.”
One challenge that Assange faces is that there is deep dislike among some members of the mainstream press for him and for WikiLeaks because it scooped them on major stories, and even some journalists challenge the idea that he is a journalist and that WikiLeaks is a part of the press and thus entitled to the same protections that they enjoy. Veteran First Amendment lawyer James C. Goodale, former general counsel for the New York Times, describes one experience he had.
Given the threat the Justice Department’s actions against Assange pose to the First Amendment, why haven’t more journalists, press organizations, and editorial boards jumped in to support him? Principally it is because journalists dislike what he is doing; they don’t believe he is a “real” journalist and therefore do not see him as entitled to the same protections they enjoy.
Writing in U.S. News and World Report, for example, Susan Milligan says, “[Journalism] requires research, balance and most of all judgment. . . . Dumping documents—some of them classified—onto a website does not make anyone a journalist.” Add to this my own experience of when I was attacked several years ago by a howling mob of A-list journalists led by the late Morley Safer at a party (for my own book) where I said Assange, as a reporter, was entitled to First Amendment rights. “He is just a data dumper,” I was told—and most everyone there agreed.
But he’s not just a data dumper. He edited the Manning leaks initially, holding back some material. He may have done the same thing with his other leaks, including the Vault 7 releases. For better or for worse he seeks out information to be published on his website the way other journalists do for their publications. He is a publisher and is entitled to the same First Amendment protections as any other. Nonetheless, in the eyes of establishment journalists he remains a dumper, as well as a rapist, a liar, a thief, and a Russian agent.
This reaction Goodale experienced is a dangerous attitude for any journalist to take. All governments hate the idea of a free press and will use every means at their disposal to undermine it. This will involve intimidation and even coercion and threats but also trying to buy the allegiance of some journalists by providing them with nuggets of information. It is no secret that the US government is the biggest leakers of confidential information, with the aim of slanting the news coverage of events in its favor. Both the government and those journalists selected by it to be the favored conduits oppose outfits like WikiLeaks because it disrupts their cozy arrangement by providing uncontrollable avenues of information release.
It is relatively easy for governments to coopt mainstream media outlets to serve their purposes. It is harder to corral the multitude of smaller outlets. So in this age of decentralized information, rather than narrow the definition of who is a journalist and what constitutes a media outlet, we should be broadening it.