The extradition of Assange threatens press freedoms

Fourteen years ago, at a human rights conference in Oslo, I met Julian Assange. From the moment I encountered the wraithlike WikiLeaks founder, I sensed that he might be a morally dubious character. My suspicions were confirmed upon witnessing his speech at the conference, in which he listed Israel alongside Iran and China as part of a “rogue’s gallery of states” and compared the Guantánamo Bay detention facility to a Nazi concentration camp.

Nothing Assange has said or done in the intervening 14 years has altered my initial impression of him as a man unhealthily preoccupied with the shortcomings of democracies and suspiciously uninterested in the crimes of dictatorships. In the months following our meeting, WikiLeaks published hundreds of thousands of US diplomatic cables and military files, collectively constituting the largest leak of classified government documents in history.

Though Assange insisted that his purpose was to expose American abuses, the leaks were also a boon to the Taliban and other authoritarian forces around the world. According to two journalists working for The Guardian, one of the newspapers that collaborated with WikiLeaks in the initial publication of these documents, Assange had to be convinced to redact the names of Afghan civilians who had cooperated with the American military.

“Well, they’re informants,” Assange defiantly told them. “So if they get killed, they’ve got it coming to them. They deserve it.”

The clearest example that Assange is something less admirable than the radical transparency activist he and his supporters purport him to be is his friendly relationship with the Russian government. In 2012, Assange hosted a talk show on RT (formerly Russia Today), the Kremlin-funded propaganda network that beams conspiracy theories and anti-Western narratives around the world. The following year, WikiLeaks played a crucial role in helping the fugitive National Security Agency leaker Edward Snowden seek asylum in Moscow.

And during the 2016 US presidential election, while WikiLeaks worked with Russian intelligence to publish reams of hacked materials designed to damage the campaign of the Democratic nominee, Hillary Clinton, the site refused to publish “a wide-ranging trove of documents” from the Russian government detailing Moscow’s ongoing military and intelligence activities in Ukraine.

I had no sympathy for Assange when, facing extradition to Sweden on sex crime charges in 2012, he holed up in the Ecuadorean embassy in London. Assange denied those charges, claiming that they were a pretext to extradite him onward to the US, where a grand jury had been impaneled to determine whether his receipt and publication of leaked government documents violated US law. It was not until April 2019 that the Department of Justice would finally unseal an indictment against Assange, charging him with conspiring to hack Pentagon computers. By that point, Assange had overstayed his welcome with his long-suffering Ecuadorean hosts, who forfeited him to British police.

While Assange may well have committed a crime by assisting the former US soldier Chelsea Manning to break into government computer systems in 2010, a superseding indictment handed down a month after his arrest and charging him with multiple counts of violating the 1917 Espionage Act — crimes for which, if found guilty, he could face up to 175 years in prison — constitutes a serious threat to the First Amendment. With Assange set to appeal his extradition to the United States this week, it is not too late for the US government to reconsider this ill-advised prosecution.

According to the government’s indictment, Assange “encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.” These might sound like nefarious activities. But they are what journalists, particularly those covering national security affairs, do every day: surreptitiously speak with government officials who have access to classified information, persuade them to share it, and publish the fruits of their investigative labors so that citizens are better informed.

While the Espionage Act has been used rarely against those who leak classified information, never — until now — has the government cited it against someone who publishes that information. Even though senior members of the Obama administration publicly criticized WikiLeaks and privately debated whether to prosecute Assange, they ultimately refrained from doing so on the understanding that such an action would undermine the First Amendment.

The government’s approach shifted dramatically during the Trump administration, which initiated the prosecution of Assange, and has unfortunately continued under the Biden administration, which is upholding the case it inherited from its predecessor.

Cognizant of how its prosecution of Assange under the Espionage Act could be used to target journalists for their everyday activities, the assistant attorney general who announced the charges against him in 2019 insisted that Assange “is no journalist.” But the Constitution does not define who qualifies as a journalist, nor does it bestow any such power upon the US government. As the Supreme Court justice Byron White wrote in a 1973 decision, the “liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilises the latest photocomposition methods.”

I find Assange’s ideology loathsome and his methods reckless. But the First Amendment wasn’t written to protect only those whose ideas, and means of expressing them, we find agreeable. As such, the continued prosecution of Assange under the Espionage Act constitutes a dangerous escalation in the government’s attempt to hinder free expression.

In 1973, two years after the Supreme Court defended the New York Times’ right to publish the Pentagon Papers, a pair of eminent legal scholars referred to the Espionage Act as a “loaded gun” pointed at the media. That this legal weapon is now being aimed at an individual as unsympathetic as Julian Assange makes it no less of a threat to freedom of the press.