Charges against Assange could have a chilling effect on journalism

Charges against Assange could have a chilling effect on journalism

By: Rachel Marsden

PARIS -- The U.S. Department of Justice filed 18 felony charges against WikiLeaks founder Julian Assange on May 23, and 17 of the charges are for alleged espionage. Assange describes himself as a publisher. The U.S. government apparently begs to differ.

The Justice Department goes to great pains in the indictment to describe Assange’s tactics in a presumed attempt to separate him from the heard of more conventional journalists. Prosecutors cite his trips to hacker conferences and his repeated clarion calls for secret government documents. They characterize his back-and-forth with a major source of stolen government documents, former military intelligence analyst Chelsea Manning, as a matter of Assange egging on Manning.

Journalists covering national security frequently attend hacker conferences. Journalists also dream to have a pile of classified information related to shady government activity fall into their laps. Not every classified document represents a national security risk if exposed to daylight. The top-secret classification can be abused to hide government malfeasance from scrutiny.

One such example is a classified memo authored in January 2018 by the Republican majority of the House Intelligence Committee. The memo expresses concern over possible misuse of Foreign Intelligence Surveillance Act warrants by the FBI and Justice Department in order to spy on Trump campaign members during the 2016 presidential election. The memo was declassified on Trump’s order the following month. It’s hardly surprising that the Justice Department had slapped a top-secret classification on a document that called its own professionalism into question.

It’s fairly common for journalists to openly list secure drop boxes and public PGP keys that allow sources to send them sensitive information via encryption. It’s a bit more subtle than Assange’s constant begging for exclusive information, but the motivation is exactly the same.

It’s troubling that the U.S. government takes issue with the nature of interaction between Assange and one of his sources. Do we really want the government inserting itself into the relationships between journalists and sources? Such interactions are usually protected, particularly in cases where the overall public interest significantly outweighs the public interest in prosecution. In this case, the information was about previously undisclosed realities of the wars in Iraq and Afghanistan, and it provided the basis for countless articles by major media outlets in America and around the world.

There is a legitimate argument to be made that Assange should have taken more care to redact the documents prior to publication. Nonetheless, criminalizing the publication of material because the end result is inconvenient to U.S. intelligence operations would set a bad precedent. It could have a chilling effect on national-security journalism, favoring government secrecy over the public’s right to know what the government is up to in its foreign engagements.

Without fearless national-security journalism, which routinely involves handling classified information leaks, the public is left to take the word of government officials at face value. Adversarial national-security journalism serves as a critical check on officials who might trigger a potentially catastrophic war — such as the current national security adviser, John Bolton, who seems hell-bent on launching a military conflict with Iran.

The volley of espionage charges against Assange, who published information for public consumption, is absurd when compared with far more egregious cases involving the sale of information to foreign governments (which the government often ignores).

The Espionage Act applies to “gathering, transmitting, or losing defense information” with “reason to believe [that it] could be used to the injury of the United States or to the advantage of any foreign nation.” There is nothing in the Assange indictment indicating that he obtained the information in order to pass it along to a foreign government — the traditional definition of espionage.

If the government is going after Assange for public disclosure, then why hasn’t it indicted the thousands of private security consultants, military contractors and former intelligence officers who are leveraging their government experience (and in many cases, their security clearances) to advise foreign governments (including hostile ones)? Unlike Assange, they’re not doing it for the public, but for money.

It’s no secret that American contractors are now advising the United Arab Emirates, Israel, China, Saudi Arabia and other nations, using the skills, experience and knowledge that these former government employees gained under U.S. security clearance.

If we’re going to dust off the Espionage Act, aren’t these individuals a lot closer to the definition of espionage than some Australian who publicly solicited information from sources in order to provide it to the masses?