WASHINGTON — When The New York Times published a secret military history of the Vietnam war called the Pentagon Papers nearly 50 years ago, the government fought all the way to the Supreme Court to prevent it from appearing in print. It charged the man who leaked them with espionage.
But it never accused the newspaper of committing a crime by publishing them.
Before the Justice Department revealed espionage charges Thursday against WikiLeaks founder Julian Assange, it had brought only one case under a century-old law protecting defense information by accusing someone of receiving, rather than revealing, U.S. secrets.
Assange’s prosecution could redefine the legal boundaries for publishing national security secrets and upend the balance the government has struck for decades between First Amendment free-press rights and safeguarding its most sensitive information. And it is an escalation of the government’s legal strategy for targeting leaks.
Steve Vladeck, a University of Texas law professor, said the charges against Assange could chill journalists covering national security matters. Despite obvious differences between WikiLeaks and traditional media outlets, Vladeck said none of those matter to the government’s argument that the anti-secrecy organization violated the Espionage Act, a law enacted during World War I to punish foreign agents stealing secrets in the U.S.
“The legal theory doesn’t care about that factual distinction,” Vladeck said. “Yes, descriptively, it’s easy to explain that what they’re charging Assange of doing is a conduct that is different from journalism’s best practices. The problem is that the legal theory doesn’t necessarily reflect that distinction.”
Until now, the Justice Department has focused its leak prosecutions almost entirely on the workers who agreed not to reveal secrets as part of their jobs. The only modern exception was a 2005 case in which a Defense Department analyst named Lawrence Franklin was indicted for disclosing information about American forces in Iraq to two employees of the lobbying group American Israel Public Affairs Committee. Franklin pleaded guilty to one count under the Espionage Act. The government also charged two AIPAC workers who received the leak, but later dropped the case.
Even that case avoided the thornier issue of how the secrecy law might apply to journalists or publishers.
The Justice Department has long maintained that journalists can be charged if they steal secret information themselves. But even investigations involving reporters have sparked a public outcry. And, until Thursday, the government stopped short of suggesting that it would be a crime for publishers to reveal information they receive.
The closest it came in recent memory was during President Barack Obama’s administration, when the Justice Department obtained emails and tracked the movements of Fox News reporter James Rosen, according to an FBI search warrant dated May 28, 2010. To conduct that surveillance, the government told a court that Rosen was a conspirator in the leak because he encouraged a government source to reveal secret information “by employing flattery and playing to Mr. Kim’s vanity and ego.”
Rosen was never charged. And the department’s approach prompted an intense public backlash that echoed through the Assange charges.
“It appears at first blush that some of the charges concern merely publishing information and don’t have to do with alleged illegality with respect to how the information was obtained,” said Scott Gant, a constitutional lawyer and partner at Boies Schiller Flexner and author of the book, “We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age.”
“Mr. Assange, like everyone else, enjoys First Amendment protections, and is not immunized from engaging in otherwise illegal activity with respect to collections,” Gant said. “But once an entity has information, like USA TODAY or the New York Times or the Washington Post, the First Amendment with the rarest of exceptions protects the act of publishing.”
First Amendment advocates said they found that theory alarming, and warned that it could hurt press freedom worldwide.
Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project, called the Assange case “an extraordinary escalation of the Trump administration’s attacks on journalism and a direct assault on the First Amendment.”
“For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information,” Wizner said. “And it is equally dangerous for U.S. journalists who uncover the secrets of other nations. If the US can prosecute a foreign publisher for violating our secrecy laws, there’s nothing preventing China, or Russia, from doing the same.”
Joel Simon, executive director of the Committee to Protect Journalists, said press freedom around the world is imperiled by the prosecution.
“The indictment of Julian Assange under the Espionage Act for publishing classified information is an attack on the First Amendment and a threat to all journalists everywhere who publish information that governments would like to keep secret,” Simon said.
But Mary McCord, senior litigator at Georgetown Law’s Institute for Constitutional Advocacy and Protection, called the outcry from press advocates “a little hyperbolic” because prosecutors have made a distinction between Assange and a responsible journalist. She said traditional journalists who cultivate government sources should be concerned about drawing the line between receiving classified information and actively encouraging sources to disclose secrets.
“I think there’s a lot of distrust among the media about what this administration might do and how they might completely throw out the historical reluctance to charge real reporters under the Espionage Act,” McCord said. “But I think if you look carefully at this indictment and, in particular, the language of the indictment and along with what the government has said, they certainly aren’t suggesting that this is the opening of the war against journalists who report the news and engage in legitimate news gathering.”
The Justice Department drew a similar line when it announced the charges against Assange on Thursday.
John Demers, assistant attorney general for national security, said the department has never targeted journalists for reporting.
“But Julian Assange is no journalist,” Demers said. “Indeed, no responsible actor, journalist or otherwise, would purposely publish the names of individuals he or she knew to be confidential human sources in war zones.”
WikiLeaks — which has revealed secret State Department cables, stolen Central Intelligence Agency computer hacking files and reams of other sensitive secrets — has been a decade-long source of frustration for U.S. security officials. And some said they see no problem distinguishing it from more traditional publishers.
Joseph Augustyn, a veteran of the Central Intelligence Agency’s clandestine service and former deputy associate director of the Department of Homeland Security, said “there is a world of difference” between WikiLeaks and legitimate news organizations.
“Declaring yourself a publisher, in my mind, does not give you a free get-out-of-jail card,” Augustyn said. “Otherwise, anyone can consider themselves a publisher.”
Although journalists accept and publish information from whistle-blowers, Assange’s actions go far beyond that, Augustyn said.
“He sought out people to get them to really betray their oath. He encouraged them and reportedly even helped them to obtain all this data,” Augustyn said. “And then dumped it out mindlessly without any care about innocent people who might get hurt.”
The Justice Department sought to highlight those distinctions when it announced the charges against Assange. Officials said Assange encouraged and made suggestions to former Army intelligence analyst Chelsea Manning about how to obtain and release the documents, such as how to get past a computer password.
The WikiLeaks databases contain approximately 90,000 Afghanistan War-related significant activity reports, 400,000 Iraq War-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs and 250,000 U.S. Department of State cables, according to prosecutors.
Prosecutors also said responsible journalists would not publish the names of confidential informants in war zones such as Iraq and Afghanistan, or in hostile countries such as China, Iran and Syria – particularly after the State Department warned Assange not to do it.
Gant, the constitutional lawyer, said determining who is a responsible publisher is a subjective test. For example, publishing the Pentagon Papers was called irresponsible at the time, he said.
“The notion of whether a publication decision is responsible or irresponsible is a subjective one that as a general matter has no bearing on whether the First Amendment protects the activity,” Gant said. “That can’t be the test about whether the government feels it was a responsible for irresponsible exercise of discretion by the publisher.”
More about WikiLeaks founder Julian Assange’s legal problems:
‘Julian Assange is no journalist.’ Feds charge WikiLeaks founder for revealing U.S. government secrets
Sweden requests detention order for Julian Assange
Truth-seeker or hacking criminal? WikiLeaks’ Julian Assange faces extradition hearing
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