The Legal Implications of the U.S. Prosecuting Assange

By Daisy Ni (PO ’21)

Julian Assange, the founder of WikiLeaks, has long been a controversial figure. He, alongside with his site, are best known for their release of 25,000 cables of classified government information stolen by former U.S. Army intelligence analyst Chelsea Manning. Since then, Assange has had a strained relationship with the U.S. government. President Trump, for example, has changed his opinion on Assange: though the president once declared that he “loves WikiLeaks,” the Trump administration has recently accidentally revealed that it has secretly filed criminal charges against Assange. The charges have not yet been announced, but there are already perceived legal challenges toward any attempted prosecution of Assange.

The legal case against Assange is not new: the U.S. government has been investigating him since the release of the cables in 2010. However, it has refrained from prosecuting him until now due to a lack of clear-cut pathway through which to indict him. Currently, there is law criminalizing the disclosure of classified information—these statues were the ones used to indict Chelsea Manning—but the dissemination of classified information is a more difficult legal territory to navigate, especially considering dissemination’s potential protection under the First Amendment.

The Espionage Act of 1917 has been floated as a possible way through which the government could pursue charges; however, there are questions as to whether it could be used successfully. To this date, no one has been indicted under the Espionage Act, partly due to its archaic and vague nature. Thus, its limits have never been truly tested. The Espionage Act does clearly prohibit the disclosure of information relating to national defense. However, the bar for establishing criminal responsibility involves establishing intent. As courts have established, notably in AIPAC v. United States, in order to sustain a case under the Espionage Act, the government must prove that the defendant had a specific criminal intent to injure the U.S. and that they acted in bad faith.

The necessity of intent is one legal challenge scholars have indicated the prosecution would have to face. Assange, prior to releasing the cables, had contacted the U.S. government, inviting suggestions for redactions. The State Department refused to cooperate. Assange then reiterated that WikiLeaks had no desire to harm either “individual persons” or “the national security of the United States.” As Assange states, the administration’s refusal to discuss redactions, thus, “leads me to conclude that the supposed risks are entirely fanciful.” Thus, Assange’s defense is likely to argue that he did not deliberately and knowingly intend to harm the U.S., and moreover explicitly attempted to ensure his actions did not do so.

Another potential defense that Assange could mount is based on the First Amendment. Such a defense would have important implications for journalists across the country. WikiLeaks refers to itself as a news organization, a label which could strengthen any protection Assange could find under the Constitution. Scholars and various press organizations, such as the International Federation of Journalists and Freedom of the Press Foundation, have supported this terminology. Some note that as WikiLeaks develops a closer cooperative ties with traditional news outlets, it has become intimately related to the press, becoming in a sense an adjunct that is difficult to distinguish from the press itself.

On the other hand, however, WikiLeaks’ qualification as the press has been contested by others. Mike Pompeo, for example, has called WikiLeaks a “non-state hostile intelligence service.” Floyd Abrams, an attorney who represented the New York Times in the Pentagon Papers Case, drew a distinction between WikiLeaks’ activities and traditional news media’s activities in whistleblowing. While the New York Times’ release “revealed official wrongdoing or, at the least, a pervasive lack of candor by the government to its people,” he writes that WikiLeaks’ “appears to demonstrate no misconduct by the U.S.” and is “difficult to defend on any basis other than WikiLeaks’ general disdain for any secrecy at all.”

Regardless of whether WikiLeaks qualifies as press, however, Assange could still find protection under the First Amendment, which protects freedom of expression for beyond just the press. Additionally, some scholars have asserted that the question is not whether Assange is a journalist, but whether his activity under WikiLeaks differs in a legally significant manner from the activity of traditional news outlets: publishing truthful material. The Obama administration had in fact restrained from pursuing charges against Assange due to what it termed the “New York Times problem.” While Assange published classified information, so do other traditional news organizations on a daily basis; the New York Times, for example, published the very same cables in 2010 after receiving the information from WikiLeaks. Thus, if the Justice Department indicted Assange on the basis of the 2010 cables, it would also have to prosecute other U.S. news organizations and journalists who reproduced the cables, which would set a dangerous precedent for attacking free speech and a free press.

Much of the implications the case holds depends on the specific charges with which Assange is being prosecuted. Should the government be basing its legal theory outside of simply receiving and publishing information, it could avoid a confrontation with the First Amendment. Additionally, the government will face legal hurdles in extraditing Assange from where he is hiding—the Ecuador embassy in London—to the U.S. to face trial in the first place. Ultimately, however, it is necessary to realize the dangers of a successful prosecution and what that could mean for the targeting of other news organizations, especially in an era in which the presidential administration has articulated such an explicit distaste of the press. WikiLeaks or Assange may not be much likable, aggravating both sides of the political spectrum, but it is after all often the least popular cases that lay the ground and reinforce the most essential rights of democracy.

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