Rya Jetha (PO ’23)
Earlier this month, Julian Assange’s extradition trial concluded after four weeks of testimony at London’s Central Criminal Court. The proceedings included testimony about Assange’s risk of being denied justice if he were extradited to the United States, political motivations behind his prosecution, and his physical and mental health. But this trial was not only about Assange’s future. The judgement, which District Judge Vanessa Baraitser is expected to announce on January 4, 2021, will also be a verdict on the future of public interest journalism itself.
How did we get here?
In 2006, Julian Assange founded WikiLeaks. Inspired by Daniel Ellsburg’s 1971 release of the Pentagon Papers published by the New York Times, Assange wanted to create an online platform that streamlined the whistleblowing process. Over the years, WikiLeaks published documents including Iraq and Afghanistan war logs, a manual on “standard operating procedures” at Guantanamo Bay, and State Department cables dating back to 1966. In June of 2012, Assange took refuge at the Ecuadorian Embassy in the U.K. to avoid extradition to Sweden, where he faced allegations of assault and rape. Assange continued to work from the Ecuadorian
Embassy until 2019, publishing the Syria Files, secret Saudi Arabian government documents, and eventually precipitating “The October Surprise” before the 2016 U.S. election by publishing incriminating documents from the Democratic National Convention and Hilary Clinton’s email server. Over the seven years of Assange’s stay at the Embassy, his behaviour became erratic and his relations with Embassy staff soured. For President Moreno of Ecuador, the last straw was when Assange published information on WikiLeaks about an offshore account supposedly controlled by Moreno’s brother. In April 2019, Ecuadorian officials moved to end his asylum by cooperating with the U.K. Metropolitan Police. In a statement, President Moreno said that Assange had violated international conventions regarding domestic interference, calling him a “spoilt brat” and a “miserable hacker”. Following his arrest in 2019 by British authorities, an indictment against Assange was unsealed in the United States, charging him with conspiracy to hack a government computer. A month later, 17 charges under the US Espionage Act were added to his indictment.
The “New York Times Problem” and a very enthusiastic cheerleader
In 2016, it would have been hard to imagine that the United States would pull out all the stops to extradite Julian Assange from the U.K. to the U.S. in the near future. By then, the Justice Department under Obama had already decided they would not pursue charges against Assange. This was because of the intractable “New York Times problem,” meaning that if the Justice Department decided to go after Assange for publishing classified information, they would also have to prosecute other news organizations who did the same thing, such as the New York Times, the Washington Post, and the Guardian. Former Justice Department spokesman Matthew Miller explained at the time, “the problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists, and if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”
There were calls at the time to prosecute Assange under the U.S. Espionage Act in the US, but these were legally baseless. Assange was not a government employee like Edward Snowden or Chelsea Manning, contractually bound to secrecy, who had leaked documents. Assange was a journalist who had published documents — an act integral to public interest journalism and constitutionally protected by the First Amendment. Back in 2010, the Washington Post editorial page published a stern column called “Don’t Charge WikiLeaks,” explaining the implications of government action against WikiLeaks: “such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information.” The Post’s argument was not challenged by the Obama administration — they concluded in 2013 that there was no legal basis to go after Assange.
Similarly, soon-to-be President Donald Trump showed no interest in an indictment. On the 2016 campaign trail, Trump praised WikiLeaks for publishing damning emails about his democratic contender, Hilary Clinton. In October 2016, Trump proclaimed, “WikiLeaks, I love WikiLeaks,” adding later that month, “this WikiLeaks is like a treasure trove!” and “boy, I love reading those WikiLeaks.”
And so it seemed, in 2016, that Julian Assange would remain undisturbed in his office-cum-bedroom at the red brick Ecuadorian Embassy in London, sleeping on his air mattress and ordering food from nearby restaurants. And then, perhaps because of Assange’s own involvement in “The October Surprise” document leak, Donald Trump assumed office.
“Responsible” Journalists and the First Amendment
After assuming office, Trump’s high praise for WikiLeaks soon devolved into slander and attacks.
“Do you still love WikiLeaks?” one reporter asked Trump following Assange’s arrest in April 2019.
Trump’s comments foreshadowed a frightening challenge to the First Amendment. In May of 2019, Assange was indicted by the U.S. Department of Justice on 17 counts of violating the Espionage Act for obtaining and publishing classified documents in 2010. The indictment was unable to establish any precedent on the obtaining and publishing of classified documents being illegal, and underplayed the implication for press freedom and First Amendment rights. John Demers, head of the Justice Department’s National Security Division told reporters back in 2019 that “the department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department’s policy to target them for reporting.” However, Mr. Demers continued, Assange is “no journalist” because of his irresponsible publishing of confidential human sources in active war zones. Mr. Demer’s appeared to be drawing a line between a “responsible” and irresponsible journalist, conveying that the latter somehow qualified for prosecution under the Espionage Act for their journalistic malpractice. This indictment laid the groundwork for the extradition hearing that just concluded in London, where witnesses were called in to answer a fundamental question — who is a journalist?
Executive Director for the Freedom of the Press Foundation (FPF), Trevor Timm, testified as a witness on this question, explaining that the “idea of who is or is not a responsible journalist is different from what is illegal or legal conduct.” No U.S. Court has ever ruled that the publication of state secrets would be illegal. “It doesn’t matter whether the U.S. government considers Assange a journalist,” Timm continued, “Journalistic organizations do not need an “issued press pass to have First Amendment rights.” Whether or not someone is a journalist, everyone is guaranteed First Amendment rights when engaging in First Amendment activities. Yes, Assange was irresponsible, releasing documents that put people in harm’s way. But it’s hard to dispute that he is a journalist even if one wanted to — WikiLeaks has won prestigious journalism awards for its work, including The Economist’s New Media Award in 2008, Amnesty International’s UK Media Award in 2009, and the Martha Gellhorn Prize for excellence in journalism in 2011. WikiLeaks had official media partnerships with the New York Times, the Guardian, Le Monde, Der Spiegel and El País. Even if, to receive First Amendment protections, one had to be a legitimate journalist, Julian Assange meets all the criteria.
Timm also laid out how WikiLeaks is widely recognized as a “pioneer” of “secure submission system for journalistic sources” such as SecureDrop, developed by the FPF, which is now available in 10 languages and used by more than 70 media organizations to “solicit” or accept leaked documents. The truth is, media organizations owe a huge debt to WikiLeaks for pioneering sophisticated information gathering practices to deliver public interest journalism to its readers. We would not know a great deal about America’s overseas involvement in Iraq, Afghanistan and Yemen, government communications after 9/11, and Hilary Clinton’s campaign communications without WikiLeaks and its collaborations with top media outlets. It is not a stretch to say that our idea of the world would be vastly different if publishing documents without authorization was unconstitutional. We may have never seen the Pentagon Papers or the Panama Papers, we would have never known about the National Security Agency spying on U.S. citizens through PRISM, and Trump may have never been elected. So it is not only Assange’s future on the line at his extradition trial, but public interest journalism the world over. Why has the press been so silent on his high-stakes extradition trial?
Bipartisan Consensus on the Fourth Pillar
Democrats have deep rooted contempt for Assange. They blame him for Hillary Clinton’s defeat, courtesy of the thousands of emails WikiLeaks published between Clinton and her campaign chair, John Podesta. They blame him for his unsavoury political opinions, which include calling Clinton a ‘warhawk’ and writing in 2016 that “a vote today for Hillary Clinton is a vote for endless, stupid war. […] Her poor policy decisions have directly contributed to the rise of ISIS.” Democrats also blame Assange for exposing the rank corruption of the Democratic Party, causing the resignation of 5 top officials at the Democratic National Convention. So, as Assange has been implicated in Trump’s war against the media, Democrats have turned a blind eye. Unable to transcend their hatred for Assange, there is bipartisan consensus that the Fourth Pillar is not worth saving.
Assange’s trial shows that the Democrats are conspirators with Trump’s Department of Justice. The same Democrats who appear outraged when Trump tweets about the “Lamestream Media” and “FAKE NEWS” are silently cheering for Assange’s prosecution from across the pond. They are so consumed with hatred for Assange, they are willing to create a precedent that criminalizes public interest journalism and erodes American democracy. And this precedent, if created, will be because of the stealthiest kind of legal gymnastics. The U.S.-U.K. Extradition Treaty (2003) states in Article 4(1) of the treaty that “Extradition shall not be granted if the offense for which extradition is requested is a political offense.” The prosecution, of course, recognized that the “political offense” phrase could weaken their argument for extradition, and instead chose to cite British domestic law, the Extradition Act, which makes no mention of special consideration for political offences. How can this be allowed? Additionally, both the UK and the US have ratified The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, which “forbids the forced return of any person to a country where they would risk being tortured.” And yet, the British have been fully cooperative with Assange’s extradition trial. Cruel irony, indeed, considering Assange exposed the unscrupulous torture programs of the United States.
More broadly, Assange’s trial fits into a classic authoritarian playbook. Assange is an unsympathetic target. He has been accused of skateboarding along Ecuadorian embassy hallways and rubbing faeces on the walls. He has been called “manipulative” and “power crazed” in interviews. His political opinions are unappealing to many, his endangering of confidential sources in war zones despicable. His public image makes for an easy target and distracts from the larger implications of his extradition trial. Assange’s possible extradition and prosecution could be the end of public interest journalism as we know it — all because we couldn’t defend the First Amendment rights of one irresponsible journalist.
Edited by Chris Tan.