This question is not going away, especially as the United States has terminated the rule of law, replacing it with a “rule based order” – their rules, their order
Raja Stutz is an activist in Berlin who has supported the campaign to free Julian Assange
Translated from the German by BRAVE NEW EUROPE
Julian Assange is free. In a plea deal, he pleaded guilty to one of a total of 17 charges brought against him by the US: ‘conspiracy with a source to obtain and disseminate national security information’, ‘as defined in the indictment’.
But are whistleblowers, journalists or publishers ‘conspirators’? Has a precedent not been set here, the dangers of which should be much more clearly stated?
The US indictment against Assange was based on an espionage law, the Espionage Act. A look at history shows that this law has often been used in attempts to prevent critical reporting.
Is Julian Assange a conspirator? The history of the Espionage Act
The Act was enacted on 15 June 1917 during the First World War and was subsequently used against thousands of people who spoke out against the war and conscription.
In 1971, it was used by the Nixon administration in the famous Pentagon Papers case against analyst Daniel Ellsberg, who had leaked a secret military study on the Vietnam War to the New York Times and Washington Post. The study uncovered lies about the beginning and course of the Vietnam War and showed that the war had been expanded without the knowledge of the population and had actually already been recognised as hopeless, while successes continued to be reported and soldiers were sent to their deaths. The publication of the Pentagon Papers changed public opinion about the war and heralded the end of the Vietnam War.
The indictment against Ellsberg marked the first time the controversial law was used against a whistleblower, i.e. a person who discloses classified information to the public for reasons of conscience. However, the case was eventually dropped due to government misconduct after the office of Ellsberg’s psychiatrist was broken into with Nixon’s authorisation in order to steal incriminating material.
The Nixon administration also used the Espionage Act against the New York Times and attempted to obtain an injunction to prohibit the newspaper from publishing further portions of the Pentagon Papers after the initial publications. This was the first attempt by a US government to censor a newspaper in a federal court. However, the court decided against a publication ban in the interests of press freedom.
Pentagon Papers: US Department of Justice ‘taken with the conspiracy approach’
According to James Goodale, the former New York Times lawyer and author of the book ‘Fighting for the Press’, who represented the NYT in the historic Pentagon Papers case, the Department of Justice has been ‘enamoured with this conspiracy approach’ since that case.
Since the Obama administration in 2009, the use of the Espionage Act against whistleblowers has increased significantly. Trump and Biden continued to prosecute whistleblowers under the Espionage Act.
Most of them served a prison sentence of only a few years because they agreed to a plea deal. Some were able to avoid a prison sentence through such a deal (Thomas Drake) or live in exile (Edward Snowden). Others, however, were sentenced to long prison terms (Chelsea Manning to 35 years, Joshua Schulte to 40 years).
Jameel Jaffer, professor of law and journalism and executive director of the Knight First Amendment Institute at Columbia University, wrote in 2019 about the Espionage Act and the increasing condemnation of whistleblowers: ‘The law erases all distinctions that should be relevant in such cases […] It fails to recognise the difference between whistleblowers and spies. The now routine use of the Espionage Act against journalists’ sources suggests that the government has also lost sight of this distinction.’
However, there has never been a successful prosecution of a publisher or journalist. James Goodale warned back in 2019, when there were indications of a secret indictment against Assange, against such a prosecution because of its importance for press freedom: ‘To date, there has never been a prosecution for such actions […] If the prosecution is successful, it could well be the death sentence for investigative reporting based on classified information.’
Is the publication of secret documents illegal in principle?
Nevertheless, the fundamental significance of the charges against Assange for the freedom of the press is repeatedly called into question by various allegations. In particular, it is often claimed that the publication of ‘secret documents’ is illegal and that Wikileaks did not practise proper journalism, as they simply put all the data online without redaction.
One example is the assessment of ZDF correspondent Heike Slansky from Washington on 25 June 2024: Employees from the security and military sectors in particular are not happy about Assange’s freedom, as ‘of course the act of reproducing secret documents is a criminal offence here in this country’. Furthermore, some journalists are unhappy with the decision, as some critics believe that Julian Assange should not be considered a journalist, as he published the the data completely unredacted’.
Mark Feldstein, an award-winning journalist, historian and professor at the University of Maryland, dealt extensively with the question of whether it is illegal to publish secret documents in his report, which he submitted to the court as an expert witness in the extradition proceedings surrounding Julian Assange in 2020.
In this report he presented a long list of examples of well-known journalistic publications of the last centuries, such as the publications on the ‘Watergate affair’, to name just one example, which were all based on secret documents. He also presented several study results, all of which showed that the publication of secret documents in journalism was ‘the order of the day’.
At the Belmarsh Tribunal in Washington DC in December 2023, Feldstein summarised: ‘The prosecution of Julian Assange is a first in American history. The publication of state secrets, on the other hand, is nothing unusual, but something commonplace. It has happened thousands of times since the 1790s. But never before has a publisher been thrown in jail for what he published.’ One can conclude from this: The charges against Assange are an ominous precedent.
At this point, it should also be noted that charges under the Espionage Act are not limited to classified information, but in principle apply to all ‘national security’ information. Human rights lawyer and Espionage Act expert Carey Shenkman, co-author of ‘A Century of Repression: The Espionage Act and Freedom of the Press’, said in June 2024: ‘It doesn’t have to be military secrets, codes or closely guarded information, it doesn’t even have to be classified. It can also be evidence of torture, war crimes, corruption or government criminality.’
Did Wikileaks handle data irresponsibly?
The accusation that Wikileaks did not practise proper journalism because Assange handled data irresponsibly cannot be upheld. WikiLeaks did indeed publish the State Department dispatches unedited. However, this was only after they had already been published completely unredacted by John Young on his website cryptom.org and this had already been discussed on Twitter.
The fact that this could happen at all was ultimately due to the fact that a Guardian reporter published a password to an encrypted file containing the documents in a book. WikiLeaks then wanted to make this already published information available to the general public as quickly as possible and therefore published it unedited, which was indeed sharply criticised by its media partners.
However, this was not the ‘principle’ of Wikileaks, nor did the indictment primarily relate to these publications: Only three of the 17 charges related exclusively to these publications. All other charges were aimed at all the material leaked by Manning, which was otherwise carefully scrutinised, edited and published in cooperation with the major media.
What does Assange’s plea deal mean for press freedom?
Now that Assange has pleaded guilty to ‘conspiracy to obtain and publish national security information’, what are the consequences for freedom of the press?
In the WikiLeaks press conference in Canberra, Assange’s lawyer Jennifer Robinson, who has represented Assange legally for 14 years, said that this agreement ‘is not a precedent because it is not a court decision’. However, the prosecution itself is a precedent that can be used against the rest of the media, she said.
Journalists or publishers: Assange is Australian, he was in the UK and was also not in the USA during the publications. Shortly after the trial, Jennifer Robinson therefore warned the Guardian: ‘The US is trying to exercise extraterritorial jurisdiction over all of you without giving you the constitutional protections of free speech, and anyone who cares about free speech and democratic accountability should oppose this. I would encourage all those who have stood up for Julian Assange to continue to resist this dangerous precedent.’
In an interview for Sky News on 27 June, Robinson said: ‘Given the impact on freedom of expression and the chilling effect of this prosecution, we are not only keen to see a pardon for Julian, but also a change in the law to ensure that no other journalist can be prosecuted in this way under the Espionage Act.’
Human rights lawyer and founder of the European Center for Constitutional and Human Rights (ECCHR) Wolfgang Kaleck also told ZDF on 25 June that this law ‘should actually be abolished’.
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