Julian Assange is a convenient target. He is disliked by politicians on both side of the aisle and comes off as an arrogant prick in interviews. So, the prospect that Assange could be spending years in jail on federal charges might not bother you.
But they should. They should because the indictments issues by a federal grand jury today are a threat to a free press. They are a threat to whistleblowers. And they represent the latest effort by the military and intelligence establishment to close off debate, to keep Americans in the dark about what our government does in our name.
As reported by The Guardian, federal prosecutors announced a new 18-count indictment (17 new charges plus an existing none) against Assange charging him with “publishing hundreds of thousands of secret diplomatic cables and files on the wars in Afghanistan and Iraq.”
“Assange’s actions risked serious harm to United States national security to the benefit of our adversaries,” the justice department said in a statement. Officials said the publication of secret files by WikiLeaks was “one of the largest compromises of classified information in the history of the United States.”
The indictments argue that Assange
encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaksfor distribution to the public.
Assange, they say, worked with hackers to procure the information, which they claim distinguishes Assange and Wikileaks from other journalistic enterprises by putting him and the website in the position of hacker and thief, as opposed to functioning like a journalist.
This is nonsense and the indictment admits as much, stating repeatedly that Wikileaks’ goal was to “obtain documents, writings, and notes” with the intention of disseminating them. This seems the definition of journalism.
Journalists are in the business of collecting and disseminating information. Yes, we sort through the information we collect and prioritize it, make judgments about it, before publishing. But that is ancillary. We collect and we disseminate, and everything we do ultimately comes back to this. Assange, whatever warts he has, is a journalist, a publisher. His site does what all news sites should do — and he has done it in conjunction with some of the more reputable news organizations in the world.
That Assange published classified material, that he embarrassed governments, and possibly endangered national security is a conversation we can have. But that is an ethical discussion, rather than one about free speech or a free press. We can challenge the ethics of publishing the information he published, though we should only have this debate if we are willing to ask the tough questions about why we grant the government so much leeway to hide information from the public. We rarely ask that.
Geoffrey R. Stone, a First Amendment scholar, offers a useful frame in a 2006 article, describing three kinds of secrets, illegitimate, legitimate but newsworthy, and legitimate. Illegitimate secrets are those withheld from the public “because someone in government is attempting to hide an embarrassing or damning truth from public scrutiny.” These kinds of secrets “must be ferreted out and exposed.” The legitimate but newsworthy are more difficult to account for — often they government “has a legitimate interest in preventing … harm” by withholding them from the public, while at the same time the public may have a very real need for access to the information. Making public the deficiencies in safety at nuclear sites, he writes, might open them to attack while also creating the necessary public outcry needed to get the government to fix the problems.
The third kind of secrecy, which he calls legitimate but not newsworthy,” might include troop movements or the names of CIA operatives.
The problem is that all of this is a “matter of dispute,” he writes. Because of this, we need to be careful when we go after journalists and news agencies. For much of its history, the nation “has resolved this dilemma by not prohibiting the press from publishing government secrets.”
To do so would be dangerous, causing harm to press freedoms and severely impinging on the citizens’ right to know. Allowing the government broad latitude “to wield the power to prosecute the press for such publications would give government officials enormous capacity to intimidate and threaten the press and thereby undermine its vital role in our democratic system,” he writes. “To grant government officials such authority would seriously jeopardize the ability and willingness of the press to expose to public scrutiny what should be exposed.”
It’s what worries me about the comments today from John Demers, head of Department of Justice’s national security division. He said (according to Politico ) that Assange is “not a journalist” — which assumes for the government the power to make this determination. This is a terrifying concept, especially as the journalism industry undergoes such a seismic economic and technological shift. Newsrooms are shrinking and independent reporters and writers are taking to new platforms. And they are being forced to do so without the institutional protections we’d come to take for granted. Too many of us are vulnerable to government assault or legal challenge were we to publish something that the powerful find inconvenient.
We may be debating Assange, but the reality is that this is not just about him. It is about journalism. We are in the midst of the most severe curtailment of press freedoms since Nixon, with a bipartisan collection of presidents cracking down on whistleblowers, leakers and journalists alike. The prosecution of Assange is just one salvo in the broader war.