That the Assange prosecution represents a threat to the First Amendment and journalists in the United States has been widely asserted by press freedom advocates. That argument goes like this: Seeking, obtaining and publishing classified information are at the heart of what journalists do. Regardless of whether one considers Assange himself a journalist and regardless of what one thinks of his methods, the precedent set by his prosecution creates a legal vulnerability for every media organization in the United States. If making available to the public information that the U.S. government wishes to keep secret is a crime, then journalism itself is criminalized.
But in fact, what the U.S. government is asserting through its prosecution of Assange is far more sweeping and far more dangerous. Assange is not an American. He’s Australian. The criminal acts Assange allegedly committed all occurred outside the United States. Thus the United States is asserting extraterritorial jurisdiction in a publishing case, a practice usually reserved for terrorism or piracy. Under this rubric, anyone anywhere in the world who publishes information that the U.S. government deems to be classified could be prosecuted for espionage.
This is a threat to journalists in Colombia, who have reported on the presence of U.S. forces in their country. It’s a threat to journalists in Pakistan, who have reported on ties between the U.S. government and the country’s shadowy intelligence service. It’s a threat to journalists in France, who have reported on U.S. counter-terrorism operations in North Africa.
Equating the publication of classified information with espionage also strengthens the hand of repressive governments who routinely jail journalists for publishing information they wish to keep secret. Over the past three years, record numbers of journalists have been imprisoned around the world, according to data collected by the Committee to Protect Journalists. Seventy percent of them are jailed on anti-state charges. Governments have even prosecuted foreign journalists for espionage. In June 2018, a Russian court sentenced Ukrainian journalist Roman Sushchenko to 12 years in prison.
Under the legal theory advanced by the the Justice Department in the Assange case, American journalists, including correspondents around the world, could be vulnerable to similar prosecutions. Before such a notion is dismissed as a hypothetical threat, consider that at least one country, Iran, has repeatedly jailed American journalists for alleged espionage, among them The Post’s own Jason Rezaian, who spent 544 days in prison on such spurious charges.
Under the Obama administration, the Justice Department considered indicting Assange under the Espionage Act but in the end declined to do so because it had determined that such a prosecution would pose a fundamental threat to the First Amendment. When the Trump administration indicted Assange on a single count of conspiracy under the Computer Fraud and Abuse Act following his expulsion from the Ecuadoran Embassy in London last month, some press freedom advocates breathed a sigh of relief, arguing that the indictment for computer hacking was narrowly tailored to avoid threatening press freedom.
But with the indictment against Assange under the Espionage Act, the gloves are off. In fact, the sweeping nature of the Assange indictment seems intended to inflict maximum damage on the media, threatening not only the legal protections that journalists enjoy but also the way in which their work is perceived.
The Assange indictment needs to be viewed in the context of the four other Espionage Act prosecutions the Trump administration has pursued against leakers, and also the president’s unceasing verbal attacks on the press, which have undermined public trust in the media and strengthened the hands of dictators and tyrants who routinely throw journalists in jail. This is why prosecuting Assange under the Espionage Act would represent an unprecedented threat to journalists worldwide.
Assange may not be a comfortable figure for journalists to rally around. But that’s exactly what they must do.