Last week, the Justice Department unveiled a new 18-count indictment against WikiLeaks founder Julian Assange. Prosecutors charged Assange with violating the Espionage Act for actively soliciting classified information from former Army intelligence analyst Chelsea Manning and then disclosing that information on WikiLeaks. First Amendment advocates have raised concerns that the government’s legal theory could be applied to journalists at mainstream media outlets. But there’s probably little reason to fear that the Assange indictment portends a new assault on the free press.
The indictment charges that Assange worked with Manning to obtain thousands of classified documents related primarily to the wars in Iraq and Afghanistan and the detention center at Guantanamo Bay, which Assange then released wholesale on WikiLeaks. It also charges Assange with publishing the names of individuals who had secretly provided information to the United States, knowing that doing so placed those sources in grave danger.
Assange was initially charged only with conspiring with Manning to hack into a government computer. But the addition of the Espionage Act charges has set off alarms among journalists. It’s the first time the law has been used to charge someone with publishing (as opposed to leaking) classified information. Mainstream journalists who obtain and publish classified information from government sources, while expressing little sympathy for Assange, worry that this same legal weapon might be turned on them.
Most of us would agree the government needs to be able to keep some secrets; information about troop movements during wartime is the classic example. The identities of those who secretly helped the United States during wartime at great personal risk also should fall into this category.
On the other hand, most of us would also agree that the government classifies far too much material. It often tries to keep information secret not because revealing it would truly harm national security but because it would be embarrassing or politically damaging. The media has always played a vital role in rooting out and exposing such information and helping hold the government accountable.
The rise of the Internet shifted this long-standing and healthy tug of war onto a new terrain. In the past, government authorities could expect that journalists who obtained classified material would fact-check what they received, contact the government for comment, and at least consider arguments that publishing the information would endanger national security. Mainstream journalists still do that today. But now outlets such as WikiLeaks are happy to throw reams of leaked documents up on the Internet for our enemies to see, with no screening or analysis or conversations with government officials.
In light of this new reality, the government has in recent years brought more cases against government officials and contractors who leak, seeking to deter the flow of classified information at the source. You frequently hear that the Obama administration prosecuted more leakers than all prior administrations combined. Although that statistic sounds dramatic, it still amounted to only about one leak case per year. The Trump administration has further accelerated that pace, reportedly tripling the number of leak investigations and prosecuting four leak cases in the past two years. But all those cases were against the leakers who violated the law and their job duties, not journalists who published the information.
Now, the Trump administration has gone a step further and charged Assange for publishing leaked information, a step the Obama administration reportedly declined to take. Those charges apply not to everything that Assange disclosed, but only to the narrow subset of documents that identified confidential intelligence sources and allegedly put them at risk. Whether this indictment represents an escalating threat to the free press does not depend on whether Assange is a “journalist” — a term that probably defies any constitutionally sound definition. It depends on whether the Trump administration will choose to walk further across what had historically been a red line.
Nothing has changed in the language of the criminal law. For a century, the Espionage Act has potentially applied to journalists, and for sound constitutional and policy reasons prosecutors declined to bring such cases. Much of responsible law enforcement rests on such prosecutorial discretion. The question now is whether a Justice Department led by a president who calls the press the “enemy of the people” will dramatically change how it exercises that discretion.
But despite the president’s bluster, the Assange case is probably a one-off. It involves not a routine leak but one of the largest disclosures of classified information in U.S. history. When announcing the indictment, Justice Department officials took great pains to note the department’s respect for the role of the media and that Assange was not being charged for the mere receipt and publication of classified information. It’s hard to imagine even this administration willingly igniting the constitutional conflagration that would result from expanding this theory of prosecution beyond the unique facts of the Assange case.
The historic tension between a government trying to keep some secrets and a free press seeking to hold government accountable generally has served this country well. Within that constant back and forth, there should be room to allow the pursuit of bad actors such as Assange without inhibiting legitimate journalism. Given President Trump’s attacks on what he calls the “fake news,” there is certainly cause for vigilance. But absent actual signs to the contrary, we shouldn’t assume that the skirmish over Assange signals the opening of a new front in the president’s personal war on the media.