WASHINGTON — WikiLeaks founder Julian Assange is the first person charged under the Espionage Act for publishing classified information who wasn't the actual government leaker, and press freedom groups warn this puts journalists at risk going forward.
A federal grand jury returned a new indictment against Assange adding 17 charges to the single-count indictment filed against him in March 2018. He was originally charged with conspiring with former Army intelligence officer Chelsea Manning to try to hack into the Department of Defense computer network to obtain information. The latest indictment goes much further, charging him under the Espionage Act not only with helping Manning and receiving national security information without authorization, but also with publishing it.
Reaction from press freedom groups was swift and ominous. Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press, told BuzzFeed News in an interview that the charges are "a direct threat to news gathering, journalists, and news organizations who do that for the public benefit."
Ben Wizner, director of the ACLU's Speech, Privacy, and Technology Project, said in a statement that the indictment represented an "extraordinary escalation of the Trump administration's attacks on journalism, and a direct assault on the First Amendment." The Committee to Project Journalists tweeted that it "strikes at the heart of the First Amendment and puts all journalists in extreme danger."
Assange's attorney Barry Pollack said in a statement Thursday that the new charges were "unprecedented," and legal experts say he's right. Assange was charged under 18 USC 793(e), which makes it a crime to communicate, deliver, or transmit national security information without authorization. The bulk of cases brought under the Espionage Act have been against government employees who accessed classified or other sensitive information and leaked it to journalists and others. According to lawyers who spoke with BuzzFeed News, there has only been one previous case in which third parties were prosecuted for sharing leaked information, and in that instance, they didn't actually release it to the public.
That earlier case, which was filed in the US District Court for the Eastern District of Virginia — where Assange is charged — involved two lobbyists for the American Israel Public Affairs Committee accused of receiving classified information from a Defense Department analyst and sharing it with AIPAC, journalists, and diplomats. The Justice Department dropped the case in 2009. The New York Times reported at the time that some DOJ lawyers had doubts, and the government's position had been undermined by several rulings from the judge.
Stephen Vladeck, a law professor at the University of Texas School of Law who has written about the Espionage Act and the AIPAC case, told BuzzFeed News that although the lobbyists faced the same charge that Assange is now facing, that case didn't involve publishing information.
"I think there’s general agreement that the statute authorizes prosecution of third parties, and that the statute authorizes prosecution for publishing. But does the First Amendment have anything to say about that? That’s the prosecutorial rubicon that the government never previously had tried to cross," Vladeck said.
Vladeck said the new charges could also complicate the US government's efforts to extradite Assange from the UK, where until recently he'd lived for years as an asylum-seeker in the Ecuadorian Embassy in London. He was arrested in April after Ecuador revoked his asylum status, and is serving a 50-week sentence for violating bail conditions imposed in the UK while he was facing allegations of sexual assault in Sweden. Assange is expected to argue that he's being targeted for political reasons, and his lawyers could point to the new charges as further proof, Vladeck said.
Rottman said the government had come close a few times to charging journalists under the Espionage Act, but never did so. In 1975, for instance, the Justice Department considered pursuing charges against journalist Seymour Hersh for reporting on US surveillance of the then–Soviet Union; no charges were brought. Whether or not someone believes Assange is a journalist — the Justice Department contends he is not — is irrelevant, Rottman said. What's important, he said, is that Assange is being prosecuted for what journalists routinely do, which is gather information from government sources and publish it.
"To the extent that the government is seeking to criminalize the receipt and publication of classified information, that is a threat to journalists," Rottman said.
Speaking to reporters earlier Thursday, John Demers, head of the National Security Division at the Justice Department, pushed back on the notion that they were going after journalists. He said that "no responsible actor — journalist or otherwise" would publish the type of information that Assange released, which included the identities of sources overseas working with the US military who faced risk of retribution.
The Justice Department has clashed for years with news outlets over how much power prosecutors should have to subpoena journalists during investigations. Under the Obama administration, when there was an uptick in leak prosecutions, former attorney general Eric Holder revised the subpoena guidelines amid revelations that the department had obtained emails and phone records from reporters. In August 2017, then–attorney general Jeff Sessions announced that the department was reviewing the policies, leading to speculation that it might consider rolling back the stricter Holder rules. No changes were announced.
"The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and never has been the department’s policy to target them for reporting. But Julian Assange is no journalist,” Demers said Thursday.