Few American media organizations seem to have noticed, but the U.S. Justice Department has spent the past few weeks trying to persuade the Central Criminal Court of England and Wales to extradite Julian Assange to the United States to face charges under the 1917 Espionage Act. The hearing is scheduled to wind down at the end of this week. At this point Assange has alienated pretty much everyone, including many erstwhile supporters, and few people on this side of the Atlantic seem troubled by his indictment or by the possibility that he will be extradited, tried, convicted, and imprisoned. This is unfortunate, and not only for him. It may be Assange in the dock, but it’s national security journalism on trial.
A few months ago, at the request of Assange’s lawyers, I submitted expert testimony to the court about the press freedom implications of the case. I wrote that the Espionage Act criminalizes activity that is integral to press freedom; that public deliberation about war and security depends on the ability of the press to publish classified secrets; that in recent years, the U.S. government has used the Espionage Act increasingly aggressively against government insiders who supply information to the press; and that the prosecution of a publisher under the Act represents the crossing of a perilous new frontier. I noted that Assange’s case is the first in which the U.S. government has relied on the Espionage Act as the basis for the prosecution of a publisher.
The Justice Department has insisted that Assange’s case has no relevance to press freedom because Assange is not himself a journalist. I explained in my testimony that this argument misses the point. The indictment focuses almost entirely on the kinds of activities that national security journalists engage in routinely and as a necessary part of their work—cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information. It’s these activities that the government is attempting to criminalize. For this reason, the Assange proceeding is—to borrow a phrase— “a loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets.”
The Justice Department’s indictment of Assange under the Espionage Act was intended to deter journalism that is vital to American democracy. The successful prosecution of him based on the activities described in the indictment would have precisely that effect. It’s unfortunate that Assange’s case hasn’t received more attention on this side of the Atlantic.
The testimony I submitted a few months ago, and which was read to the court earlier today, is here.
Jameel Jaffer is Executive Director of the Knight First Amendment Institute.