The truth is that there is no way that American news organizations could report responsibly about war, foreign relations or national security without sometimes disclosing classified information. Max Frankel of The New York Times famously made this point in an affidavit filed 50 years ago in the Pentagon Papers case, and the point is even more true today.
The ruling issued in London on Monday by Judge Vanessa Baraitser will forestall the Justice Department, at least for now, from pursuing Assange’s prosecution in U.S. courts. This is a significant thing. While the indictment certainly has a chilling effect on national security journalism, a successful prosecution of Assange under the Espionage Act would be even more oppressive — indeed, it would likely compel U.S. news organizations to radically curtail some of the most important work they do.
The problem with Baraitser’s ruling, from the perspective of press freedom, is that it rejected the extradition request only because of concerns relating to Assange’s mental health and the conditions in which he would be imprisoned were he handed over to the United States. This aspect of Baraitser’s ruling appears to be well supported by the evidence, but, significantly, its protection does not extend beyond Assange.
On all of the issues that will matter in other cases, Baraitser sided with the Justice Department. She rejected Assange’s argument that he could not be extradited for the commission of a “political offense.” She rejected his argument that his acts were protected under the European Convention on Human Rights. She rejected or sidestepped all of his challenges to the breadth and vagueness of the Espionage Act. If the U.S. Justice Department asks the U.K. to extradite a journalist next week, or next year, Baraitser’s ruling is unlikely to present any obstacle. To the contrary, the ruling is certain to be featured prominently in the Justice Department’s legal papers.
And who can doubt that there will soon be another such case? The broad scope of the Espionage Act has always been an invitation to abuse, which is why two prominent legal scholars once described it as “a loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets.” In recent years, the government has begun to exploit the act’s breadth in ways that directly implicate press freedom. The Bush, Obama, and Trump administrations all used the act to prosecute journalists’ sources, and now these kinds of prosecutions have become almost routine.
The government is for the first time using the Espionage Act to justify the prosecution of a publisher — a step that reflects the crossing of a perilous legal frontier.
With the Assange case, the government is for the first time using the Espionage Act to justify the prosecution of a publisher — a step that reflects the crossing of a new and perilous legal frontier. Baraitser’s ruling, which raises no objections to this frontier having been breached, is a further indication that a vise is tightening. It would be naïve to believe that these changes in prosecutorial practice and judicial interpretation will not have a significant effect on the ability of journalists to do their work.
Of course, there is a new administration in the wings, and it could revisit the Trump administration’s decisions. The Washington Post reported in 2015 that the Obama administration’s Justice Department had decided against indicting Assange under the Espionage Act because of concerns relating to press freedom. The Trump administration apparently did not share these concerns, but the Biden administration should.
The past four years have underscored the extent to which our democracy depends on the ability of journalists to report government secrets. At this particular moment, we should be establishing new protections for journalism, not subjecting it to new constraints. This latest decision may protect Assange, but it leaves journalists and publishers at the mercy of prosecutors. That is unfortunate. Neither journalists nor publishers should have to risk criminal prosecution in order to do work that the public urgently needs them to do.