The Intercepted Podcast: The Justice Department’s Indictment of Julian Assange is an Assault on Press Freedom

May 29, 2019

Jeremy Scahill: Joining me now to discuss all of this is Jameel Jaffer. He is the Director of Knight First Amendment Institute at Columbia University. He’s the former Deputy Legal Director at the American Civil Liberties Union. Jameel was one of the main lawyers fighting against the Bush and Obama administrations assassination programs and violations of civil liberties.

Jameel Jaffer, welcome to Intercepted.

Jameel Jaffer: Thank you.

JS: So on May 23rd, the Justice Department issued the superseding indictment in the Julian Assange case, the founder of WikiLeaks. What does this indictment allege that Julian Assange did that’s criminal?

JJ: It is very difficult to tell from this indictment precisely where the government thinks the line is. So, plainly the indictment includes allegations relating to Assange’s agreement with Chelsea Manning to help hack a particular password relating to government database —

JS: This was the first charge that they floated that triggered the extradition request?

JJ: Right, there was an earlier indictment, right, just a few weeks earlier. That indictment was for a violation of the Computer Fraud and Abuse Act. This indictment is for violations of the Espionage Act, 18 counts. And most of the indictment describes conduct that ordinary journalists, investigative journalists, national security journalist engage in every day. That’s why I say it’s difficult to see where the government thinks the line is because virtually every story about national security policy that’s on the front page in The New York Times or The Washington Post is the result of conduct of the kind that is described in this indictment of Assange. So, what constitutional line is it that Assange is on one side of and “journalists” are on the other side of? You know, that’s the question that I think we need to ask.

JS: You’ve been immersed in these issues for many years, especially in your prior work at the ACLU. You were one of the main people litigating on issues of drone warfare and targeted assassination. A lot of the information we have about those programs come from news organizations publishing documents, including WikiLeaks also publishing documents showing what many people would say are clear war crimes particularly the helicopter gunship attack on Iraqi civilians and Reuters News journalist.

[Footage of U.S. Apache attack helicopter:  

TK: Got a bunch of bodies laying there.

TK: We got about eight individuals.

TK: We got one guy crawling around down there.]

JS: Is there anything in this indictment that would allow someone to say “well, this isn’t journalistic conduct and Assange wasn’t acting as a journalist”? Is there anything in the indictment that the Justice Department is alleging about Assange and WikiLeaks under the espionage charges not the computer hacking stuff that The New York Times, [The] Washington Post, The Intercept wouldn’t also be guilty of?

JJ: Well, so first, I absolutely agree with you that what we know about, you know everything from the Bush administration’s torture policies to warrantless wiretapping, all of that or almost all of it comes from whistleblowers — people who are willing to violate the law, the Espionage Act — because they thought that the public deserved to know more than the government was telling it. As to your question about, you know, what is it that somebody could point to in this indictment that might help distinguish Assange from everybody else. Well, you know there is this agreement that Assange and Chelsea Manning apparently entered into with Assange volunteering or offering to crack a password that would have allowed Manning to access a government database under a different username. So, even if this had been successful it wouldn’t have resulted in Manning been a being able to access any additional documents. But at least according to the indictment, this agreement Assange couldn’t or didn’t actually crack the password. So, nothing happened as a result of this.

JS: But that’s not an espionage-related charge, is it?

JJ: I mean, it’s hard to see how you could charge that alone under the Espionage Act. I think that the government would say that the publication of all this stuff by Assange or certainly the dissemination of it by Manning to Assange violated the text of the Espionage Act and insofar as there is a First Amendment defense, it doesn’t apply to somebody who entered into this kind of agreement. That’s the way that the government might explain the relevance of that agreement.

The problem with that is that the agreement came very late in this process of Manning providing information to Assange. Most of the documents were provided long before they entered into this disagreement. Manning already had access to the documents that she had access to and she had already provided most of them to Assange and she didn’t get access to any more documents as a result of this agreement. So, it’s certainly not obvious how that agreement can play this sort of crucial role that the government seems to think it does.

JS: In reading some of the indictments of journalistic sources or whistleblowers, alleged whistleblowers under the Trump administration, there’s a narrative that seems to have as part of its goal criminalizing normal journalistic tactics. For instance, suggesting to sources to use encryption or trying to figure out secure ways of communicating with sources. The New York Times, The Washington Post, The Intercept all news organizations now have some form of a portal where they are soliciting leaks.

JJ: Yeah.

JS: They’re soliciting leaks on this president. They’re soliciting leaks on national security issues. How is it different what The New York Times or The Intercept is doing when you compare it to WikiLeaks from this indictment? It really seems like much of the trade craft of journalism these days, the tools for journalism these days are being by default criminalized in these indictments.

JJ: Investigative journalists spend time cultivating sources, communicating securely with those sources, protecting their sources’ identities. Those are things that journalists do routinely and legitimately. And this indictment spends a lot of space describing those acts in terms that tar those acts by association with the Espionage Act. I actually think that this indictment is aimed at the media. It’s not about Assange specifically. The indictment is about the media and I say that in part because the indictment is framed so broadly. The language in the indictment is describing journalism, but also because I don’t think that the Justice Department would have filed this indictment if its main concerns or its main goal was to bring Julian Assange to an American courtroom.

Espionage is uniformly regarded to be a political crime which means that countries don’t extradite for espionage offenses and the Justice Department knows this very well. When the only indictment that has been filed was for violation of the Computer Fraud and Abuse Act, it was entirely conceivable that Assange would be extradited to the United States to face trial for that charge. But this, I can’t see how the Justice Department wouldn’t have known that filing Espionage Act charges would profoundly complicate its efforts to get Assange extradited to the United States.

The best way to understand the indictment is it’s not about Assange. It’s about the American media. It’s about sending a message to investigative journalists or national security journalists whose work is described in the indictment. And the message is what you’re doing is possibly criminal. You know, you mentioned some of the practices that are common across the American media landscape. I hope that media organizations won’t reconsider those practices in light of this indictment but I’m sure that their general counsels in many media organizations in the United States right now who are thinking carefully about whether they need to operate differently as a result of this message that the Justice Department seems very intentionally to be sending that journalist who practice this kind of journalism are at the very least, on thin ice.

JS: Knowing what you just said about complicating the extradition, why would they spend the resources and engage in this case if they really knew there was almost no chance? You really think it’s centrally about threatening news organizations?

JJ: I think so. Yes, and I think that that is a plausible explanation for their decision given everything that led up to this. You know, we have seen an increasingly aggressive use of the Espionage Act over the last 18 years against, principally, leakers. Historically, it was very rare for the government to use the Espionage Act against people who gave information to the press but starting with the Bush administration and then much more aggressively under the Obama administration, the Justice Department has you used the Espionage Act to go after whistleblowers and leakers who gave classified information to the press. And you know the Obama administration prosecuted more of these cases than all previous administrations combined. So, that was a very aggressive use of the Espionage Act.

But we until now, hadn’t seen the Justice Department cross this next line and the next line is not just against whistleblowers and leakers but against publishers and that’s the line that they’ve now crossed. But I think given everything that led up to this the statements that President Trump and then-Attorney General Sessions gave to the media last year and the year before about leak investigations.

Jeff Sessions: This include leaks to both the media and in some cases even unauthorized disclosures. Nearly as many criminal referrals involving unauthorized disclosures of classified information as we received in the previous three years combined.

JJ: The Attorney General said to the press that the Justice Department had 27 ongoing leak investigations, which is nine times as many as the Obama administration had going.

When Jim Comey’s memos got leaked to the press, Comey’s memos described a meeting in which Comey himself suggested that the government should jail more leakers and President Trump said why stop at leakers, we need a reporter in prison as well, then they’ll learn. I think it’s you know, perfectly plausible that the point of this indictment was not to ensure that Julian Assange would answer for whatever crimes the government thinks he should answer for. The purpose of the indictment was to chill investigative journalism that challenges the government’s authority to decide what information the public should have about controversial national security policies.

JS: Let’s also remember that very senior U.S. officials and prominent political figures have suggested assassinating Julian Assange, sending a drone to go and get him. I mean, one thing about Julian Assange is he does have a pretty interesting —

JJ: Brings out the best in people.

JS: Brings out the best in people but he also has an interesting track record of being right about the actions of the state and —

JJ: Well, he does in some respects but you know, you asked me earlier what distinguishes Assange. So, the other — and I made one point which is this you know, this agreement that Assange entered into with Chelsea Manning. There is something else that the government points to in the indictment which is Assange’s decision to publish the names of human sources, right, indiscriminately. And you know, I actually think that that decision was reckless and unethical, his decision to publish those names. It doesn’t trouble me that Assange is criticized for his decision to do those things and there might even be scenarios in which I could imagine some form of legal accountability for the decision to publish those names indiscriminately.

JS: Assange would take issue with your characterization of this and —

JJ: As indiscriminate? OK, so just stipulate that it’s indiscriminate with the asterisk, OK, that maybe I’m wrong about that. But if it was indiscriminate, right, I still think that the dangers of allowing the government to file Espionage Act charges against any publisher who makes that kind of mistake even recklessly, right, far outweigh the dangers of allowing publishers to make those decisions for themselves. But that’s just my sort of response to your I think, entirely fair point that Assange has been right about many things. Yes, absolutely. He’s also been wrong about some things.

JS: Don’t get me wrong here, and I have questions about non-Manning provided documents published by WikiLeaks and some of the decisions that he’s made but that’s not what this is about at all.

JJ: That’s right.

JS: And in fact, that raises the question, these were primarily documents published around 2010-2011 that we’re talking about here. This isn’t about Russia. This isn’t about the 2016 election. This is about Chelsea Manning and documents on the State Department, U.S. military, war crimes, etc.

JJ: These are documents of huge public significance, in my view.

JS: No one talks about what they actually showed. But why did President Obama and his Justice Department decide not to bring this case? The former Obama-era Justice Department spokesman, Matt Miller said the following back in 2013: “The problem the department has always had in investigating Julian Assange is there’s no way to prosecute him for publishing information without the same theory being applied to journalists.” Why ultimately didn’t Obama go forward with this? He was just, you know, racking and stacking journalistic sources under the Espionage Act. Why didn’t they do this?

JJ: I take that statement at face value because it seems plausible to me that the Obama administration looked very carefully at charging Assange or charging WikiLeaks and decided that there’s no line that could be drawn between WikiLeaks and media organizations that the Obama administration did not want to take on and whose work the Obama administration respected even if they disagreed with individual publishing decisions occasionally and that they concluded that the First Amendment damage would be far more significant than they could defend and for that reason they decided not to file charges. All that seems plausible to me.

The current administration changed course not because they had a different view of Assange or because they had a different theory of prosecuting Assange specifically, but because they wanted to send a message to precisely the media organizations that some people in the Obama administration were, this may give them a little more credit than they deserve, but trying to protect. The Obama administration didn’t want to do this kind of damage to the First Amendment. This administration is motivated by the desire to do that kind of damage to the freedom of the press. I think that’s what this indictment is about.

JS: UCLA law professor Eugene Volokh broke down the charges in the indictment, including the ways in which Assange may not be protected under the First Amendment in his view, but he also points out that counts that criminalize publishing materials known to have been illegally leaked. He said this: “In Bartnicki vs. Vopper, 2001, the court made clear that third parties are generally free to publish material that they know was illegally gathered.” He then goes on to write, “But the government’s theory appears to be that this doesn’t apply to illegal leaks of national defense information.” Is the government trying to build a case to criminalize publication of leaks that have at their center “national defense information”? What do they even mean by that phrase, national defense information?

JJ: That’s a phrase from the Espionage Act. It’s not defined in the Espionage Act, but courts have generally interpreted that phrase to mean classified information. Anything that’s classified is within the reach of the Espionage Act, which is, you know, an extremely troubling thing because the Espionage Act reaches not just the initial disclosure by the leaker to the press but also, the disclosure by the press to the public and any subsequent disclosure. So, if you read the Espionage Act literally, even our conversation right here about things that were originally disclosed by Manning to Assange and then reproduced, you know, a million times in the New York Times or Der Spiegel or whatever or The Intercept, right and now we are having a conversation about those disclosures, even this conversation if you read the Espionage Act literally, is unlawful which is crazy, right?

So, for many years most legal scholars, I think every single First Amendment scholar, has had the view that the Espionage Act would be unconstitutional as applied in some circumstances, but in which circumstances it’s constitutional and in which circumstances it’s unconstitutional, that’s a very murky question. There is this case that Professor Volokh refers to Bartnicki from 2001 where the court held that the publication of an intercepted, illegally intercepted phone call couldn’t be prosecuted. The First Amendment barred the prosecution because at least in a situation where the publisher hadn’t participated in the illegality. So, then there’s the question: well, what does this, you know, concept of participation in the illegality mean? And, you know, one theory of the Assange indictment is that the government believes that by offering to hack this password, Assange became a participant in the illegality.

But you know the problem with that theory is that illegality was not the source of the documents. The documents were all leaked or almost all of them were provided to Assange before that illegality took place. So, that’s the trouble with that particular theory. So, if you take that theory out of the equation then what are you left with? You’re left with what Eugene Volokh says is, you know, this in a way much broader theory that what distinguishes Bartnicki in the government’s view is not that Assange was a participant in the illegality, whereas the publisher and Bartnicki wasn’t, but that Assange was publishing national defense information or government secrets, you know, national security secrets, whereas Bartnicki didn’t involve national security secrets. You know, if that’s the government’s theory, then it really does mean that national security journalism is criminal.

JS: One of the top lawyers under the Bush administration, Jack Goldsmith, who is a co-founder of the Lawfare blog wrote the following on this point: “The New York Times menu, like on their webpage includes Secure Drop, ‘an encrypted submission system set up by The Times [that] uses the Tor anonymity software to protect [the] identity, location and the information’ of the person who sends it.” He said, “Like WikiLeaks, these reporters and organizations encourage the sources to provide the ‘protected information’ for public dissemination and also like WikiLeaks, they often encourage the sources to engage in a ‘pattern of illegally procuring and providing protected information.” This was a top lawyer under George W. Bush.

JJ: Yeah, yeah, you know, it goes back long before Secure Drop, right? Now, as you say, media organizations use Secure Drop to —

JS: Woodward was meeting Deep Throat in a garage, was that criminal?

JJ: And, you know, I think The New York Times has probably had a tip line for you know, a hundred years, right? So, this is not new. This is journalism. This is what it’s always been.

JS: If this prosecution were to go forward and Assange was convicted under the Espionage Act, what would that mean for the First Amendment and for freedom of the press in this country?

JJ: You know, I think it would be a huge blow to the freedom of the press and more importantly a huge blow to the public’s ability to understand government conduct and to hold government decision-makers accountable for their decisions. If we’ve learned anything from history, it’s that relying on the people who put these programs in place to tell us the full story about the effectiveness and lawfulness and morality of these programs, you know, it would be a huge mistake. You know, we know what the Bush administration told the public about the interrogation of prisoners and then we know what we learned from whistleblowers and from investigative journalism.

George W. Bush: This government does not torture people. You know, we stick to U.S. law and our international obligations.

JJ: And what the government was actually doing was waterboarding prisoners using the same techniques that the Viet Cong had used, right, on American prisoners. You know, you see a similar divergence of narratives with respect to the drone program, right, where the government is saying, you know, that civilian casualties are in the single digits.

Barack Obama: What we have been very cautious about is making sure that we are not taking strikes in situations where for example, we think there’s the presence of women or children or if it is a normally populated area.

JJ: Journalists like you who actually report, you know, based on conversations with people on the ground and going to the places where these drones are used find out that civilian casualty numbers are in the hundreds or even thousands. This is a pattern that goes back long before 9/11 but I think since 9/11, it’s probably been especially pronounced where you know, what the government tells us about national security policy is quite different from what is actually true about national security policy.

JS: Are we on the road toward having an Official Secrets Act?

JJ: If the government were —

JS: Successful.

JJ: Were successful in prosecuting Assange on the theory that is laid out in this indictment, it would essentially be introducing an Official Secrets Act. I worry that you know, prosecuting Assange is actually not even necessary to at least getting us some way towards that end because you know, news organizations are going to have to now operate under the shadow of this indictment and it’s an indictment that names Assange but describes the media. You know, that’s the problem that the indictment is prosecutorial indictment, but what’s being prosecuted is not just Assange, it’s the press.

JS: Jameel Jaffer, thanks for all the work that you have done and continue to do and thanks for being with us.

JJ: Thank you.

JS: Jameel Jaffer is the Director of Knight First Amendment Institute at Columbia University. He’s also the former Deputy Legal Director at the ACLU. You can find him on Twitter at Jameel Jaffer

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