When Julian Assange was finally arrested by the UK after the Ecuadorian embassy decided it was tired of housing him, the United States requested extradition and filed charges against him – and some of those charges upset the journalistic community. It’s worth understanding why, so here’s Jack Goldsmith, writing on Lawfare, from a couple of weeks back:
I have written a lot on how hard it is to distinguish WikiLeaks from the New York Times when it comes to procuring and publishing classified information. One implication of the comparison is that any successful prosecution of WikiLeaks founder Julian Assange would have adverse implications for mainstream U.S. news publications efforts to solicit, receive and publish classified information. The May 23 indictment of Assange makes clear that these concerns are real. As Susan Hennessey said, “[I]t will be very difficult to craft an Espionage Act case against him that won’t adversely impact true journalists.” I don’t think this is an accident. I think the government’s indictment has the U.S. news media squarely in its sights.
The first sentence of the indictment reads:To obtain information to release on the WikiLeaks website, ASSANGE encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.
This is exactly what national security reporters and their news publications often ask government officials or contractors to do. Anytime a reporter asks to receive information knowing it is classified, that person encourages sources to circumvent legal safeguards on information. The news organizations’ encouragement is underscored by the mechanisms they provide for sources to convey information securely and anonymously. (The New York Times’s menu includes SecureDrop, 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.) 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.”
The quoted indictment, if you’re not a journalist, sounds rather reasonable, doesn’t it? But Goldsmith disagrees:
The government alleges that “ASSANGE designed WikiLeaks to focus on information, restricted from public disclosure by law, precisely because of the value of that information” and adds that Assange “predicated his and WikiLeaks’s success in part upon encouraging sources with access to such information to violate legal obligations and provide that information for WikiLeaks to disclose.” This is pretty much a description of what the New York Times and its national security reporters do. The indictment makes a big deal out of the fact that WikiLeaks posted a “Most Wanted Leaks” list. U.S. journalists don’t do exactly that. But they sometimes have a general list of asks, they often have specific requests and SecureDrop constitutes an open-ended request. The indictment also makes a big deal out of Assange’s interactions and encouragements with Chelsea Manning. These interactions, again, are not unlike the ones that must occur all the time between national security reporters and their sources. The government makes much of the fact that WikiLeaks describes itself as “intelligence agency of the people,” but that is how many people and institutions in the U.S. media see their role.
This is the sort of thing that fascinates me – surprising glimpses into the lives of other people. So it suggests that Assange, regardless of his alleged sexual offenses, is (or was) simply upgrading a service offered by the traditional media for the digital age. Is that so bad?
Goldsmith is not alone in worrying about this, as Margaret Sullivan of WaPo makes clear:
All [the stories on the Pentagon Papers, the NSA’s global surveillance programs, and the monitoring of calls and emails of Americans without court-approved warrants] won Pulitzer Prizes, and all informed citizens about activities their secrecy-obsessed government didn’t want them to know.
That kind of reporting — perhaps the most important journalism there is — may have become an endangered species Thursday with a new indictment of WikiLeaks co-founder Julian Assange under the Espionage Act.
For good reason, press-rights advocates are far more alarmed now than they were last month when Assange was initially indicted.
“This is unlike anything we’ve seen before, and it crosses a bright red line for journalists,” said James Risen, a longtime national security reporter for the Times and now director of the First Look Media’s Press Defense Fund. While a Times reporter, Risen (co-author of the warrantless wiretapping story) struggled for years to avoid testifying about his confidential source during the leak investigation of Jeffrey Sterling, a former CIA officer.
Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press, has similar concerns.
So, briefly speaking, the traditional risks have lain with those willing to break faith with their government, not so much with their publishers, but with caveats concerning reporters and their sources, and subsequent legal harassment by the government. This brings us back to Assange: is he a publisher?
Let’s establish some attributes of a publisher: an entity which searches for, solicits, and makes public, or semi-public in the case of subscription services, information, aka “news”. As part of the survival skills of such an entity, “fact-checking” was, at one time, an important attribute of being a publisher, as was a reputation for presenting all relevant information in a neutral manner.
By these criteria, Assange is doubtful as a member of the traditional publishers guild, isn’t he? He may cry that his specialty is “classified” information, but primarily because that’s the constraint of his organization, WikiLeaks, it makes it very difficult to judge whether he is a reputable publisher, or a fly by the night biased operation, unworthy of the name. For those of us who pay attention to reporting on Assange, we know he is passionately anti-Clinton, and communicated with the Trump Campaign concerning Clinton. Is this neutral?
This creates significant doubt in my mind that he’s a traditional publisher.
But let’s return to the attributes of a publisher and talk about one more such attribute. Let’s do so by citing some other notable publishers of “classified” information: The Washington Post, The New York Times, The Los Angeles Times. What do they all have in common?
They’re all nationally based.
What is WikiLeaks? American, Russian, Australian (Assange may be from Australia), hell, Sicilian? Does it even matter? WikiLeaks is Internet based, and that means it’s not clear where the allegiance of those in control of it may lie. The traditional sources I’ve cited above are American and primarily report on American affairs, and as much as one may disagree with their editorial opinions, only the paranoid will indulge in the injustice of thinking they would betray their country by publishing information which they know to be false, contaminated, or misrepresented. That would destroy their reputations, and soon after their enterprises.
It’s far harder to make that assertion about WikiLeaks. Not much of a history, a bias in the publisher, and who knows if the information published is complete – or biased?
OK, all that said, I’m not disputing anything Sullivan and Goldsmith have said; I’ve really just used them as a jumping off point to think about WikiLeaks and how it’s easy to believe it’s little more than a mouthpiece for Assange. That the indictment is an overreach is worrisome, but hopefully a judge will reject it as inappropriate.
It’s certainly worth keeping an eye on it. And perhaps asking whether Assange deserves the title of ‘publisher.’
