Trump administration's Assange indictment is a referendum on the Constitution

It’s easy to blame Trump's Justice Department for taking the first step down such a slippery free speech slide. But part of the blame also lies with Congress.
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WikiLeaks founder Julian Assange is taken from court, where he appeared on charges of jumping British bail seven years ago, in London on May 1, 2019.Matt Dunham / AP file
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By Steve Vladeck, professor at the University of Texas School of Law

The 18-count superseding indictment unsealed against Julian Assange by the Justice Department on Thursday tees up a major test case for the relationship between press freedom and the Constitution. Not because Julian Assange is a journalist; he isn’t. And not because the conduct alleged in the indictment, if proven, should be protected by the Constitution; it shouldn’t be. Rather, the reason why the Assange case is so momentous is because it is based at least in part on a theory of criminal liability under the Espionage Act of 1917 that the government has never successfully prosecuted before — and because that theory crosses a constitutional line with regard to the press that the government has previously respected.

That theory crosses a constitutional line with regard to the press that the government has previously respected.

Enacted in the midst of World War I (and, importantly, before virtually all of the Supreme Court’s modern First Amendment jurisprudence), the Espionage Act controversially made it a crime not only to spy on this country and steal national security secrets, but even simply to receive classified national security information without authorization. The law does not require that an offender intend to harm the United States; it requires only that the defendant know or have “reason to believe” that the wrongfully obtained or disclosed “national defense information” is going to be used to hurt the United States, or help a foreign nation.

So when The New York Times or Washington Post publish scoops based upon leaked classified information, technically, they are violating the plain language of the Espionage Act — even if the scoop is revealing an unlawful government program or some other matter of unquestionable public concern. Those journalists responsible for stories revealing the government’s torture of enemy combatants; the CIA’s operation of secret “black sites”; the NSA’s bulk collection of Americans’ phone records; and any number of other critical journalism investigations that were aided by national security leaks over the past 15 years are all punishable under the plain terms of the statute.

Worse still, so are their readers — who are in receipt of the unlawfully leaked classified information simply by downloading the article onto their laptop or bringing the physical newspaper into their home. The text of the Espionage Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that by that point is already in the public domain. So long as someone knows or has reason to believe that their conduct is unlawful, they are violating the act’s plain language regardless of their specific intent. (This is made even more ridiculous by the fact that, by the time a reader of the Times has brought a newspaper into their home, the proverbial cat is long since out of the bag.)

None of this is new. Even when the Supreme Court in the “Pentagon Papers” case famously rejected the government’s effort to prevent the Times and Post from publishing the documents, several of the justices in the majority suggested that those entities could potentially be prosecuted after publishing under the 1917 law. Then, as now, the question was not whether the Espionage Act allows for the prosecution of the press for gathering and disseminating classified national security information; it was whether the First Amendment in any way bars it.

In the 102 years that the act has been on the books, the government had never prosecuted a journalist for retaining or publishing classified national security information.

The reason why this remains an open question today is because the government has never forced the issue. In the 102 years that the act has been on the books, the government had never prosecuted a journalist for retaining or publishing classified national security information. Indeed, it had only tried to prosecute a third party under the Espionage Act once — and that case collapsed, at least in part due to First Amendment concerns.

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Not anymore. Although the new indictment against Assange alleges a series of actions that go well beyond what anyone would define as responsible journalism, those are just factual allegations, not legal theories. 17 of the 18 counts in the indictment allege violations of the Espionage Act — crossing a constitutional Rubicon that the government had never previously sought to ford. Not only do the charges include counts based upon Assange’s receipt and retention of classified information, but they also include a series of counts based upon Assange’s facilitation of leaks by Chelsea Manning — where the line between what Assange did and what the most responsible journalists do when cultivating sources is not as bright as we might like it to be.

If Assange is successfully extradited (which is still likely, but has become more complicated by the new indictment), his case would almost certainly rise and fall on the constitutional question — whether his conduct was in any way protected by the First Amendment. Given who Assange is, and given the allegations against him, it’s easy to imagine that courts would say “no.” But as the old adage goes, “hard cases make bad law.” In the process, Assange’s case could set a dangerous precedent with regard to the kinds of activities that the First Amendment does not protect — a precedent that could chill even the most careful, skilled professional journalists from pursuing stories involving national security secrets. That’s why it doesn’t matter whether Julian Assange is a journalist; what matters is that his case could set a legal precedent that applies to folks with far cleaner hands.

It’s easy to blame the Justice Department in general, and the Trump administration, in particular, for taking the first step down such a slippery slide. But part of the blame here also lies with Congress, which has, for decades, been warned about a potential future case exactly like this — and has nevertheless chosen to leave the law unchanged. This history of congressional quiescence led a pair of Columbia law professors, writing in 1973 (shortly after the Pentagon Papers case), to conclude that “we have lived since World War I in a state of benign indeterminacy about the rules of law governing defense secrets.” That indeterminacy has only become more pronounced over the ensuing four and a half decades. And as of yesterday, it is no longer benign.