A Publisher of Truthful Information

Ryan Grim writes:

Rep. Rashida Tlaib, D-Mich., is circulating a letter among her House colleagues that calls on the Department of Justice to drop charges against Julian Assange and end its effort to extradite him from his detention in Belmarsh prison in the United Kingdom.

The letter, a copy of which was obtained by The Intercept, is still in the signature-gathering phase and has yet to be sent to Attorney General Merrick Garland.

The Justice Department has charged Assange, the publisher of WikiLeaks, for publishing classified information. The Obama administration had previously decided not to prosecute Assange, concerned with what was dubbed internally as the “New York Times problem.” The Times had partnered with Assange when it came to publishing classified information and itself routinely publishes classified information. Publishing classified information is a violation of the Espionage Act, though it has never been challenged in the Supreme Court, and constitutional experts broadly consider that element of the law to be unconstitutional.

“The Espionage Act, as it’s written, has always been applicable to such a broad range of discussion of important matters, many of which have been wrongly kept secret for a long time, that it should be regarded as unconstitutional,” explained Daniel Ellsberg, the famed civil liberties advocate who leaked the Pentagon Papers.

The Obama administration could not find a way to charge Assange without also implicating standard journalistic practices. The Trump administration, unburdened by such concerns around press freedom, pushed ahead with the indictment and extradition request. The Biden administration, driven by the zealous prosecutor Gordon Kromberg, has aggressively pursued Trump’s prosecution. Assange won a reprieve from extradition in a lower British court but lost at the High Court. He is appealing there as well as to the European Court of Human Rights. Assange’s brother, Gabriel Shipton, who has been campaigning globally for his release, said that Assange’s mental and physical health have deteriorated in the face of the conditions he faces at Belmarsh.

Tlaib, in working to build support, urged her colleagues to put their differences with Assange the individual aside and defend the principle of the free press, enshrined in the Constitution. “I know many of us have very strong feelings about Mr. Assange, but what we think of him and his actions is really besides the point here,” she wrote to her colleagues in early March. “The fact of the matter is that the [way] in which Mr. Assange is being prosecuted under the notoriously undemocratic Espionage Act seriously undermines freedom of the press and the First Amendment.”

“In the future, the New York Times or Washington Post could be prosecuted when they publish important stories based on classified information.”

Tlaib noted that the Times, The Guardian, El País, Le Monde, and Der Spiegel had put out a joint statement condemning the charges, and alluded to the same problem that gave the Obama administration pause.

“The prosecution of Mr. Assange, if successful, not only sets a legal precedent whereby journalists or publishers can be prosecuted, but a political one as well,” she wrote. “In the future, the New York Times or Washington Post could be prosecuted when they publish important stories based on classified information. Or, just as dangerous, they may refrain from publishing such stories for fear of prosecution.”

So far, the letter has collected signatures from Democratic Reps. Jamaal Bowman, Ilhan Omar, and Cori Bush. Rep. Ro Khanna said he had yet to see the letter but added that he has previously said Assange should not be prosecuted because the charges are over-broad and a threat to press freedom. Rep. Pramila Jayapal is not listed as a signee but told a Seattle audience recently she believes the charges should be dropped. A spokesperson for Rep. Alexandria Ocasio-Cortez said that she intends to sign before the letter closes.

Chip Gibbons, policy director for Defending Rights & Dissent, said that the relative silence from Congress on the Assange prosecution has undermined U.S. claims to be defending democracy abroad. “In spite of the rhetoric about opposing authoritarianism and defending democracy and press freedom, we really haven’t seen a comparable outcry from Congress — until now,” said Gibbons, whose organization has launched a petition calling on the Justice Department to drop charges. “Rep. Tlaib’s letter isn’t just a breath of fresh air, it’s extremely important for members of Congress to be raising their voices on this, especially those from the same party of the current administration, at this critical juncture in a case that will determine the future of press freedom in the United States.”

A significant number of Democrats continue to hold a hostile view of Assange, accusing him of publishing material that was purloined by Russian agents from the inbox of Hillary Clinton campaign chair John Podesta. The indictment, however, relates to his publication of government secrets leaked by Chelsea Manning more than a decade ago. “In July 2010, WikiLeaks published approximately 75,000 significant activity reports related to the war in Afghanistan, classified up to the SECRET level, illegally provided to WikiLeaks by Manning,” the indictment reads. “In November 2010, WikiLeaks started publishing redacted versions of U.S. State Department cables, classified up to the SECRET level, illegally provided to WikiLeaks by Manning.”

The U.S. government has made the general claim that Assange’s publication of classified information put sources and allies of the U.S. in harm’s way, though the government has been unable to provide any example of that. Meanwhile, the U.S. government itself has left thousands of Afghan civilians, who collaborated with the U.S., to their fates after the withdrawal from Afghanistan, raising questions about the sincerity of their lamentations over the security of those who work with the U.S.

The word “publish” appears more than two dozen times in the superseding indictment of Assange, in which he is accused of “having unauthorized possession of significant activity reports, classified up to the SECRET level [and] publishing them and causing them to be published on the Internet.”

The full letter is below.

Dear Colleague:

I’d like to invite you to join me in writing the Dept. of Justice to call on them to drop the Trump-era charges against Australian publisher Julian Assange.

I know many of us have very strong feelings about Mr. Assange, but what we think of him and his actions is really besides the point here. The fact of the matter is that the in which Mr. Assange is being prosecuted under the notoriously undemocratic Espionage Act seriously undermines freedom of the press and the First Amendment.

Defendants charged under the Espionage Act are effectively incapable of defending themselves and often are not allowed access to all the evidence being brought against them, or even to testify to the motivation behind their actions. The information that Mr. Assange worked with major media outlets like the New York Times and the The Guardian to publish primarily came from the documents leaked by whistleblower Chelsea Manning. These documents exposed a number of extremely serious government abuses including torture, war crimes, and illegal mass surveillance.

Mr. Assange’s prosecution marks the first time in US history that the Espionage Act has been used to indict a publisher of truthful information. The prosecution of Mr. Assange, if successful, not only sets a legal precedent whereby journalists or publishers can be prosecuted, but a political one as well. In the future, the New York Times or Washington Post could be prosecuted when they publish important stories based on classified information. Or, just as dangerous, they may refrain from publishing such stories for fear of prosecution.

The New York Times, The Guardian, El Pais, Le Monde, and Der Spiegel have taken the extraordinary step of publishing a joint statement in opposition to the indictment, warning that it “sets a dangerous precedent, and threatens to undermine America’s First Amendment and the freedom of the press.” They are joined in their opposition to Mr. Assange’s prosecution by groups like the ACLU, Human Rights Watch, Amnesty International, Reporters Without Borders and the Committee to Protect Journalists. Numerous foreign leaders have also expressed their concern and opposition, including Australian PM Albanese, Mexican President AMLO, Brazilian President Lula da Silva, and parliamentarians from numerous countries including the UK, Germany, Brazil, and Australia.

If you have any questions or would like to sign on to this letter, please contact Rep. Tlaib’s Policy Advisor… Thank you for your partnership in defending the freedom of the press and the First Amendment.

Sincerely,

Rashida Tlaib

Member of Congress

Dear Attorney General Merrick Garland,

We write you today to call on you to uphold the First Amendment’s protections for the freedom of the press by dropping the criminal charges against Australian publisher Julian Assange and withdrawing the American extradition request currently pending with the British government.

Press freedom, civil liberty, and human rights groups have been emphatic that the charges against Mr. Assange pose a grave and unprecedented threat to everyday, constitutionally protected journalistic activity, and that a conviction would represent a landmark setback for the First Amendment. Major media outlets are in agreement:

The New York Times, The Guardian, El Pais, Le Monde, and Der Spiegel have taken the extraordinary step of publishing a joint statement in opposition to the indictment, warning that it “sets a dangerous precedent, and threatens to undermine America’s First Amendment and the freedom of the press.” 

The ACLU, Amnesty International, Reporters Without Borders, the Committee to Protect Journalists, Defending Rights and Dissent, and Human Rights Watch, among others, have written to you three times to express these concerns. In one such letter they wrote:

“The indictment of Mr. Assange threatens press freedom because much of the conduct described in the indictment is conduct that journalists engage in routinely—and that they must engage in in order to do the work the public needs them to do. Journalists at major news publications regularly speak with sources, ask for clarification or more documentation, and receive and publish documents the government considers secret. In our view, such a precedent in this case could effectively criminalize these common journalistic practices.”

The prosecution of Julian Assange for carrying out journalistic activities greatly diminishes America’s credibility as a defender of these values, undermining the United States’ moral standing on the world stage, and effectively granting cover to authoritarian governments who can (and do) point to Assange’s prosecution to reject evidence-based criticisms of their human rights records and as a precedent that justifies the criminalization of reporting on their activities. Leaders of democracies, major international bodies, and parliamentarians around the globe stand opposed to the prosecution of Assange. Former United Nations Special Rapporteur on Torture Nils Melzer and the Council of Europe’s Commissioner for Human Rights Dunja Mijatovic have both opposed the extradition. Australian Prime Minister Anthony Albanese has called on the U.S. government to end its pursuit of Assange. Leaders of nearly every major Latin American nation, including Mexican President Andrés Manuel López Obrador, Brazilian President Luiz Inácio Lula da Silva, and Argentinian President Alberto Fernández have called for the charges to be dropped. Parliamentarians from around the world, including the United Kingdom, Germany, and Australia, have all called for Assange not to be extradited to the U.S. 

This global outcry against the U.S. government’s prosecution of Mr. Assange has highlighted conflicts between America’s stated values of press freedom and its pursuit of Mr. Assange. The Guardian wrote “The US has this week proclaimed itself the beacon of democracy in an increasingly authoritarian world. If Mr. Biden is serious about protecting the ability of the media to hold governments accountable, he should begin by dropping the charges brought against Mr. Assange.” Similarly, the Sydney Morning Herald editorial board stated, “At a time when US President Joe Biden has just held a summit for democracy, it seems contradictory to go to such lengths to win a case that, if it succeeds, will limit freedom of speech.”

As Attorney General, you have rightly championed freedom of the press and the rule of law in the United States and around the world. Just this past October the Justice Department under your leadership made changes to news media policy guidelines that generally prevent federal prosecutors from using subpoenas or other investigative tools against journalists who possess and publish classified information used in news gathering. We are grateful for these pro-press freedom revisions, and feel strongly that dropping the Justice Department’s indictment against Mr. Assange and halting all efforts to extradite him to the U.S. is in line with these new policies.

Julian Assange faces 17 charges under the Espionage Act and one charge for conspiracy to commit computer intrusion. The Espionage Act charges stem from Mr. Assange’s role in publishing information about the U.S. State Department, Guantanamo Bay, and wars in Iraq and Afghanistan. Much of this information was published by mainstream newspapers, such as the New York Times and Washington Post, who often worked with Mr. Assange and WikiLeaks directly in doing so. Based on the legal logic of this indictment, any of those newspapers could be prosecuted for engaging in these reporting activities. In fact, because what Mr. Assange is accused of doing is legally indistinguishable from what papers like the New York Times do, the Obama administration rightfully declined to bring these charges. The Trump Administration, which brought these charges against Assange, was notably less concerned with press freedom.

The prosecution of Mr. Assange marks the first time in U.S. history that a publisher of truthful information has been indicted under the Espionage Act. The prosecution of Mr. Assange, if successful, not only sets a legal precedent whereby journalists or publishers can be prosecuted, but a political one as well. In the future the New York Times or Washington Post could be prosecuted when they publish important stories based on classified information. Or, just as dangerous for democracy, they may refrain from publishing such stories for fear of prosecution.

Mr. Assange has been detained on remand in London for more than three years, as he awaits the outcome of extradition proceedings against him. In 2021, a U.K. District Judge ruled against extraditing Mr. Assange to the United States on the grounds that doing so would put him at undue risk of suicide. The U.K.’s High Court overturned that decision after accepting U.S. assurances regarding the prospective treatment Mr. Assange would receive in prison. Neither ruling adequately addresses the threat the charges against Mr. Assange pose to press freedom. The U.S. Department of Justice can halt these harmful proceedings at any moment by simply dropping the charges against Mr. Assange.

We appreciate your attention to this urgent issue. Every day that the prosecution of Julian Assange continues is another day that our own government needlessly undermines our own moral authority abroad and rolls back the freedom of the press under the First Amendment at home. We urge you to immediately drop these Trump-era charges against Mr. Assange and halt this dangerous prosecution.

Sincerely,

Members of Congress

CC: British Embassy; Australian Embassy