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Don’t Charge WikiLeaks

  • April 22, 2017
  • Clayton Rice, Q.C.

On April 20, 2017, CNN reported that US authorities “have prepared charges” to seek the arrest of WikiLeaks founder Julian Assange. The Department of Justice investigation dates back to 2010 when WikiLeaks posted files stolen by former US Army intelligence analyst Chelsea Manning and the belief in some quarters that WikiLeaks helped Edward Snowden, a former National Security Agency analyst, disclose a cache of classified documents in 2013. Then, last month, WikiLeaks released a trove of CIA documents that described sophisticated software to break into electronic devices. The disclosure was reported to have prompted CIA officials to put pressure on the Justice Department to charge Mr Assange.

It is not clear, however, that charges have been prepared. In an article titled Justice Dept. debating charges against WikiLeaks members in revelations of diplomatic, CIA materials published in The Washington Post edition of April 20, 2017, Matt Zapotosky and Ellen Nakashima reported that prosecutors have been, “drafting a memo that contemplates charges against members of the WikiLeaks organization, possibly including conspiracy, theft of government property or violating the Espionage Act…The memo, though, is not complete, and any charges against members of WikiLeaks, including founder Julian Assange, would need approval from the highest levels of the Justice Department.” But, what is clear, is that a First Amendment storm erupted in the press and on social media that is focused by the positions taken by Mr Assange and CIA Director Mike Pompeo.

Mr Assange compares WikiLeaks to a news media organization that uses documents provided by whistleblowers to expose the actions of government and corporations. He said this: “Quite simply, our motive is identical to that claimed by the New York Times and The Post – to publish newsworthy content. Consistent with the U.S. Constitution, we publish material that we can confirm to be true irrespective of whether sources came by that truth legally or have the right to release it to the media. And we strive to mitigate legitimate concerns, for example by using redaction to protect the identities of at-risk intelligence agents.” (See: Op-Ed. Julian Assange: WikiLeaks has the same mission as The Post and the Times. The Washington Post. April 11, 2017)

Three days later, in a speech at the Center for Strategic and International Studies in Washington, D.C., Mr Pompeo went further than other government officials when he said that the role of WikiLeaks went beyond the First Amendment when it “directed Chelsea Manning to intercept specific secret information, and it overwhelmingly focuses on the United States. It’s time to call out WikiLeaks for what it really is. A non-state hostile intelligence service often abetted by state actors like Russia.” (See: Eli Watkins. WikiLeaks slams CIA director for trying to ‘stifle speech’. CNN. April 14, 2017)

According to Ben Wizner, director of the Speech, Privacy and Technology Project at the American Civil Liberties Union, a publisher has never been prosecuted for presenting truthful information to the public. “Any prosecution of WikiLeaks for publishing government secrets,” he said, “would set a dangerous precedent that the Trump administration would surely use to target other news organizations.” (See: Adam Goldman. Justice Department Weighs Charges Against Julian Assange. The New York Times. April 20, 2017)

And journalist, Glenn Greenwald, described Mr Pompeo’s speech as an explicit threat to target free speech and freedom of the press: “Decreeing (with no evidence),” Mr Greenwald wrote, “that WikiLeaks is ‘a non-state hostile intelligence service often abetted by state actors like Russia’…Pompeo proclaimed that ‘we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us’.” Mr Pompeo went on to say that giving WikiLeaks “the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.” (See: Glenn Greenwald. Trump’s CIA Director Pompeo, Targeting WikiLeaks, Explicitly Threatens Speech and Press Freedoms. The Intercept. April 14, 2017)

The First Amendment tension was also described by Andy Greenberg in an article titled The US Charging Julian Assange Could Put Press Freedom On Trial published by WIRED on April 20, 2017. Mr Greenberg began this way:

“Julian Assange has made himself a difficult figure to love. The organization he created, WikiLeaks, has spilled secrets that infuriate the right and, more recently, the left side of the political aisle. He burns all bridges, alienates friends, and sees enemies everywhere. Mounting evidence suggests he even allowed his organization to serve as a leak-laundering service for Kremlin hackers seeking to swing the US election.

But if the US Department of Justice prosecutes Assange, as it reportedly may soon, he could become something else: the first journalist in modern history to be criminally charged for publishing classified information. WikiLeaks may not look like a traditional journalism outlet, but it shares the same ends – publishing true information from its sources. And that means legal action against Assange could threaten the freedom of the press as a whole.

‘Any prosecution would be incredibly dangerous for the First Amendment and pretty much every reporter in the United States,’ says Trevor Timm, executive director of the Freedom of the Press Foundation. ‘You can hate WikiLeaks all you want, but if they’re prosecuted, that precedent can be turned around and used on all the reporters you do like’.”

And that brings me to the point here. The First Amendment resides in the heart of the Constiutiton and a Republic that profoundly believes in it. If WikiLeaks published true information from its sources, irrespective of how the information was obtained by the sources, it should receive First Amendment protection. In New York Times Co v Sullivan, 376 US 254 (1964) Justice William J. Brennan, writing for a unanimous Supreme Court of the United States, put it this way, at pp. 269-70:

“The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v United States, 354 US 476, 484. ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ Stromberg v California, 283 US 359, 369. ‘[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions,’ Bridges v California, 314 US 252, 270, and this opportunity is to be afforded for ‘vigorous advocacy’ no less than ‘abstract discussion.’ NAACP v Button, 371 US 415, 429. The First Amendment, said Judge Learned Hand, ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all.’ United States v Associated Press, 52 F.Supp 362, 372 (1943).”

Six years ago Professor Jack Goldsmith of Harvard Law School discussed the same questions in an article titled Why the U.S. shouldn’t try Julian Assange published in The Washington Post edition of February 11, 2011. Professor Goldsmith also argued that it is difficult to distinguish WikiLeaks from traditional news outlets. National security reporters for The Washington Post solicit and receive classified information and The Post publishes it regularly. The Obama administration did not charge Mr Assange with conspiring with Ms Manning to steal and share information, distinct from publishing classified information, because there is no evidence that he induced her to leak. Charging Mr Assange would cast a chill over the American press in its national security reporting.

Whether WikiLeaks should be prosecuted has one answer – Don’t do it!  That is what The Guardian said in its editorial yesterday: “Mr Assange is in many ways an unattractive champion of liberty. But he is right to claim that at least sometimes his organization serves a journalistic function and should be protected in the US by the first amendment. Some of the documents that WikiLeaks has published, and that other media organizations, including the Guardian, have also used, were obtained by means that may have been illegal. But there is a longstanding principle that this does not in itself make their publication illegal. If we, as journalists, had to rely solely on public-spirited and scrupulously honest sources, some very important stories would be missed. Key stories that hold the powerful to account in a democracy would no longer be heard. The defence of a free press is that it doesn’t necessarily make its participants virtuous, but it harnesses some of their vices to the public good.” (See: Editorial. The Guardian view on prosecuting WikiLeaks: don’t do it. April 21, 2017)

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