Almost 20 years after Julian Assange founded WikiLeaks, his legal saga appears to be over with a guilty plea to a single charge of disseminating classified documents. His sentence is, essentially, time served.
The outcome is unlikely to satisfy either national security hawks — who wanted Assange behind bars in the US for the substantial damage he did to the country’s interests — or First Amendment absolutists who think freedom of the press should extend to WikiLeaks.
The truth is that Assange’s case was always in the gray area between espionage and protected speech. Its outcome has not made that gray area any more distinct.
Illustration: Mountain People
Assange’s behavior sits smack in the middle of two areas of long-established law. On the one hand, if you are a government employee or contractor with authorized access to classified material and you leak it, you may be criminally prosecuted to the fullest extent of the Espionage Act.
That is what happened to soldier Chelsea Manning, who gave WikiLeaks some 750,000 documents and was imprisoned from 2010 to 2017 (when outgoing US president Barack Obama commuted her sentence). It is what would have happened to Edward Snowden, the National Security Agency contractor who leaked classified information on government surveillance to several reporters, had he not fled to Russia in 2013. Even Daniel Ellsberg, who famously leaked the classified Pentagon Papers to the New York Times in 1971, faced charges under the Espionage Act. They were dismissed only because officials of then-US president Richard Nixon’s administration engaged in unlawful misconduct against him.
However, on the other hand, if you are a news organization that receives classified information and makes it public, the First Amendment generally protects you — although that protection is not unlimited.
In the Supreme Court’s Pentagon Papers ruling, New York Times Company v. United States, the justices allowed publication of the documents — which detailed the history of US involvement in Vietnam — over the government’s objections. Despite the 6-3 result, there was no single majority opinion. Two justices who voted with the majority, Byron White and Potter Stewart, noted that it was conceivable that there could be criminal charges against a newspaper for publishing information specifically prohibited by statute, such as troop movements, or even material that simply violated national defense.
So in theory, a newspaper could be punished criminally for publishing some kinds of classified material. But in practice, newspapers are never prosecuted under the Espionage Act. That is because of both justice department policy and the care newspapers have traditionally taken not to publish material that would directly endanger the lives of soldiers or spies. (The newspapers that published materials released by WikiLeaks tried to cull the names of vulnerable people from the documents.)
Then comes the gray area, for which Assange is the exemplar: People who cooperate with leakers in some way to facilitate the public release of classified information. The criminal charges against Assange contend that he conspired with Manning by agreeing to help her break codes that would enable her to log onto a classified computer system as someone else. That would have gone beyond — well beyond — what ethics would have allowed a journalist to do.
At the same time, journalists might well hold a leaker’s hand, metaphorically speaking, in getting the leaks out. Neil Sheehan, the New York Times reporter who got the Pentagon Papers from Ellsberg, apparently went further. In an account published only after his death, Sheehan claimed to have taken the documents from Ellsberg without his knowledge to copy them when Ellsberg was on the fence.
Without necessarily sympathizing with Assange himself, free-speech advocates worried, and still worry, that prosecuting him would chill First Amendment-protected journalism. This concern was not unreasonable, given the obscurity of the gray area. Some would go further, treating WikiLeaks itself as a journalistic entity and Assange as a pioneer in creating an online clearinghouse for leaked material.
Assange’s detractors decried and will continue to decry his systematic and targeted encouragement of unlawful leaking. They also note the allegation, made by special counsel Robert Mueller, that Assange cooperated with Russian intelligence in leaking Hillary Rodham Clinton’s e-mails and coordinated the timing of their release with Donald Trump campaign operative Roger Stone during the 2016 presidential election. (In 2019, Stone was convicted of felonies related to obstructing an investigation but was ultimately pardoned by President Trump.) Seen from this perspective, Assange and WikiLeaks are actors in international affairs, not journalistic observers.
Assange has spent most of the last five years in a British jail, and before that he spent seven more in the Ecuadoran embassy in London. Unlike Snowden, who remains at large in Russia, Assange has therefore served some time in confinement and shown the reach of US law enforcement. That is enough to make free-speech advocates worried about the future, but not enough to satisfy those concerned about protecting long-term national security. The affair is thus ending in the same uncertainty with which it began.
Those operating in the gray area will have to take note and take care.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.” This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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