Tomorrow a delegation of Australian politicians from across the political spectrum will descend upon Washington, D.C., to attempt to persuade U.S. officials to finally drop the prosecution of Julian Assange. Assange is also expected to be a major focus of an official state visit by Australia’s Prime Minister Anthony Albanese in October.
It’s nothing short of a national embarrassment that foreign officials have to explain to our government that prosecuting a publisher for work that helped expose war crimes is a threat to the First Amendment. Yet that’s where we find ourselves, with Assange set to be extradited to face trial, possibly within weeks. He’s indicted under the Espionage Act, but the charges have nothing to do with spying — rather, he’s accused of obtaining and publishing secret documents from a source, just like investigative reporters do all the time.
As Australian Barrister Greg Barns told the Guardian, “You’ve now got China using the Assange case as a sort of moral equivalence argument. So the message [of the Australian delegation] is going to be: this is very dangerous for journalists around the world and a race to the bottom that’s going on.” We’ve similarly argued that the U.S. loses credibility in opposing Russia’s sham espionage prosecution of Wall Street Journal journalist Evan Gershkovich when it is simultaneously pursuing espionage charges against Assange.
The Australians are far from the first to warn the Biden administration of the dangers of the prosecution. Last November, five of the world’s most respected newspapers wrote to the Department of Justice to explain: “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. … If that work is criminalized, our public discourse and our democracies are made significantly weaker.” And dozens of press freedom and civil liberties groups have urged prosecutors to drop the case.
Seven members of Congress, led by Rep. Rashida Tlaib, called for the end of the prosecution earlier this year, warning it “greatly diminishes America’s credibility” as a defender of journalistic values. We commend them for doing so, but more lawmakers should’ve joined.
Even the Obama administration — no stranger to dangerous Espionage Act prosecutions of whistleblowers — recognized the risks of prosecuting Assange. Prosecutors back then reportedly restrained themselves due to the “New York Times problem” — any criminal theory they could use to charge Assange could be used by a future administration against the Times.
President Trump was, unsurprisingly, less concerned about setting adverse precedents for journalists but, so far, the Biden DOJ has shown no inclination to distance itself from the prosecution initiated by its unabashedly anti-press predecessor. Recent remarks from Secretary of State Antony Blinken appeared to double down on the administration’s stance.
Meanwhile, the repercussions of criminalizing journalism under the overbroad, archaic language of the Espionage Act — which prohibits “willfully retaining” defense documents —- have already begun to play out. The government’s failure to draw a red line against prosecuting routine newsgathering emboldens prosecutors to weaponize against journalists other overbroad statutes, like the Computer Fraud and Abuse Act and state computer crime laws.
After all, if journalists can be prosecuted for obtaining defense documents under the Espionage Act, why can’t they be investigated for “unauthorized” access to public websites under the CFAA? Or, as the Marion County Record recently learned, for accessing a government website to verify a tip? Investigative journalists have no choice but to tread cautiously for fear that, if they do their jobs a little too well, officers might come knocking.
And if it’s this bad now, imagine the climate for investigative journalism if Assange is ultimately tried and convicted.
Of course, any discussion of the Espionage Act these days must acknowledge the elephant in the room — the Espionage Act case against Trump. Trump is also the reason many Democrats are unbothered by Assange’s prosecution — Wikileaks, they argue, helped Trump win the presidency by publishing documents damaging to Hillary Clinton. Assange therefore deserves what’s coming to him, even though his indictment has nothing to do with the 2016 election.
Not only is that view shortsighted when it comes to First Amendment freedoms but its proponents are cutting off their collective nose to spite their face. If you want to see Trump convicted under the Espionage Act, why would you want the government to invite a strong constitutional challenge to the same law by pursuing legally dubious charges against Assange? If a challenge by Assange to the act’s overbreadth were to succeed before Trump is convicted, it would severely weaken prosecutors’ case against Trump. If it succeeds afterward, it’ll give endless ammunition to Trump’s defenders to question the validity of the conviction.
There is no good reason to extradite and try Assange and countless reasons not to, many of which should have long been obvious to an administration that claims to value press freedom. Hopefully, the Australian delegation will succeed where many others have failed and persuade the Biden DOJ to finally drop this un-American prosecution. After that, Congress should repeal or reform the Espionage Act so it can’t happen again.