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There is a lot to digest in the superseding indictment of Julian Assange, which charges the Wikileaks founder with 17 counts under the 1917 Espionage Act in connection with the Chelsea Manning disclosures. But three of those counts represent a profoundly troubling legal theory, one rarely contemplated and never successfully deployed. Under those counts, the Justice Department now seeks to punish the pure act of publication of newsworthy government secrets under the nation’s spying laws.
The 17 Espionage Act charges in the indictment can be grouped in three categories. The first category includes just count one, a conspiracy charge under § 793(g) of the Espionage Act.
The second category includes counts two through 14. Those look similar to the only other case involving a non-governmental third party charged under the Espionage Act: the unsuccessful prosecution of two employees at the American-Israel Public Affairs Committee (AIPAC) for allegedly conspiring with a Pentagon analyst to receive and disseminate information about Iran. In that case, the government charged one AIPAC employee, Steven Rosen, with aiding and abetting the analyst’s disclosures under both the Espionage Act and 18 U.S.C § 2, the federal statute that permits someone who induces or causes another to commit a crime to be punished just like the offender. The Assange charges do the same but go further than the § 2 claim in the Rosen case. They allege that Assange “aided, abetted, counseled, induced, procured and willfully caused” Manning to leak the documents in violation of the Espionage Act (emphasis added).
But it’s the third category—counts 15 through 17—that gets at pure publication. These counts focus only on Assange’s having posted the documents on the internet and do not depend on some other action, such as encouraging the leak or receiving the information. Of course, those are also activities similar to newsgathering, which should also receive First Amendment protection . But counts 15 through 17 are totally divorced from any concerted action between Assange and Manning. The theory behind them would permit prosecution even if Assange had received the material anonymously in the mail.
Those counts allege that Assange directly violated the Espionage Act when he “communicated” significant activity, SIGACT, reports from the Afghanistan and Iraq wars, and State Department cables, “by publishing [the documents] on the internet.” In other words, counts 15 through 17 allege a direct violation of 18 U.S.C. § 793(e) based purely on publication.
The superseding indictment emphasizes that the published material included the “names of individuals, who risked their safety and freedom by providing information to the United States and our allies.” Practically and ethically, this is an important distinction between Assange and news outlets that wrote stories based on the leaked SIGACT reports and cables. The New York Times, for instance, removed the names of informants and, at the request of the government, asked Assange to do the same. Assange’s decision to include the names should not be minimized.
Legally, however, there is nothing in the text of the Espionage Act that turns on the publication of the names of informants. Even if news organizations protect the identity of informants when publishing classified information, prosecutors can claim some other serious national security harm to justify an Espionage Act case. As a legal matter, the publication of informants’ names won’t serve to distinguish this case from a future Espionage Act prosecution based on pure publication.
Additionally, without discounting the potential for harm to U.S. informants, it is noteworthy that the documents published here were classified up to the level of “secret,” not “top secret,” and did not involve some of the most sensitive government programs (such as signals intelligence or specific war plans). Not that it should, but the government has never brought an Espionage Act claim based just on the publication of signals intelligence information, which is considered much more sensitive than State Department cable traffic, despite opportunities to do so.
That the government forbore from acting against the press in recent cases involving leaks of signals intelligence material, but is bringing a case to criminalize the disclosures here, is striking. Again, the point here is not that the government should bring cases against news organizations who report on the NSA, quite the opposite. Rather, one would expect that, at the very least, the Justice Department would reserve an Espionage Act case based solely on publication for the gravest risks to national security. It does not appear to have done so here.
Instances where the government has even contemplated a pure publication theory are exceedingly rare. Even the Pentagon Papers case was an attempt to stop but not punish publication (though Washington Post reporter Ben Bagdikian and possibly others were investigated for violations of the Espionage Act). In each case we know of where the government considered action to punish the publication of government secrets, the prosecution ultimately did not proceed. For instance, the Franklin Roosevelt administration’s efforts to indict a war reporter and the Chicago Tribune for a story that officials feared could alert the Japanese to the compromise of their naval codes fell apart after the Navy refused to permit cryptanalysts to testify before the grand jury. Two others, involving submarine-based surveillance programs against the Soviets, failed to proceed in part because of First Amendment concerns.
The trend even among this handful of cases is clear. The government has come up to the line of prosecuting the press for publishing government secrets, but invariably something walks it back from the brink. Counts 15 through 17 of the superseding Assange indictment represent the first time a grand jury has issued an indictment based on a pure publication theory. This goes beyond just a threat to sources or newsgathering; it’s a direct threat to news reporting.
Many may criticize Assange, but First Amendment protections for the publication of newsworthy information are as essential as they have ever been. An ongoing case from Northern Ireland starkly illustrates the importance of those safeguards.
The Reporters Committee, where I work, intervened with twenty news organizations in a Belfast court to support a challenge to police raids targeting two filmmakers of the American-Irish documentary “No Stone Unturned.” Directed by Oscar-winner Alex Gibney, the film explored the investigation into an atrocity from the Troubles, the Loughinisland massacre. In 1994, loyalist paramilitary members opened fire in a pub in the small Northern Irish town of Loughinisland. Because the Republic of Ireland was playing Italy in the World Cup, the gunmen believed the crowd would be mostly Catholic. Six people were killed and five were injured. No one has ever been charged.
The police have been dogged by accusations that they colluded with the paramilitaries, and that authorities sabotaged the investigation into the massacre to protect paramilitary informants. In 2011, a police ombudsperson report named the likely suspects in the case. That report was leaked anonymously to one of the filmmakers, and the film names the suspects. In 2018, a year after the film debuted at the New York Film Festival, as many as a hundred officers from British and Northern Irish police forces raided both filmmakers’ homes, seizing their work product and newsgathering equipment. Both were told they may have violated the Official Secrets Act, which has been used against the press repeatedly in the United Kingdom. The Belfast court will hear arguments in the case next week.
The “No Stone Unturned” case starkly shows the need for First Amendment protections for the publication of government information in the public interest. The British Official Secrets Act permits the direct investigation and prosecution of journalists for publishing official secrets, something that has been historically anathema under the First Amendment. These three counts in the superseding Assange indictment threaten to bring the U.S. closer to an Official Secrets Act of its own.