Criminal Justice & the Rule of Law Executive Branch Intelligence

The U.S. Media Is in the Crosshairs of the New Assange Indictment

Jack Goldsmith
Friday, May 24, 2019, 1:48 PM

I have written a lot on how hard it is to distinguish WikiLeaks from the New York Times when it comes to procu

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I have written a lot on how hard it is to distinguish WikiLeaks from the New York Times when it comes to procuring and publishing classified information. One implication of the comparison is that any successful prosecution of WikiLeaks founder Julian Assange would have adverse implications for mainstream U.S. news publications efforts to solicit, receive and publish classified information. The May 23 indictment of Assange makes clear that these concerns are real. As Susan Hennessey said, “[I]t will be very difficult to craft an Espionage Act case against him that won’t adversely impact true journalists.” I don’t think this is an accident. I think the government’s indictment has the U.S. news media squarely in its sights.

The first sentence of the indictment reads:

To obtain information to release on the WikiLeaks website, ASSANGE encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.

This is exactly what national security reporters and their news publications often ask government officials or contractors to do. Anytime a reporter asks to receive information knowing it is classified, that person encourages sources to circumvent legal safeguards on information. The news organizations’ encouragement is underscored by the mechanisms they provide for sources to convey information securely and anonymously. (The New York Times’s menu includes SecureDrop, an “encrypted submission system set up by The Times [that] uses the Tor anonymity software to protect [the] identity, location and the information” of the person who sends it.) Like WikiLeaks, these reporters and organizations encourage the sources to provide the “protected information” for public dissemination. And also like WikiLeaks, they often encourage the sources to engage in a “pattern of illegally procuring and providing protected information.”

There are other similarities. The government thought it significant that the WikiLeaks website states: “WikiLeaks accepts classified, censored, or otherwise restricted material of political, diplomatic, or ethical significance” (emphasis in indictment). This sounds very much like the public interest standard that U.S. editors use to decide when and how to publish classified information. Former Washington Post Executive Editor Leonard Downie once told me, “‘Highly classified’ doesn’t mean anything to me …. The question is, is it important for the American public to know that its government is acting in its name in this particular way?” Or as the Times’s former executive editor once said, “As journalists in a robust democracy, our responsibility is to publish information of interest to the public, and that includes publishing secrets when we find them.”

The government alleges that “ASSANGE designed WikiLeaks to focus on information, restricted from public disclosure by law, precisely because of the value of that information” and adds that Assange “predicated his and WikiLeaks’s success in part upon encouraging sources with access to such information to violate legal obligations and provide that information for WikiLeaks to disclose.” This is pretty much a description of what the New York Times and its national security reporters do. The indictment makes a big deal out of the fact that WikiLeaks posted a “Most Wanted Leaks” list. U.S. journalists don’t do exactly that. But they sometimes have a general list of asks, they often have specific requests and SecureDrop constitutes an open-ended request. The indictment also makes a big deal out of Assange’s interactions and encouragements with Chelsea Manning. These interactions, again, are not unlike the ones that must occur all the time between national security reporters and their sources. The government makes much of the fact that WikiLeaks describes itself as “intelligence agency of the people,” but that is how many people and institutions in the U.S. media see their role.

There are differences between WikiLeaks and the mainstream U.S. media. Assange has somewhat different and certainly more destructive aims toward the U.S. government and its institutions than does the typical mainstream media outlet. Unlike U.S. journalists, Assange has threatened to release an “insurance file” of information without “harm minimization” if it was directly restrained from publishing. And WikiLeaks very often does a much poorer job than the U.S. media typically does in curating published information to do unnecessary harm to individuals and, perhaps, national security. Some of these differences might be legally relevant to some of the counts against Assange. But they also might not. (For a more fine-grained and more informed analysis of the implications of the indictment for First Amendment press freedoms, see this good piece by Eugene Volokh.)

Stepping back from the details, the overwhelming sense one gets from the new indictment is how similar what WikiLeaks is charged with doing under the Espionage Act is to what U.S. national security journalists do. The original indictment against Assange alleged a violation of the Computer Fraud and Abuse Act and focused on Assange’s efforts to help Manning break passwords. I didn’t share the confidence of many commentators, including many journalists, that this was, at the proper level of generality, unlike what journalists do. But in the superseding indictment announced May 23, the vast majority of the charges are brought under the Espionage Act and focus on activity that is very much like, and often precisely, what U.S. national security journalists and their news companies do.

Why did the government bring the second, much more aggressive indictment against Assange, and why were the charges against him so obviously framed to mirror what U.S. journalists do? The answer might be that the indictment is a self-conscious effort by the government to push back against the growth in the type and number of national security leaks since 9/11, and especially against the wave of unprecedented foreign intelligence information leaks by U.S. media—including revelations of U.S. person information—that have occurred during the Trump administration.

There has been a dramatic change in norms over the past few decades about what journalists will report related to national security. Mainstream U.S. media often report national security secrets now that they would not have previously published. The trend is steadily in favor of publishing more, and more types of, classified information. There are many reasons why the norms have changed (I have discussed these reasons before):

  1. Journalists perceive a special duty to make public how the endless, unprecedentedly secretive and sometimes morally ambiguous post-9/11 wars are being waged.
  2. Journalists have grown increasingly cynical about the government’s claimed need for secrecy.
  3. The secrecy bureaucracy has grown enormously—there are many more secrets than before.
  4. These secrets leak to journalists more readily than in the past because of the digitalization of classified information and because a vastly greater number of government officials with traditional incentives to leak have access to the information.
  5. The globalized growth of journalistic coverage of the U.S. intelligence community (for example, The Guardian, Der Spiegel, The Intercept) means more extensive coverage and publication of the intelligence community’s global activities.
  6. Competition from these foreign or cosmopolitan outlets makes it harder for U.S. journalists to sit on stories out of deference to U.S. national security claims.
  7. The government has, despite all of the hemming and hawing about leak crackdowns, largely accepted these changes in norms, or at least has done remarkably little about the changes.
  8. Journalists saw huge public interest benefits from the massive leaks by Manning and Edward Snowden, and from the enormous growth in more discrete leaks. They also saw that they suffered remarkably few legal consequences as a result.

I think these last two reasons are what the new Assange indictment aims in part to address. U.S. journalists publish more and more secrets, including new types of secrets, because they perceive a public benefit in doing so and do not see many downsides, including legal consequences. As New York Times counsel David McCraw said a few years ago (47:30 ff.), the Times has lowered its bar to publication significantly because of the WikiLeaks and Snowden experiences, which (among other things) convinced its legal team “that there is no legal consequence from publishing leaks” of classified information, at least where lives are not clearly at stake.

It was reported in 2013 that the Obama administration decided not to prosecute Assange because “government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.” Six years later, the Trump administration is going forward with an indictment against Assange that has clear and direct implications for U.S. news organizations, and it is doing so in a highly favorable factual context. I do not think this is an accident. I think the government aims here to push back against U.S. journalists in order to re-raise the bar on publishing classified information that has lowered pretty dramatically since 9/11. If the government succeeds in convicting Assange for some of these charges, it will alter the cost-benefit calculus of U.S. media outlets even if these outlets are themselves never prosecuted. And of course a favorable legal precedent in the Assange case might be used to prosecute U.S. journalists for publishing certain forms of classified information.

It will be interesting to see how the U.S. media responds. It will be interesting to see whether Congress responds, especially since it could amend the Espionage Act and other relevant law in any number of ways to clarify what types of national security reporting should be regulated by criminal law. And more than anything else, it will be interesting, and hugely important, to see who wins and who loses in this battle.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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