For over a decade, there has been a raging debate over precisely what Julian Assange is – whistleblower, journalist, or spy.
Now that question will have to be answered after the United States hit him with 17 new counts under the Espionage Act for receiving and publishing information from Army intelligence analyst Chelsea Manning.
The Trump administration has now crossed the line that many counselled it to avoid – and may have triggered the most important press freedom case in the US in 300 years.
While the status of Assange has long been hotly debated, his actions in publishing classified information on Wikileaks is a common component of journalism. Indeed, the most celebrated cases in history – such as the failed attempts to stop the release of the Pentagon Papers in 1971 – were based on the publications of classified evidence.
Assange’s supporters note that his publications revealed alleged war crimes in places like Afghanistan and Iraq that were unlikely to have been exposed otherwise. If it was a crime for Assange to receive and publish such information, much of the journalism in the US would become a de facto criminal enterprise.
In April, the government avoided this threshold question by charging Assange with a single count of conspiracy to commit computer intrusion. The charge related to helping Manning obtain access to defence department computers in 2010. In doing so, the justice department stayed clear of charging him as a publisher as opposed to an intruder. That is until Thursday.
The charges were brought under the controversial Espionage Act of 1917. Passed after World War One, it was used to target anti-war activists and political dissidents.
The government charged figures ranging from German-American Socialist congressman (and newspaper editor) Victor Berger to anarchist and author Emma Goldman to five-time Socialist Party presidential candidate Eugene Debs.
The law has long been denounced as unconstitutional in its criminalising of receiving and publishing classified information. It is no surprise that the justice department had to use this much-ridiculed law to achieve this ignoble goal.
Counts nine through 17 against Assange concern the publications of “national defence information.” The justice department takes pains to try to argue that Assange is not a journalist and that the publication counts concern the disclosure of not just classified information but the actual names of intelligence sources. That however may establish that Assange is a poor journalist, but a journalist all the same.
If successful, the justice department would have not only the ability to prosecute but to investigate a wide array of journalists. This danger is made all the more acute in an administration headed by a president who routinely calls the press “the enemy of the people”.
However, the danger did not begin with President Trump. The Obama administration used this law to conduct surveillance on mainstream journalists, including a well-regarded Fox News reporter.
The Obama administration reportedly rejected the option of a criminal charge against Assange under the Espionage Act, in recognition of the danger to press freedom. Mr Trump and Attorney General William Barr have now crossed that Rubicon.
This also comes at a particularly precarious time for journalists around the world. Reporters are being arrested and killed in increasing numbers. Some countries like China and Russia have even taken up the Trump trope of “fake news” to crack down on the press. Most vividly, Saudi Arabia’s crown prince is accused of ordering the brutal murder of journalist Jamal Khashoggi – yet has suffered few consequences from the Trump administration.
It is not just the “usual suspects” attacking the free press. Just this week, the French government put three journalists under criminal investigation for disclosing alleged lies by French officials on the country’s role in the war in Yemen.
A couple days later a senior reporter, Ariane Chemin, at the renowned French Le Monde, was called in for questioning after revealing embarrassing details about a former bodyguard to President Emmanuel Macron.
Now the US, once the bastion of free press, is trying to establish that any journalist can be prosecuted for receiving or publishing classified information. Since the government routinely over-classifies a wide array of information, it would leave every journalist at constant risk of surveillance and prosecution.
In the past, government officials have distinguished between those who leak or steal classified information and those who cover it. The person responsible for stealing the information in this case was not only punished but punished severely. Manning was sentenced to 35 years in prison in 2013 – the longest sentence for a leak case in American history – but former President Barack Obama commuted most of the remainder of her sentence in January 2017.
Now however, the Trump administration has used the grand jury system to repeatedly jail Manning for refusing to testify against Assange. As soon as one grand jury was disbanded, and Manning released, the justice department simply called another and arrested her again.
Adding to this raw coercion, US District Judge Anthony Trenga imposed a daily fine of $500 (£395) for every day that she is in custody after 30 days, and $1,000 every day in custody after 60 days. So Manning will be left in jail and bankrupted until she is prepared to testify against Assange.
All of this can be rightfully considered by the UK court in deciding whether Assange will be extradited to the US. For example, in 2002 British hacker Gary McKinnon argued that he would be denied basic protections if extradited to the US. The case went all the way to the House of Lords and the European Court of Human Rights.
In 2012, his extradition was denied by the home secretary at that time, Theresa May, on the basis that extradition “would be incompatible with Mr McKinnon’s human rights.”
With the new charges, any extradition decision may have to follow an identification decision of what Assange was doing when he published these stories. If he is a journalist, his case could prove a defining moment for both the UK and the US.
Ironically, Britain has never had as many protections for journalists in a system with Official Secrets laws that give sweeping investigatory and prosecutorial powers to government officials. Yet, it will now be the US that is presented as more hostile to the free press.
Assange has few friends in Washington. The Democrats have been relatively muted in responding to the charges. After presenting Wikileaks as a tool used by Russia to try to help Mr Trump win the presidency, that narrative breaks down if they recognise Assange as a journalist.
The Republicans have their own narrative of journalists as deep-state co-conspirators. Even mainstream have long kept Assange at arm’s length. For them, he is the symbol of reckless figures emerging in the “new media” of the internet.
Assange is not the rallying figure advocates for press freedom would choose, but he is the one they have been given. Assange may be the first modern journalist to be prosecuted under this law. However, if successful, he will certainly not be the last.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and BBC legal analyst. He has argued both leading free speech and national security cases in the federal courts.
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