We Must Prevent the Next Assange

In a plea deal agreed to by the Biden Justice Department Wikileaks founder Julian Assange plead guilty to one charge of violating the Espionage Act.  He was sentenced to time served in Britain for his offense. He is now a free man.

The Espionage Act (18 US Code Sections 781-799) is a constitutional law that prohibits disclosing classified information. Leakers violate it when they give such information to any person unauthorized to receive it and such receiving persons are guilty of an offense under the Act if they further publish classified information. There is no “free speech” exception to these laws. (READ MORE from Jed Babbin: SCOTUS Takes Strange Turns)

The case arose from the 2010 publication by Wikileaks of hundreds of thousands of U.S. classified documents regarding the wars in Afghanistan and Iraq. Many of the documents — and at least one video — Wikileaks published were leaked to it by Bradley (later Chelsea) Manning, an Army enlisted man who was given a long prison sentence for the leaks and then had his/her sentence commuted by then-president Obama.

Assange had fled to London where he hid, for several years, in the Ecuadorean embassy until he outstayed his welcome. He had been imprisoned by the Brits since 2019 while he was fighting extradition to the United States.

Because Wikileaks is a website, Assange has many supporters who claimed he was a journalist and a publisher so anything he did was protected by the First Amendment’s guarantee of a free press. That is entirely wrong.

In 2017, when he was the head of the CIA, former secretary of state Mike Pompeo said of Wikileaks that, “It is time to call out WikiLeaks for what it really is, a non-state hostile intelligence service often abetted by state actors like Russia.” Pompeo said that documents hacked from the Democratic National Committee had been given to Wikileaks which published them.

Because Wikileaks doesn’t even attempt to perform the basic journalistic functions of news gathering and investigative reporting, it is not a news media organization and Assange is neither a journalist nor a publisher. Wikileaks sole purpose is to obtain leaks and publish government secrets. Thus, it and Assange fall outside the First Amendment’s protections.

The question boils down to whether or not the publication of any government secrets can be prosecuted and what limits, if any, does the First Amendment put on the publication of government secrets.

Before Assange

A little history is in order.

During the Nixon Administration, Daniel Ellsberg leaked the seven- thousand-page study of the Vietnam war that came to be known as the “Pentagon Papers” to the New York Times which, after the government tried to restrain publication, went ahead and published them. The study was, to one degree or another, classified. Its publication was highly embarrassing to the U.S. government going back to the Johnson administration.

The Supreme Court was presented with an attempt by the Nixon administration to prevent the publication of the secret “Pentagon Papers” through the courts. In a three-paragraph per curiam decision — which means none of the justices signed the ruling — SCOTUS said “any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity” and “the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” The Court found that the government hadn’t met that burden.

But in six separate concurring opinions, the Court was all over the place. The opinions ranged from Justice Black saying that no power of prior restraint can be given to the government to Justice Brennan concluding that prior restraint on publication — censorship — would be permissible in certain circumstances, but the vague, nonspecific claims of harm to national security made in that case were insufficient to justify prior restraint.

There have been a few cases in recent years regarding highly classified information but, again, they are not like the Assange case. For example, Edward Snowden — an employee of an NSA contractor — leaked to the New York Times about two million secret and top-secret documents as well as the details of top-secret NSA programs that were put in place after the 9-11 attacks to spy on terrorists here and abroad. Snowden fled to Russia after the leaks which significantly damaged our ability to gather intelligence on terrorists.

There was an opportunity for the government to attempt a prior restraint in the Snowden case and it tried. President George W. Bush made a personal call to the Times’s publisher to plead for restraint. But the New York Times — like it did in the Pentagon Papers case — published the story. On the same day that the story was published NYT reporter James Risen published a book containing much of what Snowden leaked.

Snowden, unlike Assange, didn’t pretend to be a journalist.

Assange Is No Journalist

With regard to Assange, Sen. Rand Paul (Libertarian-Sorta-R-KY) was, as usual, both right and wrong. He said on X, “This plea deal sets a dangerous precedent, criminalizing journalism and damaging our First Amendment rights. The ‘Land of the Free’ can and must do better.” (READ MORE: Hunter’s Laptop: The Other Story)

Paul is right in that we need to do better, but his jump to the conclusion that Assange is a journalist is neither factual nor logical. Assange is neither a journalist nor a publisher. Again, Wikileaks was created solely to publish government secrets. And Assange didn’t act responsibly. He gave the government no notice that he was going to publish its secrets.

So when can someone who publishes our nation’s most closely-held secrets claim that he is a journalist or publisher? When is prior restraint appropriate? The Supreme Court’s opinion in the New York Times‘s Pentagon Papers case gives us no clue of how the government can prevent publication of its secrets, but there must be some means to protect secrets that will damage national security.

We are left a twofold problem.

First, every publisher has some level of responsibility to protect the nation’s secrets. When something is so important and will damage the government’s ability to protect major secrets no publisher should deny a request to withhold publication which demonstrates the damage that publication will cause. It shouldn’t require a personal telephone call from a president to a publisher.

That requires that the publisher take some responsibility on itself. Most newspapers have a strong liberal bias. We cannot expect newspapers such as the New York Times or the Washington Post to deny their biases and withhold any reports no matter how damaging to the nation.

We are left with prior restraint, brought by an injunction in federal court, to prevent publication of secrets that will damage the nation.

Second, just because someone or some group operates a website does not mean they are entitled to protection under the First Amendment.

The Supreme Court punted on the New York Times‘s Pentagon Papers case. There will be another opportunity — if publishers give the government a chance — to set out just when prior restraint is proper. The next time — and there will be one — the Court cannot fail to set out how to protect our most highly valued secrets.

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