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The Law Being Used to Prosecute Julian Assange

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Last week the US Justice Department announced the indictment of Julian Assange on 17 counts of conspiracy to violate the 1917 Espionage Act. Although the government had previously charged Assange with helping Chelsea Manning, then a private in the US Army, to hack military computers, the new indictment greatly ups the ante, for Assange is now accused of publishing the Manning documents on his WikiLeaks website. This is a far more serious matter—the first time in the history of the United States that the publication of truthful information has been defined as a crime. The New York Times immediately raised an alarm. The prosecution of Assange under the Espionage Act, warned a May 24 editorial, “could have a chilling effect on American journalism. It is aimed straight at the heart of the First Amendment.”

Few would dispute that governments may need to keep certain data secret in the interest of national security. At the same time, the decision not to divulge information must be scrupulously weighed in a democracy against the public’s right to know.

The 1917 Espionage Act does not concern itself with such quibbles, however; it comes down wholeheartedly on the side of secrecy and national security. It does not require proof that the information at issue is highly significant or even that it is secret, but merely that it is “connected with” or “relating to” national defense. Nor does it demand that the alleged perpetrator must actually have harmed the United States or benefited a foreign country, only that he or she intended to do so. Partly because demonstrating intent is so difficult (and refuting it even more so), attorney Susan Buckley, a specialist in media litigation, pronounced the act “one of the scariest statutes around.” Although it is widely acknowledged to be a woefully crude legal instrument—the eminent First Amendment attorney Floyd Abrams recently characterized it as “almost farcically overbroad”—it remains on the books essentially as it was written a century ago.

Forged in the crucible of war during a period of unprecedented censorship and repression, the 1917 Espionage Act was pushed through Congress by President Woodrow Wilson, who was eager to silence critics at a time when there was widespread resistance to America’s engagement in the First World War. Thus, Section 3 of the act forbids making statements or conveying reports during wartime with the intent to interfere with the war effort. As interpreted, this provision gave the postmaster general of the United States authorization to impound or deny mailing rights to any publication he considered unpatriotic. Scores of publications were affected, including American Socialist, the organ of the Socialist Party, and Solidarity, a journal published by the International Workers of the World (the Wobblies). A 1918 issue of The Nation was held back at the New York Post Office because of an editorial titled “Civil Liberty Dead.”

Based on language in the act that criminalized efforts to obstruct military recruitment, the government rounded up thousands of anti-war protesters, union activists, and political radicals, many of whom were held without trial in hastily organized internment camps. The brutality with which some of the arrests were carried out and the appalling conditions in several of the camps were widely reported in the media. Among those prosecuted was a movie producer, Robert Goldstein, who was tried and sentenced to 10 years because his film about the American Revolution portrayed Britain unfavorably. (The government alleged that the film had undermined support for the war, since the British were now allies.) Also brought to trial was Emma Goldman, who was arrested in 1917 in the New York office of her feminist/anarchist publication Mother Earth and charged with anti-conscription activities. She was convicted and sentenced to two years in federal prison. After her release she was deported to the Soviet Union, her birthplace.

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