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Trump’s Charges Against Julian Assange Would Effectively Criminalize Investigative Journalism

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Isolated in Britain’s Belmarsh Prison, Julian Assange was too ill to attend his own extradition hearing this week—a hearing now postponed to mid-June. This pause in the action is also an opportunity to contemplate the dangerous new path on which the Trump administration has embarked in its pursuit of the WikiLeaks founder, with the 17 new counts of violating the Espionage Act filed by the Justice Department last week. Those new counts make the real targets of the Assange prosecution clear: journalists worldwide.

The new charges against Assange—far broader than the narrow password-hacking charge on which he was first detained for extradition—are unprecedented, politically charged, and consequential. Like the earlier charge, they focus on his 2010 publication of the “Iraq War Logs” document cache and the “Collateral Murder” video showing airstrikes targeting two Reuters correspondents. These new charges accuse Assange of trying to persuade his source, Chelsea Manning, to leak; of helping to protect that source’s identity; and of publishing information that, in government officials’ opinion, could harm national security. All of these charges may well describe how intelligence officials view the leaks in question. But they also describe the routine tradecraft of investigative and national-security journalists—and they would effectively criminalize a wide range of essential reporting practices in the United States.

The DNA of these new charges runs deep into the history of presidential abuse of power. President Trump and Attorney General William Barr are explicitly picking up the foiled press-punishment ambitions of President Richard Nixon in the Pentagon Papers case. When The New York Times first published the Pentagon Papers in June of 1971, Nixon might have let the storm pass. After all, the papers, leaked by former Pentagon analyst Daniel Ellsberg, didn’t directly critique the new Republican president; they exposed the disastrous, cynical Vietnam policies of Nixon’s hated Democratic predecessor, who had been repudiated by his own party. But Nixon saw in the publication of a secret Defense Department study of US involvement in Vietnam something else: his opportunity to muzzle restive, critical journalists. So his Justice Department went to court and, citing the Espionage Act, won an injunction blocking the Times from continuing to publish its series. As Steven Spielberg recounted in The Post, his 2017 film about that Washington paper and the Pentagon Papers case, reporters and editors at the Post defiantly obtained and published their own copy of the documents; other news outfits rallied round; and ultimately the US Supreme Court upheld the Times’s and the Post’s First Amendment right to publish without prior government restraint.

Spielberg’s film didn’t mention that the Pentagon Papers decision, ringing as it was, left one glaring loophole: the Espionage Act itself. The Court deliberately sidestepped any ruling on whether the act could be deployed to punish publishers of secrets as co-conspirators after the fact. Even after losing the Pentagon Papers case, Nixon and his Attorney General John Mitchell pursued an Espionage Act prosecution of whistleblower Ellsberg—which fell apart only when it became clear that the Nixon administration’s gross misconduct in its attempt to identify and punish government leakers, eventually revealed in the Watergate scandal, had irretrievably damaged their case. While American journalism has spent decades savoring the Pentagon Papers victory, that Espionage Act loophole has been sitting, waiting for a president desperate enough, vindictive enough, or thuggish enough to make use of it.

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