For better and for worse, Julian Assange pushes limits. In his work life and his sex life, he stands at the border dividing legal conduct from criminality, though it’s not clear which side of that border he occupies.
U.S. officials are looking for a way to prosecute him for publishing secrets while women in Sweden say he crossed the line between consensual romps and rape.
Mainstream journalists say Assange’s release of thousands of classified documents isn’t real journalism. And yet, they realize their plight is tied to his. Some have urged the Justice Department not to prosecute him knowing the reporter’s essential task of uncovering truth could suffer if it did.
For all the lines we’d like to draw, the law makes no distinction among civilian publishers of classified documents, whether unleashed in raw form on WikiLeaks or verified, fleshed out with interviews, analyzed and wrapped into articles in the New York Times.
As for the value of the documents, some contained little more than gossip while others proved quite newsworthy. Last week, for example, we learned that the U.S. Drug Enforcement Administration is doing more than its name implies.
It has become “a global intelligence organization” with “an eavesdropping operation so expansive it has to fend off foreign politicians who want to use it against their political enemies,” the New York Times reported, citing diplomatic cables WikiLeaks obtained.
Israel is on the verge of admitting and apologizing for using forged British documents to get within assassination range of a Hamas leader in Dubai. The admission will come as WikiLeaks was poised to release documents that would prove Israel’s role.
In Russia, the independent weekly newspaper Novaya Gazeta says it will soon publish documents from WikiLeaks that will reveal corruption in the Kremlin. How can that not be good?
No doubt Assange’s carelessness with documents has cramped diplomatic communications. Whether it has also cost lives as some predicted, we don’t know.
But unless publication created “a clear and present danger” to the nation’s security, as Supreme Court Justice Oliver Wendell Holmes Jr. put it in a 1919 case, the Constitution bars U.S. prosecution for free speech by most of us.
As recently as 2001 the top court said that, “absent a need of the highest order,” a radio commentator couldn’t be sued for airing a tape that someone else had gotten by illegally eavesdropping on a phone conversation. In that tape, a labor official had been talking about a teacher’s strike.
Yes, the government can prohibit its employees from leaking, so the U.S. Army arrested the private suspected of leaking to Assange, Bradley Manning, who is facing court martial. It is also why investigators are looking for evidence that Assange encouraged the leak or helped him submit the material.
Charging Assange with conspiring with the leaker could put him under the Espionage Act of 1917. But even if he did conspire, how would Assange be different from a Washington Post reporter who coaxes a government source into disclosing secret information that the public really should know?
Prosecuting Assange would “set a dangerous precedent for reporters in any publication or medium, potentially chilling investigative journalism,” 20 journalism professors at Columbia University wrote to Attorney General Eric Holder and to President Barack Obama this month.
History shows that “government overreaction to publication of leaked material in the press has always been more damaging to American democracy than the leaks themselves,” the professors wrote.
Congress and presidents have periodically tried to punish perfectly constitutional speech, dating from the Alien and Sedition Acts of 1787 and again during the Civil War, World War I and the Cold War, as University of Chicago law professor Geoffrey Stone told Congress this month.
Baby boomers might recall that 1969 news reports revealing the U.S.’s secret bombing of Cambodia led to something of a backlash by President Richard Nixon. He ordered phone taps on officials and reporters to track down the leaks.
Two years later Nixon was so incensed by Daniel Ellsberg’s slipping the Pentagon Papers to the New York Times that he ordered a group of aides to find the leaks and plug them.
These “plumbers,” as they became known, burgled Ellsberg’s psychiatrist’s office in a search for dirt, and broke into the Watergate headquarters of the Democratic National Committee in 1972.
The idea of a president directing a criminal enterprise to suppress the truth and to punish those who reveal it isn’t exactly what one expects from the leader of a democratic society.
Weigh the reaction against the leak, which gave Americans a history of the unwinnable war in Vietnam. It revealed that they had been deceived by president after president. The publication helped hasten an end to U.S. involvement.
What it didn’t do is hurt national security, as the Nixon administration had claimed when it went to court to halt publication by the New York Times.
I don’t think Assange is a true journalist, either, and there is much about the way he operates I find deplorable. But history gives us every reason to doubt official proclamations that he has harmed national security.
It should also warn us against governmental overreaction. If the Obama administration slams Assange with charges, reporters around the world could find it harder to uncover what is really going on and risk prosecution if they do.
By Ann Woolner
Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own. ― Ed.