<nettime> The Guardian analysis/ Julian Borger on Assange's new indictment

[Patrice Riemens <patrice@xs4all.nl>]

Original to:
https://www.theguardian.com/media/2019/may/23/julian-assange-indicted-what-charges-mean-for-free-speech


Indicting a journalist? What the new charges against Julian Assange mean 
for free speech
By bringing new charges against the WikiLeaks founder, the Trump 
administration has challenged the first amendment

Julian Borger in Washington
Fri 24 May 2019


By indicting Julian Assange under the Espionage Act, the Trump 
administration has crossed a line that every other US administration has 
shied away from: challenging the first amendment in defence of 
government secrets.

The only reason the 102-year-old act does not criminalise national 
security journalism is because no administration has sought to put it to 
the test. The law bans the publication of government secrets and offers 
no explicit protections to the press under the amendment guaranteeing 
freedom of speech.

Until now, most legal observers have argued that the law would not 
survive scrutiny by the supreme court if it were ever used against 
journalists.

The Obama administration debated whether it could be used against 
Assange after his organisation, WikiLeaks, published military 
communications from the Afghanistan and Iraq wars, as well as a huge 
trove of diplomatic cables. But Obama’s team ultimately decided against 
taking that step.

Matthew Miller, who was a justice department spokesman at the time, 
recalled: “The justice department in the Obama administration thought it 
would be very dangerous to charge Assange with publication, as the 
Espionage Act doesn’t make any distinction between journalists and 
non-journalists.

“The second reason – which we never got to – was that no one was sure if 
it would withstand constitutional scrutiny. It probably wouldn’t,” 
Miller said. “That said, the supreme court has changed significantly 
since then, and maybe the DoJ [department of justice] has made that 
calculation.”

Trump’s justice department has argued that by encouraging Chelsea 
Manning, the whistleblower in the case, to hack material from inside 
secure servers, and publishing without regard for the safety of people 
named in the documents, Assange does not fit the definition of a 
journalist.
Chelsea Manning jailed again as she refuses to testify before grand jury
Read more

The assistant attorney for national security, John Demers, declared: 
“Julian Assange is no journalist.”

But “journalists don’t seem to be taking a lot of comfort from that”, 
said Quinta Jurecic, the managing editor of the Lawfare blog, pointing 
out there is no statutory definition of journalism. “This is what 
journalists have been worried about. The concern is that basically the 
government has just taken a step closer to indicting a journalist for 
the same activities.”

Scott Horton, an international human rights lawyer who lectures at 
Columbia Law School, said the administration could try to produce 
evidence to support a contention that in 2016, Assange knew that he was 
receiving emails stolen from the Democratic party by Russian military 
intelligence, proving he was acting as a foreign agent.
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“That would open a Pandora’s box for this administration, which is 
trying to get away from the idea of collusion,” Horton said. “The 
downsides for the Trump team are extremely dangerous.”

The 17 new indictments could also work against current US efforts to get 
Assange extradited from the UK. The extradition treaty between the two 
countries has an exception for political offences and Assange could 
raise issues under the European Convention on Human Rights, said Stephen 
Vladeck, law professor at the University of Texas.

“I don’t know that this will ultimately affect the result of the 
extradition proceedings but it will certainly complicate them,” Vladeck 
said.

Even if Assange is extradited, the effort to create a loophole in the 
first amendment to charge Assange is a huge gamble for the Trump 
administration, and one with potentially severe consequences for the 
freedom of the press.

“That’s why press freedom advocates see a case like this as a 
constitutional Rubicon,” he added. “Because no matter what we think of 
the individual defendant, once the government sets a precedent that 
merely publishing or even receiving this kind of information … can 
subjected to prosecution, it’s hard to see why the same theory couldn’t 
encompass and therefore chill some of the most important journalism we 
see.”

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