It's Finally Over!
After six years, the case against Julian Assange ended with his guilty plea. The case had the potential to reframe how we interpret the Espionage Act and its relationship to the First Amendment.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the District of Maryland, a medical professor at the City College of New York was charged with falsifying scientific data used to support nearly $17 million worth of grant money for use it researching Alzheimer’s treatment.
In the Eastern District of Virginia, a man and woman were sentenced for luring the man’s younger cousin from India to come to the United States. When the cousin arrived, he was forced to work long hours at the couple’s gas station for little pay. This lasted for three years. They lured him with the promise of an education. A jury found the couple guilty of forced labor and other charges.
In the Middle District of North Carolina, a man was convicted of conspiracy to break into people’s homes and forcibly steal their cryptocurrency. While the case involved one such incident in Durham, North Carolina, incidents occurred in Florida, New York, and Texas as well.
The long, and now complete, saga of Julian Assange
Lost in the shuffle of Supreme Court decisions and presidential debates, the United States Government’s case against Julian Assange concluded with Assange entering a guilty plea to conspiracy to violate the Espionage Act. Assange was the founder of Wikileaks, a website devoted to exposing information that national governments intended to keep secret. It rose to prominence, in part, due to its publication of material acquired from a United States Army intelligence analyst, Chelsea Manning. Assange acquired this information between 2009 and 2011. The information was designated “SECRET” and contained national defense information.
The government first pursued Chelsea Manning, arresting her in 2010. When she divulged this information, she was a member of the armed forces. Rather than pursue charges through the federal criminal courts, the government proceeded through the military justice system. This gave them a broader range of offenses. Ultimately, she faced a variety of charges, including Espionage Act violations. She entered guilty pleas to some charges and went to trial on others. The jury found her guilty of most charges but acquitted her on the most serious charge: aiding the enemy. The Judge Advocate presiding over the case sentenced Manning to 35 years. In 2017, just before leaving office, President Obama commuted the remaining years of Manning’s sentence.
With Manning’s case complete, the Justice Department launched its case against Assange. Manning was called before the grand jury but refused to testify, eventually spending another year incarcerated. Despite Manning’s refusal, the government secured sufficient evidence against Assange to charge him with conspiracy to violate the Espionage Act in 2018 in the Eastern District of Virginia.
The indictment proved to be the easy part. Assange was not in the United States when the disclosures occurred nor was he in the United States at the time of indictment. This meant that the United States had to get custody over Assange. The matter became more complicated because Sweden also wanted Assange regarding allegations that Assange sexually assaulted someone in Sweden. Assange, in 2012, took refuge in the Ecuadorian embassy in the United Kingdom. He claimed that he feared political persecution from the United States. This lasted until 2019 when Sweden dropped its case and Assange had worn out his welcome with Ecuador. British authorities were invited into the embassy and they arrested Assange. This touched off a 62-month legal battle over Assange’s extradition to the United States. That battle finally culminated last week, when Assange agreed to enter a guilty plea in the District Court for the Northern Mariana Islands and receive a 62-month sentence with credit for time served.
The case itself raised an important question about the intersection of the Espionage Act and the First Amendment. The Espionage Act originate against the backdrop of World War 1 as the United States moved closer to entering the war. Knowing that the war was unpopular in the United States and that there was a large German population, the federal government sought to deter efforts to undermine war preparations. In 1917, Congress passed the Espionage Act which prohibited the unauthorized collection, communication, and disclosure of national defense information. Even before its enactment, people realized the law’s potential conflict with the First Amendment.
President Woodrow Wilson’s administration assured Congress that federal prosecutors could be trusted with such broad statutory power. The statute would only be used in “appropriate” cases. While the government used the Espionage Act for a wide variety of cases during World War 1, with many of them establishing the First Amendment principles we rely upon today, the federal government did not pursue journalists.
The concern was that the Espionage Act covered the distribution or publication of national defense information. What would happen if a newspaper received national defense information and published it? Would the newspaper journalists and publishers face prosecution? During this time, investigate journalism was an important source of information. Journalists were exposing government and corporate abuses. If journalists were prosecuted, it would effectively stifle these investigations. Thus the government established a line it would not cross until the Assange case.
With the passage of time, the line between regular publication and journalistic publication grew more rigid. Journalists were off limits. In fact, the government began using journalists to leak classified information to persuade the public on policy choices.
This began changing at the start of the 21st century. The New York Times published the name of a CIA operative, placing her life in danger. Journalists were jailed for contempt as they refused to divulge the source. Then came WikiLeaks and Julian Assange.
WikiLeaks’s mission was to publish purloined national security information. It sought to be an open-source intelligence tool. Assange wanted it to look like Wikipedia where people from around the world posted the classified information they possessed. It never quite fit that model but it gained widespread notoriety with the Manning leak. To the government, this site published so much information and its notoriety could encourage copycats. Therefore, the government had to act.
The defense raised was that Assange was a journalist. He was doing what most other journalists do when they obtain classified information; they publish it. The government responded that this was not journalism. There was no larger story told. It was simply releasing the documents for the public to see them. At its heart, this case would answer what constitutes journalism for the purposes of the First Amendment guarantee of free press. It is something the Court has never addressed. This is especially important in a modern world where everyone, including me, could be a journalist and news publisher. We need to draw a line somewher or the Espionage Act, which does serve important national security interests, could become a dead letter.
With Assange entering a guilty plea, the opportunity to answer who is a journalist disappears, at least until the government decides to prosecute another publisher.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!