• Julian Assange Will Die Alongside Your 1st Amendment Rights

    December 2, 2018

    Tags: , , , , ,
    Posted in: Democracy, Post-Constitution America




    Accidentally disclosed information confirms the U.S. is actively planning to prosecute Julian Assange. What happens to Assange will almost certainly change what can be lawfully published in our democracy. This threat to our freedoms is being largely ignored because the Assange, once a progressive journalist, is now regarded as a hero-turned-zero. At stake? The ability of all journalists to inform the public of things the government specifically wants to withhold.


    A clerical error revealed the Justice Department secretly has filed criminal charges against Assange. Court papers in what appears to be an unrelated case used cut-and-pasted language from documents prepared previously against Assange.

    Though the new information makes clear prosecution is planned if Assange can be delivered to American custody, no further details are available. Assange is under scrutiny at a minimum for unauthorized possession of classified material going back to at least 2010, when Wikileaks burst on to the international stage with evidence of American war crimes in Iraq, and exposed years worth of classified State Department diplomatic cables. More recently, Assange has been accused of trying to manipulate the 2016 U.S. presidential election with his release of emails from the Democratic National Committee server. The emails, some believe, came to Wikileaks via hackers working for the Russian government (Assange denies this) and are deeply tied to the claims of collusion between the Trump campaign and Moscow otherwise known as “Russiagate.” Less publicized in the media but of critical concern inside the U.S. government is Wikileaks’ publication of the so-called Vault 7 materials, CIA hacking and malware tools, which revealed American technical intelligence skills and methods. Assange has hinted on at least one occasion he may have “Vault 8” materials as yet unreleased.

    When Assange is prosecuted, on trial with him will be a key question concerning the First Amendment: do journalists actually enjoy special protection against national security charges? Can they publish classified documents because the national interest creates a 1A shield to do so? Or only when the government allows it?

    Under the current “rules,” you get caught handing me a SECRET document, you go to jail. Meanwhile, I publish to millions, including any Russian intelligence officers with Internet access, and end up on Kimmel next to Taylor Swift. I whisper “I’m a freedom fighter, you know” into Taylor’s moist ear and she sighs.

    Ask Edward Snowden, in dark exile in Moscow. Talk to Chelsea Manning, who spent years in Leavenworth while journalists for the New York Times and the Washington Post won accolades for the stories they wrote based on the documents she leaked. See how many stories today cite sources and reports, almost all of which are based on leaked classified information, stuff the government doesn’t want published yet accepts as part of the way journalism and the 1A work.

    Yet despite widespread practice, there is no law rendering journalists immune from the same national security charges their sources go to jail for violating. There is no explicit protection against espionage charges written between the lines of the First Amendment. It is all based on at best an unspoken agreement to not prosecute journalists for revealing classified data, and it appears it is about to be thrown away to nail Julian Assange.


    In 1971 Daniel Ellsberg leaked the Pentagon Papers, a classified history of the Vietnam War, to the New York Times. Reporters at the Times feared they would go to jail under the Espionage Act but published anyway, even as the Washington Post wimped out. The Nixon administration quickly found a court to order the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper.

    The Supreme Court then handed down New York Times Company v. United States, a victory for the First Amendment which allowed the Papers to be published, but an opinion which sidestepped the larger question about whether the 1A protects journalists publishing classified in favor of simply affirming the government couldn’t censor the news in advance. The Court left the door open for the government to prosecute both the leakers (by dismissing Ellsberg’s leaker case on technical grounds and ignoring his public interest defense) and the journalists who publish them (by focusing narrowly on prior restraint.) The Justices avoided saying the 1A offered a specific shield to journalists in matters of national security.

    The Pentagon Papers case has governed everything about national security journalism from that day until the moment the U.S. government finally gets Julian Assange into an American courtroom.

    On the source side, the Obama administration was especially virulent in prosecuting leakers. Trump continued the policy by throwing the book at Reality Winner. Both administrations made clear there was nothing to distinguish between taking classified documents to inform the public and taking them say with the intent to hand over secrets to the Chinese. On the other side of the equation, the journalists, the government (including, to date, Trump despite all the noise about attacking the press) has chosen not to prosecute journalists for publishing what leakers hand over to them.


    The closest step toward throwing a journalist in jail over classified information came in 2014, when Obama Attorney General Eric Holder permitted subpoenaing New York Times reporter James Risen regarding a former CIA employee. After much legal muscle tussle, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and infringement of press freedom. The Supreme Court refused to consider whether the First Amendment includes an unwritten “reporter’s privilege” in the free press clause. The Court instead upheld existing decisions finding the Constitution does not give journalists special protections. The door was w-a-y open to throwing Risen in jail.

    But instead of becoming the first president to jail a journalist for what he published, Obama punted. Happy with the decision affirming they could have prosecuted Risen, with no explanation prosecutors asked the U.S. District Court to simply leave Risen alone. Risen’s alleged source went to jail instead for leaking classified. The unspoken rules stayed intact.

    Unspoken rules are useful — they can be read to mean one thing when dealing with the chummy MSM who understands where the unspoken lines are even if they need the occasional brush back pitch like with Risen, and another when the desire is to deep-six a trouble-maker like Assange. Julian Assange poked the Deep State — he exposed the military as war criminals in Iraq (ironically in part for gunning down two Reuters journalists), the State Department as hypocrites, laid bare the CIA’s global hacking games in the Vault 7 disclosures, and showed everyone the Democratic primaries were rigged. None of those stories would have come to light under the MSM alone. And if Assange does know something about Russiagate (did he meet with Manafort?!?), what better place to silence him than a SuperMax.

    The government is likely to cite the clear precedent from the Obama years it damn well can prosecute journalists for revealing classified information, and keep the established media happy by offering enough thin exceptions (natsec journalism groupies have already started making lists) to appear to isolate Assange’s crucifixion from setting broad precedent. Say, start with the fact that he wasn’t covered by the 1A outside the U.S., that his sources were Russian hackers seeking to harm the U.S. instead of misguided chaps like Ellsberg and Manning. Assange had no national interest in mind, no sincere desire to inform the public. He, a foreigner no less, wanted to influence the 2016 election, maybe in collusion!


    Shamefully, those stuck in journalism’s cheap seats are unlikely to side with Assange, even though they wrote stories off what he published on Wikileaks. They’ll drift along with the government’s nod and wink this is all a one-off against Julian, and those who play by the government’s unspoken rules are still safe.

    They’ll self-righteously proclaim Assange going to jail a sad but unfortunately necessary thing, claiming he just took things too far dealing with the Russkies, ignoring while the door to prosecute a journalist for national security has always been carefully left open by administrations dating back to Nixon, it is only under their watch that it may be slammed on the hands of one of their own whom they refuse to see, now, for their own misguided self-preservation, as a journalist. The Daily Beast’s take on all this, for example, is headlined a TMZ-esque “Unkempt, Heavily Bearded Julian Assange No Longer Has Embassy Cat For Company.”

    They will miss where previous cases avoided delineating the precise balancing point between the government’s need to protect information, the right to expose information, and the media’s right to publish it, an Assange prosecution will indeed create a new precedents, weapons for the future for clever prosecutors. It will be one of those turning points journalists someday working under new press restrictions will cite when remembering the good old days.



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    Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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  • Recent Comments

    • Rich Bauer said...

      1

      The MSM is okay with this cause Assange apparently ain’t a journalist. (Read: it doesn’t want the competition or to be embarrassed by real investigative journalists.) When the WSJ, NYT and the rest routinely publicize classified info, the gov agrees to disagree and that’s that. See Risen. Assange should be willing to be prosecuted in this corrupt country just to watch the MSM screw itself in knots justifying the unequal treatment.

      12/2/18 9:54 AM | Comment Link

    • John Poole said...

      2

      When you set out to expose corruption in high places expect to be at best neutered and at worst “disappeared”. Assange assumed perhaps he could be a hero and then be given a handsome stipend for the rest of his long life from bringing to light the awful deeds of empire. What did Ellsberg’s publications do? Nothing! America is now airbrushing the Vietnam War and the sheeple are loving it. They are relieved that they are now proclaimed good people after all. -Vietnam was America’s noble gesture to bring goodness and prosperity to savages. Ellsberg is now a joke and so will Assange and Wikileaks be in a few decades. Sorry to upset your delusions PVB. There never were “good old days”.

      12/3/18 5:59 PM | Comment Link

    • John Poole said...

      3

      So that’s it. My lame musings are the last word?

      12/5/18 6:43 PM | Comment Link

    • Rich Bauer said...

      4

      JP,

      Cognitive dissonance is a terrible thing to mind. The airbrushing of our terrible crimes lets US feel good about ourselves. Hey, we’re the good guys, right?

      12/6/18 9:33 AM | Comment Link

    • Rich Bauer said...

      5

      Trumpies are free to tell lies, but when it comes to speaking truth to power like Trumpie getting impeached and how that could change government programs, somehow that ain’t covered by the 1st.

      12/6/18 1:00 PM | Comment Link

    • Rich Bauer said...

      6

      Well, Assange won’t die alone.

      The Whore of Baloney

      As President Donald Trump confirmed on Friday that he will nominate State Department spokeswoman and former Fox News anchor Heather Nauert as U.S. ambassador to the United Nations, critics argued that while the president’s decision to select someone with zero diplomatic experience to represent the U.S. before the international community is “appalling,” the belligerent foreign policy and contempt for human rights that Nauert will be in charge of selling is immeasurably more dangerous.

      “The U.S. is breaking treaties, cutting foreign aid, imposing unilateral sanctions, threatening other countries, expanding the arms race, and gravely endangering the global environment. Global peace itself is being put at risk.”
      —Jeffrey Sachs, Columbia University

      “Appointing a Fox News talking head to represent our country at the United Nations is completely in character [for Trump],” argued Brian Dixon, senior vice president for media and government relations for the Population Connection Action Fund. “Nauert brings no experience, no understanding and, frankly, no interest in learning.”

      She’s perfect to represent the Dumbest Country on the Planet.

      12/7/18 11:47 AM | Comment Link

    • John Poole said...

      7

      Bauer- We must not miss the confirmation hearings. Could the committee reject her? Maybe.

      12/7/18 2:01 PM | Comment Link

    • Rich Bauer said...

      8

      She was selected because of her ability to spin shit like a mother-f@##er.

      “We have a very strong relationship with the government of Germany,” Nauert said. Tomorrow is the anniversary of the D-Day invasion. We obviously have a very long history with the government of Germany, and we have a strong relationship with the government of Germany.”

      Wow. Just wow.

      12/7/18 7:13 PM | Comment Link

    • John Poole said...

      9

      Let’s take a poll. How many feel Assange will find -after being whisked from the Ecuadorian Embassy:
      #1. Safe refuge somewhere
      #2. Be killed by a drone personally guided by Hillary Clinton while exiting the embassy:
      #3. Become a Jesuit priest and serve the jungle inhabitants of Burkina Faso.
      #4. Your idea.

      12/8/18 1:03 PM | Comment Link

    • Rich Bauer said...

      10

      JP,

      If Assange knew anything about the Russian conspiracy, he would already be dead. He’s a nobody who just wanted to get laid..like Trump.

      12/9/18 6:45 AM | Comment Link

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