The Assange legal team and various alternative media outlets are creating the completely false and absurd impression that the Assange plea deal is a “vindication” and “huge win for free speech” (NY Times story:
His lawyers said that he was not subject to a gag order or to any other limitations as part of his deal. They added that he would also seek a pardon from President Biden, describing his release as long-sought vindication for acts of disclosure that they said had served the public interest.
“This is a huge win for Australia and for Australian democracy,” Jennifer Robinson, one of Mr. Assange’s lawyers, said. “This is a huge win for free speech.”
I call complete bullshit on that. This was a huge blow against the First Amendment, a free press, free speech and it chills and even criminalized investigative journalism.
Assange committed no crime – he was acting as both a publisher and journalist.
But he pled guilty under the Espionage Act to conspiracy to obtain confidential defense information. The alleged conspiracy involved advising his journalistic source, Bradley Manning, on how to cover his computer tracks and avoid detection. Manning had authorized access to the classified documents he leaked, Assange did not help with access.
Every investigative journalist works with sources – particularly whistleblowers – to advise them how to obtain information, convey information in confidence, and cover their tracks and avoid detection. I’ve done that myself and I am not a journalist.
Under the legal theory of the Assange plea deal, virtually every investigative reporter who obtains, is provided, handles, and/or publishes classified information could be prosecuted under the Espionage Act.
The Assange legal team threw the US First Amendment under the bus during the UK Court proceedings, where they argued that Assange was NOT protected by the First Amendment. They made this argument not based on any legal analysis or principled grounds, but to avoid extradition to the US.
It’s complicated, but basically the British Court set two conditions that could dismiss the extradition request: one of them was that if Assange was NOT protected by the First Amendment in US criminal court, then he could not be extradited. So Assange’s lawyers claimed the First Amendment did not apply. I wrote about that several weeks ago in this post:
Now, a few weeks later, Assange himself argues the exact opposite. In the federal Court plea hearing Assange claimed that he thought the First Amendment protected him, totally contradicting his UK extradition arguments just weeks before: (Consortium News)
“Working as a journalist, I encouraged my source to provide information that was said to be classified,” Assange replied. “I believed the First Amendment protected that activity, but I accept that it was a violation of the espionage statute.”
Assange then significantly added: “The First Amendment was in contradiction with the Espionage Act, but I accept that it would be difficult to win such a case given all these circumstances.”
With a gun to his head, Assange cut a deal, period. He did not fight to defend the First Amendment, like Dan Ellsberg did.
Let’s not call that any kind of victory. The National Security State is emboldened and President Biden, who supported the Trump indictment and sought extradition is not held accountable. It is exactly the same legitimation of government crime as when President Obama’s “look forward not backward” approach normalized Bush war crimes, illegal war, GWOT and the Wall Street bailout.
Politically, this all happened when Biden is campaigning on threats to democracy and correctly accusing Trump of threats to the Constitution, vindictive abuse of the prosecutorial power, undermining the independence of the judiciary, and politicizing law enforcement – all of which is exactly what Biden’s DoJ is hypocritically doing to Assange (the Democratic Hillary fans and the CIA are ruthlessly vindictive. Just rad some of the reader comments on The NY Times stories. They HATE Assange. Hillary even wanted to drone him. CIA planned to assassinate him). Unreal that Biden gets a pass on this. That’s political malpractice by the Assange strategists.
Assange’s lawyers were either incompetent (which I strongly doubt) or they seek to obfuscate these strategic errors and legal issues with absurd statements, like this: (Consortium News)
Mr. Assange also said clearly he believes there should be First Amendment protection for that conduct, but the fact of the matter is, as written, the Espionage Act does not have a defense for the First Amendment.
Say what? A statute does not need to have a “defense for the First Amendment”.
That turns the First Amendment on its head! “Congress shall make no law…”
The First Amendment trumps acts of Congress! It has no exception for the Espionage Act.
To remind everyone of what was at stake here, let’s revisit the Pentagon Papers Supreme Court decision, upholding real press freedom and the First Amendment (1971) – a precedent that the Assange lawyers were too timid to assert:
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.
In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: ‘The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.’ The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: ‘Congress shall make no law * * * abridging the freedom * * * of the press * * *.’ Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government.
[…]
The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial Governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes—great man and great Chief Justice that he was when the Court held a man could not be punished for attending a meeting run by Communists.
A concurring opinion was even more specific and compelling in addressing the Espionage Act:
While I join the opinion of the Court I believe it necessary to express my views more fully.
It should be noted at the outset that the First Amendment provides that ‘Congress shall make no law * * * abridging the freedom of speech, or of the press.’ That leaves, in my view, no room for governmental restraint on the press.
There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. § 793(e) provides that ‘(w)hoever having unauthorized possession of, access to, or control over any document, writing * * * or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates * * * the same to any person not entitled to receive it * * * (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both.’
The Government suggests that the word ‘communicates’ is broad enough to encompass publication.
There are eight sections in the chapter on espionage and censorship, §§ 792—799. In three of those eight ‘publish’ is specifically mentioned: § 794(b) applies to ‘Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates * * * (the disposition of armed forces).’
Section 797 applies to whoever ‘reproduces, publishes, sells, or gives away’ photographs of defense installations.
Section 798 relating to cryptography applies to whoever: ‘communicates, furnishes, transmits, or otherwise makes available * * * or publishes’ the described materials. (Emphasis added.)
Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.
[…] Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that:
‘Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.’ 64 Stat. 987.
Thus Congress has been faithful to the command of the First Amendment in this area.
