If Britain’s High Court decides to deny WikiLeaks founder Julian Assange a new appeal and allows his extradition to the United States to proceed, Mr. Assange would face prosecution for collecting and publishing documents related to the U.S. wars in Afghanistan and Iraq, among other sensitive subjects. Experts on the First Amendment and digital publishing have told The Epoch Times that journalists around the world may find themselves operating with far less freedom as a result.
Last week, the court heard two days of arguments from U.S. government lawyers and Mr. Assange’s defense team before declaring that it would not issue a final judgment right away.
Mr. Assange previously lived in Sweden before his arrest by British authorities at the Ecuadorian Embassy in London in 2019. Previous attempts to extradite him to the United States fell apart when a British judge determined that he posed too high a suicide risk.
Here the matter stood while two senior judges in London weighed the arguments for and against extradition that would force him to stand trial in a U.S. federal court. Mr. Assange, who has been confined to London’s high-security Belmarsh Prison, could not take part in the proceedings because he is severely ill. He could remain in the United Kingdom for many more months or could face extradition in the next few weeks.
Espionage Act Misuse?
David Greene, civil liberties director and a senior staff attorney at the Electronic Frontier Foundation, a San Francisco-based nonprofit organization that monitors cases involving freedom of expression in the digital space, said: “It will be bad for the practice of journalism if the Espionage Act is applied to Assange based on the allegations in the indictment. And that is because there has been a largely unspoken agreement between the executive branch and the journalistic practice that the Espionage Act would not be applied to journalistic activities.”While conceding that no language in the Espionage Act specifically exempts the work of journalists from prosecution, Mr. Greene said that reporters have operated under a broadly shared understanding that gathering and publishing information deemed to be in the public interest is not spying.
Sources who provide information to journalists can be liable if they stole, hacked, used bribes, or otherwise acquired it illegally. Journalists need to have obtained information legally, Mr. Greene explained. The issue that should be at the heart of the judges’ deliberations is whether Mr. Assange came by that information legally, he said.
In Mr. Greene’s reading of the Espionage Act allegations in the complaint, prosecutors seem to be stretching the act’s traditional boundaries to encompass activities that are fundamental to the work of reporters and journalists. Namely, communicating with sources or prospective sources, and indicating to them a willingness to hear what they might have to disclose.
“They’re pursuing Assange for indicating a general receptivity: if you have information, we’d love to see it. Or telling a specific source, ‘Yes, that is something I am interested in.’ So, if the Espionage Act were applied to those types of very traditional journalistic activities, then that becomes really concerning. What we fear is the government arguing, as they seem to be doing in the charging document, that those types of activities can be illegal,” Mr. Greene said.
While he has little faith in the court’s willingness to block the extradition, Mr. Greene said the severe state of the WikiLeaks founder’s health may end up overriding other considerations. Other organizations that monitor the state of free speech in different jurisdictions concur with Mr. Greene about the significance of the potential misuse of the Espionage Act.
Aaron Terr, director of public advocacy at The Foundation for Individual Rights and Expression, a Philadelphia-based free speech and legal defense organization, told The Epoch Times that plans to convict Mr. Assange are on a “collision course” with the First Amendment.
Legitimate Journalism or Cyber Criminality?
Jeffrey McCall, a communications professor at DePauw University, Greencastle, Indiana, feels a ruling in Mr. Assange’s favor could potentially embolden bad actors.“The information that Assange helped to divulge was certainly in the public interest, which good journalists should be trying to provide. But Assange is being charged with computer fraud and espionage activities, which the First Amendment presumably would not protect in that these are violations of criminal statutes,” Mr. McCall said.
Extraditing Mr. Assange and making him stand trial could well have the chilling effect that experts have warned about. However, given the novelty of the case, certain legal issues at its heart remain unresolved. Consequently, the case and others like it will continue to be a gray area until a U.S. federal court properly litigates the issues and a judge issues an exhaustive ruling, he explained.
“The problem here is that the courts, and probably eventually the Supreme Court, can’t ever provide an interpretation of the situation unless Assange actually goes on trial in the United States. The nation really needs the federal courts to provide guidance as to whether this Assange case constitutes legitimate journalism or is cyber criminality and a national security violation,” Mr. McCall said.
The perception of many observers that the case falls into the former category—constitutionally protected journalism—will mean little until codified in a judicial opinion.
A ruling against Mr. Assange will not help the climate for journalistic freedom. But in the event of exoneration in a U.S. court, Mr. McCall sees further potential complications. Such a ruling could even play into the hands of America’s enemies, he warns.
“Should the U.S. court rule for Assange, the door could be open for the release of all kinds of classified information under the umbrella of ‘common journalism,’ possibly conducted by miscreants seeking to do harm,” Mr. McCall said.
He holds out hope that a U.S. court will have the opportunity to apply due process and give its complexities due consideration.
Support for Assange
Political strategist John Feehery, a former press secretary to then-House Speaker Dennis J. Hastert (R-Ill.), described Assange’s case as a “compelling” one for the populist wings of both major U.S. political parties. Left-leaning Democrats support Assange for having brought to light facts that powerful interests would have liked to stay secret and confidential, but Assange also enjoys support among the libertarian wings of the GOP and among those who find an adversarial press one of the last bastions against a federal behemoth no longer operating within constitutional bounds.“I am not sure how it cuts viscerally with the vast majority of voters, because they have a lot of other concerns and probably haven’t spent much time thinking about it. But Assange has a lot of support among libertarians, and they have a lot of sway inside the GOP,” Mr. Feehery told The Epoch Times.
“I’m surprised that the press hasn’t supported Assange more, but that goes to show how they have become captive to our intelligence agencies,” he added.
Keith Naughton, the principal of Silent Majority Strategies, a Germantown, Maryland-based consultancy, does not entirely agree. Mr. Naughton sees limited support for Assange in either major party.
“Between Democrats now embracing the national security state and a portion of Republicans who see Assange as a stereotypical anti-American, I don’t think he’s going to get much sympathy. If he does go to trial, the mainstream media will be muted as they are in full Biden protection mode,” Mr. Naughton told The Epoch Times.
Paradoxically, subjecting Mr. Assange to a trial could stir both sympathy and fierce hostility among former President Donald Trump’s base as the 2024 election race ramps up. While some of President’s Trump supporters may despise a figure they see as anti-American, they could also become irritated if the U.S. court system faces criticism from the UK and Europe for putting Mr. Assange on trial, he explained.
“Trump’s base is very much anti-elite. Being lectured by the European Union human rights crowd would set off Trump’s base. Any international condemnation for trying Assange would result in a response by most ‘America First’ people,” Mr. Naughton said.
The Department of Justice did not immediately reply to a request for comment.
