Why The Assange Arrest Isn’t An Attack On The Free Press
Wikileaks Founder Julian Assange’s alleged crimes are not protected by the First Amendment, and that’s an important distinction.
After nearly seven years of hiding out in the Ecuadorian embassy in London, WikiLeaks founder Julian Assange has been expelled from the embassy, had his asylum revoked, and is now in the custody of British authorities at the request of the United States to answer for crimes he allegedly helped commit with Chelsea Manning.
Specifically, Assange is charged with accessing a computer “without authorization” to obtain information that “could be used to the injury of the United States and the advantage of any foreign nation[.]” The Department of Justice (DOJ) further explains that the purpose and object of the conspiracy was “to facilitate Manning’s acquisition and transmission of classified information” so WikiLeaks could then publish it.
Listening to many in the American media, one would believe that Assange has been charged with simply publishing the classified data, but that’s not how the indictment reads.
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So, what did Assange allegedly do?
While the DOJ mentions the publishing of classified material, it is only to explain that publishing was the ultimate goal. WikiLeaks has published and disseminated thousands of classified documents, but neither WikiLeaks nor Assange have been charged with merely publishing classified data. Assange crossed the line by actively aiding Manning in her attempt to crack the password of a Department of Defense (DoD) computer to access the files.
It may seem like splitting hairs, but it is truly an important distinction.
Thanks in large part to the presidency of Donald Trump, we are all learning an awful lot about conspiracy law. All that’s required for a conspiracy charge is an agreement between two or more persons to commit an unlawful act by unlawful means and an overt act by one of the individuals in furtherance of the conspiracy. Put more simply, if at least two people sit down and discuss a crime, how to commit that crime, and then one of those people does something to set that plan into motion, you’ve now crossed into conspiracy.
According to the indictment, Assange and Manning discussed at length how they could circumvent the DoD’s classified systems by several different means beyond my technical comprehension. And then by magic or little gnomes or however computers work, Manning was able to get those documents, which she handed over to WikiLeaks for publication.
They discussed a crime (the hacking). They discussed how they would commit the crime (the magical gnomes or whatever they did). And then they committed an act in furtherance of the crime. Put it together and what have you got? Bippity boppity conspiracy.
And just a note: to be charged and prosecuted with conspiracy, they didn’t even have to be successful. Their success only makes the charge easier to prosecute because everyone can see the fruits of their criminal labor.
So how is this different from what journalists do?
It’s important to also take note of what Assange has not been charged with. He has not been charged with simply publishing the classified information and has not even been charged with anything involving the 2016 presidential election.
One could argue that even what Assange did during the election with John Podesta’s and the DNC’s hacked emails is protected by the First Amendment as an act of the free press, so long as he did not aid in the hacking, solicit the information, and wasn’t knowingly acting as a conduit for a foreign government’s cyberwarfare against the United States.
I mean, he was definitely doing those things but if he weren’t, it’s an argument one could make.
Simply receiving the classified documents and publishing them likely would — and should — be covered under the First Amendment. But Assange crossed the line when he actively aided Manning in hacking the computer in order to retrieve the files.
Do you have a stupid analogy to drive the point home?
I do, thank you for asking.
Imagine, if you will, Maggie Haberman of The New York Times in camouflage from head to toe. She’s got green, brown, and black paint crisscrossed over her face. She’s crouched in a bush, brow furrowed, whispering to herself.
Finally, the door swings open. She makes a break for it.
Haberman runs towards the slowly-closing doors of the Pentagon, in slow motion as “Hero” by Enrique Iglesias plays in the background. She’s gonna get in there before that door closes and she’s gonna get all the secrets. All of them.
She’s tackled by a guard she didn’t see. She hits the ground, her mission is a failure.
Or was it?
In the chaos, no one noticed Glenn Thrush in a tree — that’s right, the band is back together for one last journalisming (?) — now hitting the ground, tucking and rolling, he pops up and heads for the door. While everyone is distracted with Maggie, Glenn slips in the door as it’s about to close.
He loses his fedora on the other side, but just as the door is about to shut Glenn reaches back out and grabs his hat in the nick of time. “Hero” is replaced by the Indiana Jones theme as Glenn steals all the secrets and publishes them the next day in the New York Times.
Clearly, Glenn committed a crime. He stole all the secrets. They weren’t his. Maggie, on the other hand, just helped plan it out. She didn’t actually steal anything. Is she also guilty in this very realistic scenario?
Of course, she is. No one would argue otherwise. So why are we pretending that Assange isn’t just as guilty as Manning? Would we claim that Maggie is covered by the First Amendment? Would we all be very worried that her prosecution will have a chilling effect on free speech or the rights of the free press? Again, no, I don’t think anyone would try that. Even Glenn Greenwald might back away slowly from that one and he’s never heard a contrarian point of view he didn’t love.
So what’s the ultimate point here?
The point is there’s a huge difference in a journalist receiving information — even classified information — from a source and publishing it for the public good. When Maggie receives classified information, she goes through a balancing test to determine if the public’s need to know overcomes the damaging effects of making the information public.
Assange does no such thing. In fact, it’s alleged in the indictment that he wanted access to this information and to publish it because it was harmful to the United States.
His intent was to harm, not to inform. His motives were not based in some sense of journalistic integrity, he instead uses that veil of protection when it suits his needs so he may go doing as he damn well pleases.
Well, it’s been a long time coming, but it finally caught up to him.
And to any journalist worried about the effect his prosecution may have on you, I would advise that you avoid helping anyone hack the DoD. Other than that, you should all be fine.
Oh, don’t bumrush the Pentagon, either.
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