Don’t Weep for the Extradition of Julian Assange
if journalists deserve special protection, not everyone warrants the label
Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (especially its business) is evolving, and the challenges it faces.
One of the bigger journalism stories of 2022 could well be the extradition to the US of Julian Assange of WikiLeaks to face federal charges, including of computer hacking into classified records. If the British courts finally agree to extradite Assange, as now appears likely, you will hear a considerable outcry that this is a dangerous attack on journalism in this country. I don’t agree, and I want to tell you why.
Broadly, there are two reasons I am not greatly concerned about this as a precedent. First is that the core of what Assange is accused of doing is something journalists are both legally and ethically forbidden from doing—in this case encouraging Chelsea Manning to remove additional records from Pentagon systems (beyond those she had initially provided to WikiLeaks) and trying to help Manning crack a password toward this end, as well as using misappropriated login credentials to break into various other computer systems. Second, I don’t see the prosecution of Assange as an attack on journalists because I simply don’t see Assange as a journalist, and don’t think you should either.
Every newsroom lawyer of any sophistication will tell you that, under the substantial protections of the Constitution, and particularly a Supreme Court case called Bartnicki v. Vopper, journalists must walk a fine but nevertheless clear line with leakers. The reporters can both legally and ethically receive a leak—very much including the fruits of an illegal hack—but they cannot directly themselves engage in illegal behavior (such as by hacking themselves) or solicit others to do so, either initially, or by, for instance, requesting a second hack. Most people I respect believe that journalistic ethics compel the same result.
Assange is alleged to have crossed this legal line in an indictment originally brought almost four years ago by the Trump Justice Department (and amended in 2019 and 2020), but now being prosecuted by Biden attorney general Merrick Garland. (Garland has, in other actions, proven far more sympathetic to the critical role and legal standing of the press than predecessors like William Barr.) While many of the charges in the latest version of the indictment are way too broad and should eventually be dismissed, some are not, and the narrowest of them could support Assange’s extradition and perhaps his eventual conviction.
The limits of our privileges
Even Assange’s defenders should not, I think, be asserting that journalists have a special right to solicit or actively facilitate the commission of crimes by disgruntled people in large organizations. What in a constitutional guarantee of “freedom of… the press” would give us such a right? Members of Congress can’t do this to vindicate their oversight powers, nor can spiritual counselors in service of religious liberty. Why should we?
Sure, some leakers turn out to be whistleblowers, revealing activity that either is or should itself be illegal. And those whistleblowers may deserve protection, as a means of guarding against corruption and power run amok. Some, like-- in my view-- Edward Snowden, may deserve pardons after the fact. But there is a societal process for deciding such matters, and it is not reserved to journalists. We alone get to decide what is newsworthy in the publications we control, and that is responsibility enough.
Beyond this, I just don’t think Julian Assange is a journalist.
I spent much of an evening in April 2010 with Assange, talking at a journalism conference in California (as it turns out, just at the time of his collaboration with Manning). I found him articulate, glib, but almost consumed with a fierce hatred of the United States and substantial contempt for much of journalism.
I am not the only person to detect these traits in him. The two top editors who most closely engaged with him, Bill Keller of the New York Times and Alan Rusbridger of the Guardian, did not come away fans. Rusbridger, even in opposing Assange’s prosecution, calls him an “information anarchist” and suggests he is a “useful idiot” for Putin. (As spelled out below, I think the Putin part may well be worse than that.)
Some of the best reporters and editors, of course, can be notoriously difficult. But Assange went beyond that, as Keller recounts, threatening journalists, perhaps hacking into their own computers, telling others he was manipulating his “partners.” The Times regarded him as a source, not a colleague or partner, and rightly so.
Rusbridger, on the other hand, concludes,
Assange is a shape-shifter — part publisher, part impresario, part source, part activist, part anarchist, part whistleblower, part nihilist. And that new 21st-century creature: part journalist.
But under a system that does afford some special protection to journalists, we need to be careful not to let just anyone claim that protection for all of their activities simply because some may appear “journalistic.”
In the Cold War, we now know for certain, the Soviet Union often used journalism as a cover for espionage; so unfortunately, on some occasions, did our own government. It would make no sense to have a set of rules under which a KGB agent could claim immunity from prosecution for espionage on the grounds that they were really, at moments of their convenience, engaged in journalism.
I can’t, in the end, distinguish the case of Assange from this not-so-hypothetical. Assange has publicly boasted of delivering Snowden into the hands of Russia, where he remains effectively a prisoner, and the circumstances of Snowden’s final movements in 2013 seem to support the claim. In 2016, it is now fairly clear, Assange was a key link between the Trump campaign and Russia, even if that conduct was itself not provably criminal.
Especially on this January 6, as regular readers of this column know, I agree with those who say that democracy is currently under threat—and with it, journalism. I care deeply about protecting them both. When it comes to Julian Assange, I think we confront not one of those under the threat, but one helping those who pose it.
Assange is not the limit of this problem. Similar questions also arise, in perhaps an even more complicated manner, with James O’Keefe’s Project Veritas, which insists it is a journalism organization, although O’Keefe once referred to it as the “next great intelligence agency.” Contrary to nearly everyone’s understanding of journalism ethics, Project Veritas affiliates have lied during “reporting,” reportedly used dating apps to try to ensnare federal officials and reporters, apparently attempted to sting reporters with false stories and paid someone they later acknowledged not to be the “rightful owner” for Ashley Biden’s diary. If you think Assange deserves protection as a journalist, what about O’Keefe? If you think O’Keefe doesn’t, what about Assange?
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Super analysis and great piece- thanks!
Maybe if mainstream Journalists remembered the following. The Fourth Estate: The notion that the Press is the fourth estate rests on the idea that the media’s function is to act as a guardian of the public interest and as a watchdog on the activities of government.
At the moment we all feel the words "public interest" and government are reversed, or at a minimum public interest is more elite focused and not so much public.
Assange a Journalist; maybe not, but doing work that needs to be done certainly Yes.