Why extraditing Julian Assange to the US would be bad for media freedom

Too few know that for over a decade, the United States government has taken part in one of the gravest threats to freedom of the press in recent history. Washington has been seeking to extradite Julian Assange to the US to face trial under its Espionage Act for using WikiLeaks to publish documents that detail illegal US actions in Afghanistan, Iraq, Guantanamo Bay and elsewhere.

A court in London will decide Assange's fate in the coming month.

The documents were leaked to Assange in 2010 by Chelsea Manning (then known as Bradley Manning), a low-level intelligence analyst in Iraq.

If extradited to the US, Assange would be the first publisher prosecuted under the 1917 Espionage Act, setting a dangerous precedent for journalists and media outlets that publish stories based on leaked information.

Many of the most important and applauded press disclosures of the past several decades — from the Pentagon Papers to the Snowden archive to the revelation of unconstitutional War on Terror programs such as warrantless domestic NSA spying and CIA black sites — were made possible by journalists relying on sources that leaked illegally-acquired documents for publication, the very conduct that the Assange indictment seeks to make a felony.

Assange launched WikiLeaks in 2006 to publish leaked information exposing corporate and government wrongdoing. His "ideological theory" was that "the powerful are hoarding information and keeping it from the people," and he wanted to set it free.

As he put it, "The goal is justice, the method is transparency." As a law professor, I repeatedly point out this vital link between truth and justice to my students and the general public.

After receiving a motherlode of war logs and 251,000 confidential diplomatic cables from Chelsea Manning in 2010 that exposed rampant international corruption, diplomatic scandals and abusive spy activities, WikiLeaks, in partnership with The New York Times, the Guardian, Le Monde, El Pais and Der Spiegel published a series of headline-grabbing revelations.

These outlets published many of the same secret documents that form the basis of the criminal case against Assange, but did not face the same consequences. The NYT reported that the documents told "the unvarnished story of how the government makes its biggest decisions, the decisions that cost the country most heavily in lives and money."

Fearing political persecution, Assange sought and was granted asylum in the Ecuadorian Embassy in London in August 2012. He was expelled from the embassy in April 2019 and imprisoned in London, where he has remained pending the outcome of US efforts to extradite him to stand trial.

In May 2019, the Department of Justice (DOJ) under US President Donald Trump unsealed an indictment against Assange, eventually charging him with 17 counts under the Espionage Act of 1917 and one count of computer hacking.

With these charges, the Trump administration took a giant and unprecedented step toward the criminalisation of journalism that no previous administration, no matter how much they opposed certain freedoms of the press, had been willing to take.

For instance, after the 2010 publications of leaked documents made headlines around the globe, US President Barack Obama's administration was strongly motivated to seek indictments against WikiLeaks and Assange.

The Justice Department convened a grand jury in 2011 to search for wrongdoing by Wikileaks, an investigation that lasted for years. Although officials used the Espionage Act to prosecute journalists' sources who had leaked classified information, they never went after WikiLeaks simply for publishing such information.

The Obama administration declined to indict Assange unless they could find proof that he did more than collaborate with his source, Chelsea Manning, in the ordinary ways that journalists routinely work with their sources.

After a lot of digging and hand-wringing, they found no evidence that Assange wrongfully coached Manning on how to remove those documents.

Accordingly, investigators concluded that there was no way to prosecute WikiLeaks or Assange for the 2010 publications without also prosecuting the New York Times and the Guardian for publishing the same documents. Put differently, Obama administration officials concluded that prosecuting WikiLeaks or Assange would criminalise journalism itself.

On Jan. 4, 2021, British criminal court judge Vanessa Baraister denied the US government’s request to extradite Assange.

But instead of protecting press freedom in the spirit of the Obama administration by simply accepting that decision and distancing itself from Trump’s novel and dangerous indictment, US President Joe Biden's DOJ appealed that ruling and convinced the British higher courts to reverse Judge Baraister, leading to the latest round of hearings in London that are Assange’s last chance at freedom.

One argument offered by both the Trump administration and many others who support the extradition and prosecution of Assange is that he is not a journalist and thus deserves no free press protections. By this logic, locking up Assange for publishing documents poses no threat to "real journalists" because he's not a "real" one, so press freedoms don’t apply to him.

But this attempted distinction between "real journalists" and "non-journalists" displays ignorance of the First Amendment.

In a 1978 Supreme Court opinion discussing the vital importance of the constitutional free press guarantee, Chief Justice Warren Burger wrote: "In short, the First Amendment does not 'belong' to any definable category of persons or entities: It belongs to all who exercise its freedoms." In other words, a "journalist" is anyone who informs the public about newsworthy events.

Darnella Frazier, for instance, who was 17 years old when she recorded George Floyd’s murder in Minneapolis, was given a special citation by the Pulitzer Prize board for her video that helped launch a global movement to protest racial injustice.

The Pulitzer Prize, of course, is an award for, among other things, achievements in newspaper, magazine and online journalism.

Ultimately, if the government can decide who to recognise as a "journalist," it can simply refuse to licence or credential its critics and thus escape accountability for what it does behind a wall of secrecy.

In the end, the core question raised by Assange’s looming extradition and prosecution is: what is the graver wrong: extrajudicial killings, illegal black sites and abusive domestic spying, or dragging such wrongdoing out of the darkness and into the light by publishing illegally leaked revelations about it?