U.S. to Assange: All Journalists Are Now Liable to Prosecution Under the 1917 Espionage Act

Lady Emma Arbuthnot, the supervising judge in the Julian Assange extradition hearing. Her husband is Lord James Arbuthnot, whose "activities ... at the defense contractor Thales and British intelligence were the subject of thousands of WikiLeaks exposures."

by Thomas Neuburger

In a breathtaking reversal, the U.S. position in the extradition hearing of Julian Assange has changed. Its previous position had been that they can extradite Assange because Assange is not a journalist and therefore his acts aren't protected the way journalists' acts are protected.

That position was failing in the court, so after a short (Covid-related) break, the U.S. rolled out a new assertion. All journalists are liable to prosecution under the 2017 Espionage Act if they publish classified information.

The reversal occurred on Day 10 of the extradition hearing. Here's the summary from Craig Murray, who is attending and reporting on the trial:

The gloves were off on Tuesday as the US Government explicitly argued that all journalists are liable to prosecution under the Espionage Act (1917) for publishing classified information, citing the Rosen case. Counsel for the US government also argued that the famous Pentagon Papers supreme court judgement on the New York Times only referred to pre-publication injunction and specifically did not preclude prosecution under the Espionage Act. The US Government even surmised in court that such an Espionage Act prosecution of the New York Times may have been successful.

The Rosen case involved the prosecution of two lobbyists with no connection to the government for espionage under the Act for revealing classified information. From the Kansas Law Review (emphasis added):

In dicta, the Supreme Court has suggested that such a prosecution would be constitutional,5 and building on that premise, in August 2006, the Eastern District of Virginia found in United States v. Rosen6 that prosecuting two lobbyists under the Act did not violate the lobbyists' right of free speech.7 While prosecuting a lobbyist is obviously not the same as prosecuting a newspaper or a television station, Rosen is nevertheless significant because it demonstrates the courts' willingness to enforce the Act against "those not in a position of trust with the government."8  In prior cases, such as United States v. Morison,9 the government had only targeted individuals it had authorized to access the information and who subsequently leaked it.'10 The defendant in Morison, for example, worked at the Naval Intelligence Support Center and had a security clearance of "Top Secret-Sensitive Compartmented Information."'11 The lobbyists in Rosen, in contrast, had no clearance and arguably no responsibility to the government to keep the information private.12

Nevertheless, the court in Rosen concluded that "both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense."'13 The "relevant precedent" to which the court referred was New York Times Co. v. United States,'14 the "Pentagon Papers" case, and specifically the dicta therein that specified the Act could impose liability on media outlets for publishing national security-related information.'15

This new government assertion leads to several conclusions.

First, as my headline suggests, that the government has issued a public threat to prosecute journalists for collecting and publishing classified information. Rosen specifically mentions the publication of the Pentagon Papers as an example of an act it could prosecute — just the kind of defiance that most citizens expect from journalists.

Second, that Julian Assange will be extradited. Immunizing journalists and then asserting that Assange wasn't one, was a loser for the U.S. position. Its new position will, I predict, be a winner.

The hearing judge, Vanessa Baraister has already shown herself to be a kind of "hanging judge" — when she asked Assange if he had understood events in court, he replied, “Not really. I can’t think properly. This superpower had 10 years to prepare for this case and I can’t access my writings" (see also here, or in fact, anywhere in Murray's detailed description of the proceedings).

According to murray, Judge (actually Magistrate) Baraitser is "but a puppet, being supervised by Chief Magistrate Lady Arbuthnot, a woman so enmeshed in the defense and security service establishment I can conceive of no way in which her involvement in this case could be more corrupt" and who has a massive conflict of interest of her own. It's reasonable to conclude that there's no way this extradition will be thwarted.

When he reaches U.S. shores, Assange will face "up to 175 years in prison [on] hacking charges and 17 counts of violating the World War I-era Espionage Act." If indicted, of course, he'll surely be convicted and sentenced, unless he dies of neglect first. His conviction and/or death will be sweet revenge for the military-industrial state he has stripped naked — and for a certain 2016 presidential loser who reportedly wanted him "droned."

Finally, we should conclude that the U.S. press doesn't care if this establishes a precedent unfavorable to their business, which offers to be publication of the news. We know this because none of them is covering this story in any detail or with any urgency — none of them.

As Murray says:

The US government is now saying, completely explicitly, in court, those reporters could and should have gone to jail and that is how we will act in future. The Washington Post, the New York Times, and all the “great liberal media” of the USA are not in court to hear it and do not report it, because of their active complicity in the “othering” of Julian Assange as something sub-human whose fate can be ignored.

He then asks, "Are they really so stupid as not to understand that they are next?" His answer is Yes, they really are so stupid.

My answer is No, they're not stupid at all. Because they know they're specifically not next.

The U.S. press understand the situation completely that this new application of the Espionage Act is a law "made for thee and not for me" — thee being "enemies of the state" like Assange and others who publish unapproved damaging leaks; and me being the Establishment press, the state's best friend and collaborator, who will make certain to stay "in bounds" now that they know where the new boundaries are drawn.

Their lack of concern or fear, in fact, signals their full intention to comply and collaborate, just they have (mostly) done in the past. The state has declared New Rules. The press, by its silence, accepts them.

Welcome to the next phase of the actual descent to autocracy, the one not related at all to which president holds power.