Press freedom experts in Assange extradition hearing testify to dangers to journalism

Justice statue atop the Old Bailey criminal court

A statue of Lady Justice tops the Old Bailey courthouse where witnesses have testified via videoconference at Julian Assange's extradition trial.

James Cridland, CC BY 2.0

The extradition hearing in the trial of Wikileaks editor Julian Assange—the most dangerous front in the Trump administration's war on journalism—is now halfway complete, and the court has heard from two Freedom of the Press Foundation co-founders, executive director Trevor Timm and board member Daniel Ellsberg, as expert witnesses for the defense.

Timm spoke broadly to the press freedom implications of the prosecution. According to his testimony, “every single expert witness has some sort of fear that a prosecution of Assange will lead to the prosecution of many other reporters”—specifically the large group of reporters whose work might sometimes include secret documents. In other words, the prosecutors seek a precedent that would “criminalize every reporter who received a secret document whether they asked for it or not.”

The prosecuting attorney attempted to draw a distinction between Assange and other publishers of news reporting, claiming that Assange was “not a journalist.” But as Timm testified, the question of whether Assange was a “journalist” in the eyes of the US government was irrelevant. Assange was engaging in journalistic activity that countless other reporters engage in every day. The law or the constitution makes no distinction between a credentialed New York Times reporter and a volunteer blogger; they both have the same First Amendment rights, and they both will be able to be prosecuted for the same type of activities if this case goes forward.

At another point, the prosecutor referred to charges that Assange offered unlawful assistance to his source Chelsea Manning; Timm noted that “journalists have always argued they have a strong right to protect their sources,” and that Assange's behavior fits within that model. In general, the prosecutors sought to differentiate between Assange and less controversial publishers, but as Timm noted, “every important story published in US papers contains secret or classified information.” Since his testimony, Timm has written further about how the precedent the Trump administration seeks could have been used to effectively muzzle the groundbreaking Watergate reporting of Carl Bernstein and Bob Woodward, had it been available to Nixon.

The following week, Pentagon Papers whistleblower Daniel Ellsberg was called to the stand. Ellsberg faced Espionage Act charges for serving as the source of that historic story, and—as he has relayed in defense of whistleblowers since then—he was not allowed to provide testimony about his motivation or the public interest behind his actions.

Although Ellsberg's decision to release the Pentagon Papers is widely regarded as heroic today—and in his testimony, he noted that they contributed to ending the Vietnam War—he would very likely have faced conviction under those Espionage Act charges had the Nixon administration's illegal surveillance of him not been discovered during the trial. Ellsberg referred to that history to highlight a pattern in Espionage Act prosecutions: namely, that they have been used against whistleblowers acting to advance the public interest, which prevents them from raising that defense in trial.

Although many major U.S. news outlets commented on the dangerous significance of the charges against Assange, actual coverage of the trial in the American media has been sparse. At the New York Times, for example, where executive editor Dean Baquet called the indictment “a deeply troubling step toward giving the government greater control over what Americans are allowed to know,” the only coverage of the trial after its opening day focused on technical difficulties that have plagued the hearing and the limited streaming efforts.

Those technical difficulties have contributed to the hearing stretching out to a likely fifth week. And of course, this hearing covers only the extradition portion of the prosecution. Should the Trump administration's effort to extradite Assange be successful, he would likely face prosecution well after the November presidential election—potentially under a Department of Justice led by Attorney General selected by Joe Biden.

Whether and how such a prosecution would proceed is an open question. Under the Obama administration, where Biden served as Vice President, the Department of Justice considered but did not pursue similar charges, in part because of the First Amendment implications for news publishers.

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