Sorry, Time, Assange is a criminal, not a journalist
Over at Time Magazine, Michael Scherer takes issue with my column charging that WikiLeaks is a criminal enterprise and that its founder, Julian Assange, should be indicted for violations of the Espionage Act. Scherer writes:
To be clear, Assange’s crime, according to Thiessen, is intentionally receiving and republishing classified information, something that is done with some regularity in the United States by respectable and responsible reporters working for top flight news organizations. To adopt Thiessen's view, one would effectively have to reject the Supreme Court's opinion in New York Times Co. v. United States, the so-called Pentagon Papers case from 1971.
Scherer is grossly misinformed both as to the law and what constitutes “respectable and responsible journalism.”
First, the law. In 1971, the Supreme Court rejected the government’s efforts to suppress publication of the Pentagon Papers, but it explicitly stated that the decision to go ahead with publication of the classified materials could result in criminal prosecution. In a concurring opinion, Justice White, joined by Justice Stewart, wrote:
…terminating the ban on publication … does not mean that the law either requires or invites newspapers or others to publish them, or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment, but failure by the government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.
Justices White and Stewart further noted that:
The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States, as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.… Section 793(e) makes it a criminal act for any unauthorized possessor of a document "relating to the national defense" either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because preexisting law provided no penalty for the unauthorized possessor unless demand for the documents was made.
Assange could be indicted and prosecuted under these and other provisions of U.S. law. Indeed, the Obama administration is apparently considering indicting Assange, or may already have. The New York Times reported Friday:
A person familiar with the investigation has said that Justice Department lawyers are exploring whether Mr. Assange and WikiLeaks could be charged with inducing, or conspiring in, violations of the Espionage Act, a 1917 law that prohibits the unauthorized disclosure of national security information.
As to Scherer’s claim that Assange is doing nothing different from what is regularly done by “respectable and responsible reporters working for top-flight news organizations,” I suspect top-flight news organizations (including The Post and Time Magazine) would likely take issue with that statement. Certainly the news organizations that initially reported on Assange’s revelations do.
According to the Columbia Journalism Review, these news organizations recoiled when Assange referred to them as WikiLeaks’ “media partners.” New York Times reporter Eric Schmitt told CJR:
“I’ve seen Julian Assange in the last couple of days kind of flouncing around talking about this collaboration like the four of us were working all this together,” says Schmitt. “But we were not in any kind of partnership or collaboration with him. This was a source relationship. He’s making it sound like this was some sort of journalistic enterprise between WikiLeaks, The New York Times, The Guardian, and Der Spiegel, and that’s not what it was.”
Nick Davies of the Guardian agreed:
“There’s a really interesting collaboration between the three news organizations. But Julian, he’s a source,” says Davies.
Unlike reputable news organizations, Assange did not give the U.S. government an opportunity to review the classified information WikiLeaks was planning to release so they could raise national security objections (such as, for example, the fact that they contained the names of Afghan informants who are now being hunted and killed by the Taliban as a result of his disclosures). Providing such an opportunity for review is common journalistic practice. Indeed, when this newspaper recently put up its “Top Secret America” website, built entirely from publicly-available materials, it still allowed the U.S. government to review the site -- and even adjusted it to accommodate national security concerns. As The Post’s ombudsman, Andrew Alexander, wrote:
The Post allowed government officials to see the Web site in advance and express concerns. The editor's note said, “One government body objected to certain data points on the site and explained why; we removed those items.” … Out of what [Post Executive Editor Marcus Brauchli] termed a “public safety” precaution, The Post curbed the capabilities of its interactive Web site. For instance, the Google-powered mapping function limits the degree to which readers can pinpoint many locations.
Again, The Post went to these lengths for a website built entirely from open source information.
By contrast, Assange simply posted 76,000 un-redacted secret documents on the web, without giving the government a chance to review the documents. He even chided the New York Times for consulting with national security officials before publishing its news stories on the revelations, declaring:
We don’t see, in the case of a story where an organization has engaged in some kind of abusive conduct and that story is being revealed, that it has a right to know the story before the public, a right to know the story before the victims, because we know that what happens in practice is that that is just extra lead time to spin the story.
The Times found Assange’s approach so dangerous and irresponsible that the paper pointedly refused to link to the WikiLeaks site. In a statement to the Daily Beast, Times editor Bill Keller said this was intentional:
So let’s not pretend that Assange is a journalist who is simply doing what other responsible journalists have done for years. Even the news organizations reporting on his information say his conduct is highly irresponsible and do not consider him a fellow journalist.
The Times -- in a note to readers explaining how we handled the secret archive -- made a point of saying that we did not link to the material posted by WikiLeaks. Since we normally do link to source data that we have used in our stories, we thought readers were entitled to know that the absence of a link was intentional, not some oversight, and to know the reason for it. In our own publication, in print and on our Web site, we were careful to remove anything that could put lives at risk. We could not be sure that the trove posted on WikiLeaks, even with some 15,000 documents held back, would not endanger lives. And, in fact, as we will be reporting in tomorrow's paper, our subsequent search of the material posted on WikiLeaks found many names of Afghan informants who could now be targets of reprisals by the insurgents…. His decision to release the data to everyone… had potential consequences that I think anyone, regardless of how he views the war, would find regrettable.
By the standards of U.S. law -- including under the Supreme Court decision in the Pentagon Papers case -- he should be considered a criminal. He is in unlawful possession of classified information. He has released tens of thousands of documents, which the Taliban are using at this moment to target and execute Afghans who cooperated with U.S. and NATO forces. And he is threatening to release many thousands more, which could put more American, Afghan and allied lives at risk. His actions are a clear violation of U.S. law. He should face justice for these crimes.
| August 4, 2010; 12:38 PM ET
Categories: Thiessen | Tags: Marc Thiessen
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