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A nation must think before it acts.
On Thursday, May 23rd, a grand jury in the Eastern District of Virginia handed down a superseding indictment in Criminal No. 1:18-cr-111 (CMH), better known as U.S. v. Julian Paul Assange. The superseding indictment vastly expanded the charges against Assange to include multiple violations of the U.S. espionage statues. Given Assange’s conduct and avowed purpose of exposing U.S. national security information, the idea of charging him with espionage may not seem all that remarkable; but, the new indictment’s description of Assange’s inculpatory conduct reverberated throughout the Fourth Estate since, in many respects, the conduct alleged closely resembles exactly what mainstream U.S. news publications do to solicit, receive, and publish U.S. classified information.
The similarities struck too close to home for many journalists. Twitter was afire with adverse commentary from journalists, politicians, and activists. The American Civil Liberties Union noted: “For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information.” Gabe Rottman at the Reporters Committee for Freedom of the Press declared that the Justice Department “now seeks to punish the pure act of publication of newsworthy government secrets under the nation’s spying laws.” Former Alaska Senator Mike Gravel, a frequent apologist for Assange, called the indictment “a disgrace” and, on Twitter, insisted that Assange be pardoned. Not surprisingly, the notorious leaker, Edward Snowden, also weighed in. Snowden, whose journalistic bandwidth generally is limited to the character limits imposed by Twitter and who has never been confused with Joseph Pulitzer, breathlessly announced that the Justice Department “just declared war – not on Wikileaks, but on journalism itself. This case will decide the future of media.”
Affording such respect as may be due to these opinions, whether informed or not, the end of the Republic is not at hand; although, for journalists who have increasingly solicited, received, and published classified information with veritable impunity for decades, the indictment may signal that the government no longer considers the media immune from the consequences that the espionage statutes, at least on their face, contemplate for such conduct.
Certain considerations help frame the parameters of the issue here. First, the First Amendment assuredly provides a level of protection for what the press publishes. Second, that First Amendment protection is not, and never has been, absolute – the recognition in every jurisdiction of, for example, defamation and privacy claims, and of time, place, and manner restrictions where appropriate, confirms that there are circumstances where the First Amendment will not protect every form of publication. Although it is difficult to discern from some of the more heated commentary following the release of the new Assange indictment, in truth, the debate is not about whether the First Amendment prevents the government from prosecuting journalists who violate the espionage laws; rather, it is about how far the reach of the First Amendment extends to protect journalists who may engage in conduct that is arguably criminal when performed by non-journalists.
Accepting this characterization of the debate helps explain why the concerns of reporters are best encapsulated in the opening paragraph of the Assange indictment which alleges that “To obtain information to release on the WikiLeaks website, ASSANGE encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.” As many journalists in the mainstream media surely recognize, this is precisely what national security reporters and their publications often encourage government officials or contractors to do. Experienced journalists reporting on national security, intelligence, and defense-related matters will generally know, or strongly suspect, that the information they are pursuing or, put more accurately, that they are encouraging others with access to pursue, is classified. As Jack Goldsmith recently described, the news’ organizations encouragement of this almost clandestine pursuit of classified information “is underscored by the mechanisms they provide for sources to convey information securely and anonymously.” They also know that individuals who furnish them with such classified information are violating the law; hence, the extensive security precautions available for “sources” to transmit the information to the media. In much the same way as WikiLeaks, these mainstream media outlets encourage sources to provide them with “protected information” (as the Assange indictment describes it) and to obtain that information in whatever manner it can be secured and transmitted, regardless of legality. In fact, given the laws and regulations that govern the handling of classified information in the U.S. government, there is no approved means by which anyone handling such information who is not the classifying authority for that information is authorized to release such information to a third-party, including the media. Otherwise, there would have been no reason for Edward Snowden, for example, to have relied on the deceit and subterfuge in which he engaged to steal, and then disclose, some of the nation’s most sensitive secrets.
Another facet of the Assange indictment that surely resonates with reporters is the government’s emphasis of the WikiLeaks website’s acknowledgement that “WikiLeaks accepts classified, censored, or otherwise restricted material of political, diplomatic, or ethical significance.” These “standards” for acceptance are strikingly similar to those that publishers and editors of mainstream publications would apply in making their own decision regarding the publication of classified information. As former Washington Post editor Leonard Downie once acknowledged, “‘Highly classified’ doesn’t mean anything to me … The question is, is it important for the American public to know that its government is acting in its name in this particular way?” Indeed, the view is almost talismanic to any American journalist that the responsibility of a reporter is to publish information of interest to the public – even where that includes publishing government secrets.
This attitude has produced a dramatic change in journalistic norms over the past few decades, with mainstream media entities far more willing to publish national security secrets now that would not have been reported in the past. In his recent article on the Assange indictment, Jack Goldsmith has identified eight reasons to suggest why, and how, the norms have changed, and why journalists are more willing to publish more, and more types of, classified national security information.
I find little with which to disagree in Goldsmith’s analysis, but his last two points are, in my view, particularly relevant. Since Watergate, the end of the Vietnam War, and the 1970s investigations of U.S. intelligence activities, the media has grown increasingly aggressive in the face of decades of U.S. government passivity regarding the protection of classified national security information. A few years ago, a former counsel of The New York Times, David McGraw, essentially acknowledged that The Times’s hesitancy about publishing national security secrets had been lowered in the wake of the Snowden experience, which convinced its legal counsel “that there is no legal consequence from publishing leaks” of classified information.
Media organizations may harbor little concern that any adverse consequences attend the publication of the nation’s secrets but my prior experience at the National Security Agency tells me that, in the Intelligence Community, the concern about the deleterious effects of unauthorized disclosures on intelligence sources and methods has never abated. For many years, those concerns failed to outweigh the political and/or public relations concerns that invariably entered into the cost/benefit analysis of bringing a “leak” prosecution. As recently as 2013, for example, the Obama Administration reportedly rejected the idea of prosecuting Assange because of what has been reported as “The New York Times problem” – a short-hand description for the purported recognition that it was “impossible to prosecute Assange for publishing classified documents without also prosecuting The New York Times, the Washington Post, the Guardian and others for doing exactly the same thing.” This sort of political and public relations calculus was employed repeatedly to squelch Intelligence Community appeals for more aggressive steps to stop unauthorized disclosures.
This government lethargy, coupled with more people than ever having access to more classified information than ever in a digitized age, has created fertile ground for reporters searching for secrets. Combine these features with an emboldened new breed of journalist wedded to the concept that “it is legal and constitutional to publish secret documents even if the sources of those documents obtained them through illicit or even illegal means,” and you have a “leak” problem that has reached deluge proportions.
The original Assange indictment contained a single count alleging that Assange conspired with Chelsea Manning to crack the computer password affording Manning access to the secrets that were then transmitted to WikiLeaks. This charge presents no First Amendment difficulty, and was not perceived as such.
But the superseding indictment adds 17 counts under the espionage statute, 18 U.S.C. § 793. Most of these counts focus on Assange’s urging Manning to illegally leak information. Manning unquestionably committed a crime by leaking the information in violation of the duty that Manning had voluntarily assumed when going to work handling confidential government data. The government’s theory is that Assange himself committed a separate crime by essentially soliciting Manning’s unlawful activities.
This is an entirely plausible theory since soliciting a specific crime by another is itself criminal, and unprotected by the First Amendment. As the Supreme Court has declared, ”Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” and this applies to the solicitation of illegal transactions like those charged in the indictment. Each of these counts alleging Assange’s urging of Manning’s theft of confidential government data essentially employs an “aiding and abetting” theory that is a perfectly acceptable basis for imposing criminal liability. That said, Assange’s activities as described in these counts have been acknowledged by many journalists commenting on the Assange indictment as representing the same or similar forms of conduct in which many a national security reporter has engaged in urging a source to leak particular documents or types of information – whether they are national defense secrets, trade secrets, or confidential business data. It is this similarity to the activities of mainstream national security journalism that seems to have sent such a chill down the collective spines of national security reporters – and media advocates more generally.
Finally, and most ominously in the eyes of those same media advocates, counts 15-17 of the superseding indictment appear to charge Assange with criminal conduct based simply on having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury need not find that Assange had complicity in the initial leak and, according to critics, punishes the pure act of publication in violation of the First Amendment.
There is legal support for the idea that reporters cannot be liable for publishing information that is illegally obtained if they have no role in the illegal acquisition (even if they know of the illegal gathering but were not involved). The Supreme Court has said that “state action to punish the publication of truthful information seldom can satisfy constitutional standards,” and that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.” But it is that qualifying, “absent a need … of the highest order” on which the government seems to be relying to reject the otherwise general prohibition against punishing the act of publication where leaks of national defense information are involved. If so, the government appears to be pursuing what was left undecided in the Pentagon Papers case – in addressing sanctions for a publication of truthful information, is there a meaningful distinction between prior restraint and a post-publication penal sanction? A plethora of Supreme Court precedent repeatedly holds that only a state interest “of the highest order” can be asserted to sustain penalizing the publication of truthful information – the Assange case may now provide the first meaningful opportunity to receive judicial review at the highest level of if, or when, national security concerns satisfy that “highest order” of state interest in punishing, after the fact, the publication of truthful information.
One prior judicial decision does shed some light on the reaction of at least one federal district court to such post-publication sanction. In U.S. v. Rosen, the district court rejected a First Amendment challenge to the prosecution of two American Israel Public Affairs Committee (AIPAC) employees, who received illegally leaked information and then forwarded it to various journalists, saying:
[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of [national defense information]. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure.
This position cannot be sustained. Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, 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.
In reality, while the outcome in Rosen is informative, it is of limited precedential value because it did not yield an appellate decision on the substantive First Amendment question. If the Assange case proceeds, the outcome will almost certainly be pursued on appeal and produce a result far more likely to affect prosecutorial and media practices.
Whether and when the First Amendment permits the government to punish the sort of third-party, arms-length publication of national defense information charged in counts 15-17 of Assange’s superseding indictment is a complicated question, informed by relatively sparse judicial precedent. Over 80 years ago, in Near v. Minnesota, the Supreme Court opined that “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Similarly, does anyone sincerely doubt that the First Amendment would have precluded a government effort to punish, and even restrain, publication of the secrets of the Manhattan Project, or the details of the D-Day invasion during World War II? But, is that where the First Amendment draws the line on punishing publication of national security secrets – is it actually necessary that the nation be at war? These are the matters at issue as the Assange case proceeds and, just as an invocation of “national security” does not foreclose a First Amendment analysis, neither does the invocation of the First Amendment provide limitless protection to speech or news gathering activities – especially when those activities amount to soliciting another to commit a crime.
No provision in the Constitution generally, or more particularly, in the First Amendment appoints journalists as unelected ombudsmen for determining which national security secrets remain secret and which are compromised to the world. In fact, the authority to designate information as secret, and to dictate its handling, is committed to elected officials, and one can respect the First Amendment and its protections without being compelled to jettison the belief that pursuing criminal sanctions against a journalist who violates the law with respect to the protection of classified national security information poses no existential threat to press freedom.
There has been little with which I have agreed regarding the current Administration’s national security policies, but my experience with the harms resulting from unauthorized disclosures of national security information convinces me that a more aggressive approach is needed to protect the country’s secrets. If the seeds for such protection are sown in the decision to charge Assange under the espionage statutes, then perhaps, finally, the escalating cycle of debilitating unauthorized disclosures will be checked.
The Assange indictment certainly makes a point, but I suggest that the point made is that it is the media, not the government, that needs to recalibrate here. Julian Assange may, or may not, represent the best case to make in an effort to finally corral the hemorrhaging of classified national security information, but initiating that effort is long overdue. For too long now, national security journalists have trolled the corridors of government agencies soliciting the indignantly underpaid, the ideologue, or the malcontent to pilfer secrets they are sworn to protect, publish those secrets, and then expect that the government will do another damage assessment, bear the costs of the unauthorized disclosure in both dollars and lost intelligence, and move on. The First Amendment does not afford carte blanche to engage in such conduct, and the overwrought reaction to the Assange indictment from mainstream media sources squirming from the uncomfortable proximity that their own conduct shares with Assange’s reflects less that a constitutional line has been crossed and more that government torpidity has finally given way to action.
I would be the first to acknowledge that, for a variety of reasons, this is neither the Administration nor the Justice Department that I would have preferred take this long overdue stand, but in finally drawing a line on unauthorized disclosures and the conduct that fosters them, the message is far more important than the messenger.
I lack the prescience to predict where the Assange indictment will now lead, or whether the Justice Department’s actions in charging Assange represent an anomaly or a precedent with respect to the media’s news gathering activities. But, I do believe the time for taking a stand on unauthorized disclosures is long past and that the First Amendment may not represent nearly the shield to news gathering conduct in this area that many seem to think.
 The superseding indictment charges Assange with violating multiple parts of 18 U.S.C. § 793 by disclosing national defense information. Generally speaking, and without quoting the statute at full length here, § 793 makes it a crime to gather, transmit, lose or disclose national defense information.
 Brian Barrett, The Latest Julian Assange Indictment is an Assault on Press Freedom, wired.com, May 23, 2019.
 Gabe Rottman, The Assange Indictment Seeks to Punish Pure Publication, Lawfare, May 24, 2019.
 Jack Goldsmith, The U.S. Media is in the Crosshairs of the New Assange Indictment, Lawfare, May 24, 2019. As Goldsmith describes: “The New York Times’s menu includes SecureDrop, an “encrypted submission system set up by The Times [that] uses the Tor anonymity software to protect [the] identity, location and the information” of the person who sends it.”
The Washington Post has reported that journalists “wisely use encryption applications such as Signal to converse with, and receive information from, sources.” Margaret Sullivan, Traditional Journalists May Abandon WikiLeaks Assange at Their Own Peril, The Washington Post, April 11, 2019.
 Executive Order 13526, which establishes the current classification standards in the executive branch, provides that information is only classifiable if “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security.”
 Jack Goldsmith, The U.S. Media is in the Crosshairs of the New Assange Indictment, Lawfare, May 24, 2019.
 Id. Goldsmith ascribes this view to a former executive editor of The New York Times.
 This cynicism has produced an unprecedented level of animosity and distrust which, in turn, has spawned a media ethos that “reporting on the secret acts of government officials or powerful financial actors – including by publishing documents taken without authorization – is at the core of investigative journalism.” Glenn Greenwald, As the Obama Administration Concluded, Prosecution of Julian Assange for Publishing Documents Poses Grave Threats to Press Freedom, The Intercept, November 16, 2018. Inducing those with access to steal government secrets readily fits with this ethos.
 It has been argued that the government’s recourse to unauthorized disclosures is to pursue the original leaker; i.e., the government employee who provides the information to the journalist. But, of course, the press wants no part of any effort to unmask a reporter’s source, and routinely relies on the First Amendment to also justify a refusal to disclose the identity of sources – even in the face of a compulsory subpoena. Indeed, for years there have been calls from mainstream media entities for a federal “shield” law, similar to those found in many states, that would assure journalists that they will never have to reveal the identity of a source. No such effort has ever made it out of Congress; although, it is hard to know whether this is the result of good judgment or legislative inertia.
 Jack Goldsmith, The U.S. Media is in the Crosshairs of the New Assange Indictment, Lawfare, May 24, 2019.
 Glenn Greenwald, As the Obama Administration Concluded, Prosecution of Julian Assange for Publishing Documents Poses Grave Threats to Press Freedom, The Intercept, November 16, 2018.
 U.S. v. Williams, 553 U.S. 285 (2009).
 See, e.g., Gabe Rottman, The Assange Indictment Seeks to Punish Pure Publication, Lawfare, May 24, 2019.
 In Bartnicki v. Vopper, 532 U.S. 514 (2001), for example, a radio commentator played on the air and furnished to others the contents of an intercepted cell phone conversation, knowing that the call had been intercepted without the consent of the participants and that such activity violated both federal and Pennsylvania law. The Supreme Court concluded that the radio commentator could not be held liable for publication despite knowing that the contents of the call had been obtained illegally.
 Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978).
 New York Times v. U.S., 403 U.S. 713 (1971).
 U.S. v. Rosen, 445 F.Supp.2d 602 (E.D. Va. 2006).
 Near v. Minnesota, 283 U.S. 697 (1931).