With British courts now having issued a formal order approving the extradition of Julian Assange, the debate sparked by Assange’s continuing legal saga will undoubtedly embrace the controversial question of whether Assange and others charged with unlawfully disclosing U.S. national security information should be afforded the opportunity to assert a “public interest” or “public accountability” defense; that is, to argue to a judge or jury that the public interest served by their disclosure of classified information warrants either full exoneration or the mitigation of any sentence imposed upon conviction.
The concerns of the press regarding the Assange prosecution
The indictment of Assange has struck close to home for many journalists. 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.” According to the Society of Professional Journalists, the concern is with “the effects this [the Assange prosecution] could have on journalists seeking to publish lawfully obtained classified information in the public interest.” In truth, however, at least with respect to journalists, “lawfully obtained classified information” is a non sequitur. Lawful access to classified information requires possessing both the requisite level of government security clearance and what is described as the “need to know” reflecting that access is needed for the holder to perform a prescribed task. This two-pronged justification required for access to any particular piece of classified information represents a standard that cannot be “lawfully” met by any uncleared journalist coming into possession of that information.
The opening paragraph of the Assange indictment illustrates why it is so difficult to draw a distinction between Assange and mainstream reporters: “To obtain information to release on the WikiLeaks website, ASSANGE recruited sources and predicated the success of WikiLeaks in part upon the recruitment of sources to (i) illegally circumvent legal safeguards on information, including classification restrictions and computer and network access restrictions; (ii) provide that illegally obtained information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing classified and hacked information to WikiLeaks for distribution to the public.”