When the Justice Department unsealed a March 2018 indictment of Wikileaks founder Julian Assange last month, there was a reasonable case to be made that his prosecution would avoid setting a dangerous precedent against press freedom.
The original indictment charged Assange with computer hacking on the novel theory that he coached Private Chelsea Manning on how to crack passwords on Department of Defense computers that stored the reams of secret diplomatic cables Wikileaks eventually published. Journalists routinely encourage sources to encrypt their texts and phone calls. But hacking is not reporting. The government could win that case against Assange without criminalizing the receipt of classified information.
On Thursday the Justice Department issued a superseding indictment that would do just that. As such, it represents a profound danger to any reporter who has published state secrets.
Under the new indictment, Assange — an Australian national — is charged with 17 new counts of violating the 1917 Espionage Act. That law makes it illegal for U.S. citizens to mishandle national defense information. “Assange, WikiLeaks affiliates and Manning shared the common objective to subvert lawful restrictions on classified information,” the indictment reads, “and to publicly disseminate it.”
There is a fair debate to be had over whether Assange is a journalist and Wikileaks a news organization. In the context of the Espionage Act, however, this debate is irrelevant. Assange is under no obligation to keep the U.S. government’s secrets. If Assange can be charged with receiving classified information, then what is to stop the government from bringing similar charges against the New York Times or Bloomberg News?
There is some precedent here. In 2005, the U.S. government prosecuted two pro-Israel lobbyists for seeking out and intending to distribute classified information. That case began with a bang and made global headlines when the investigation was first announced in 2004. But the prosecution ended with a whimper. The charges were dropped in 2009 after federal prosecutors determined the government would lose at trial and would have to declassify material it wished to keep secret.
That setback did not stop the U.S. government from trying to learn more about the sources of reporters in prosecutions against government leakers. In 2012, President Barack Obama’s Justice Department obtained the phone records of Associated Press journalists working in its Washington bureau as part of a leak investigation. In the end, however, no reporters were ever charged.
Now Trump’s Justice Department has revived an old theory about the Espionage Act, arguing that it can be applied to the recipients of classified leaks and not just the leaker. It’s a dangerous development, and also an unnecessary one. The government can prosecute Assange without putting American journalism on trial.
Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.