Late last month, the long-running saga of U.S. v. Julian Assange concluded with Assange entering a guilty plea to the felony charge of violating the Espionage Act by “conspiring to obtain and disseminate classified information related to the national defense of the United States.” In recognition of the 62 months that Assange was incarcerated while fighting extradition to the U.S. for trial, the plea agreement called for a sentence of “time served” and Assange was released from custody following his plea.
While securing the ability to walk free as a convicted felon delighted Assange and his wife, working journalists were less elated with the outcome which The New York Times lamented “sets a chilling precedent” that “will send a threatening message to national security journalists.” In ominous terms, the Times insisted that the Assange plea agreement means that “for the first time in American history, gathering and publishing information the government considers secret has been successfully treated as a crime.” Echoing this verbal handwringing, the Committee to Protect Journalists deplored the “harmful legal precedent” set by the government’s pursuit of Assange which “opened the way for journalists to be tried under the Espionage Act if they receive classified information from whistleblowers.”
Despite such sanctimonious consternation, I offer assurance that 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 Assange plea agreement should 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.
The “National Security Journalist’s” New Dilemma
When Assange was first indicted on charges that included violations of the Espionage Act in May 2019, the Justice Department insisted that Assange was “not a journalist” — despite the undeniable similarities between Assange’s conduct and the types of activities in which national security journalists routinely engage in their efforts to pry classified information from those with legitimate access. Assange acknowledged as much when he told the judge at the hearing on his guilty plea that “working as a journalist I encouraged my source to provide information that was said to be classified in order to publish that information.”
Many mainstream journalists surely recognize that Assange’s description of his actions is exactly what “national security journalists” do every day. Those advocating First Amendment protection for Assange’s conduct admit that his actions reflect “things that journalists do all the time and need to do” because experienced journalists reporting on national security, intelligence and defense-related matters will generally know, or strongly suspect, that the information they are encouraging others with access to pursue is classified. Not surprisingly, both The New York Times and the Washington Post use secure encryption systems to allow for the confidential transmission of such information. They also know that individuals who furnish them with such classified information are violating the law; hence, the extensive security precautions available to sources to transmit the information to the media. 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 it to a third-party, including the media.
For far too long when it came to addressing the leaking and subsequent publication of classified national security information, the government exhibited a passivity bordering on paralysis in responding to such unauthorized disclosures. The federal government has brought no more than a dozen leak prosecutions in the century since the Espionage Act was enacted, and never once in the past half-century has the government proceeded against a member of the media for publishing or possessing leaked information. This passivity is fed by restrictions imposed by the Justice Department that handicap, and in many instances completely handcuff, any effort to combat unauthorized disclosures.
These features, combined 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,” created a perception of protection. The government’s lethargy in the face of the deluge of unauthorized disclosures evoked a sense, certainty within the world of journalists, that such activities are protected by the First Amendment – even where violative of the Espionage Act (or other less notorious provisions of the federal criminal code (like 18 U.S.C. § 641)) when committed by non-journalists. As the New York Times solemnly intoned after the Assange plea, “No one had ever been charged under the Espionage Act for a journalistic act, in part because there had long been a widespread assumption that applying the law to such acts would be unconstitutional.”
The felony conviction of Assange for violating the Espionage Act punctures this misguided journalistic sense of First Amendment immunity. During the colloquy conducted by the court before accepting Assange’s guilty plea, Assange confirmed his violation of the Espionage Act by conceding that “working as a journalist, I encouraged my source to provide information that was said to be classified in order to publish that information.” While Assange initially said he believed the First Amendment protected the activities forming the basis for the criminal charge to which he pled guilty, he admitted to the court that “I accept it’s a violation of an espionage statute,” adding, “I believe the First Amendment and the Espionage Act are in contradiction of each other, but I accept that it would be difficult to win such a case given all the circumstances.” The court’s acceptance of these admissions as representing a sufficient factual predicate to support Assange’s conviction for violating the Espionage Act serves notice to “national security journalists” that it is the government that possesses the authority and responsibility to protect the nation’s security, and its secrets. The espionage laws represent constitutionally valid tools for securing such protection where the activities of “national security journalists” warrant such use.
The Value of the Assange Conviction to Protecting National Security Secrets
While some have criticized the government’s acquiescence in the Assange plea agreement because the sentence was limited to “time served” and covered only one of the 17 counts contained in Assange’s indictment, from a national security perspective, the Assange outcome should offer the opportunity for a perceptible change in the government’s approach to unauthorized disclosures and the wrongful publication of classified information. As former Director of National Intelligence James Clapper opined, Assange’s admission to violating the Espionage Act is “critical” and was essential to securing the assent of the intelligence and law enforcement communities to the Assange plea agreement.
No provision in the Constitution generally, and none in the First Amendment, appoints journalists as unelected ombudsmen for determining which national security information remains secret. In fact, only elected officials have the authority to designate information as classified, and to dictate its handling. One can have a healthy respect for the First Amendment and its protections consistently with supporting criminal sanctions against journalists who violate the law regarding the handling of classified national security information. Espionage prosecutions are not immune from First Amendment scrutiny, but the First Amendment does not presumptively preclude employing espionage laws where the press publishes unlawfully acquired information regarding the nation’s security. For the first time, the outcome in U.S. v. Assange affords the government a legal precedent to help reach a much-needed realignment in an area where journalists have long operated with a misguided sense of constitutionally conferred immunity.
Significantly, nothing in the Assange outcome precludes or inhibits journalists from continuing to investigate and report on national security, defense, diplomatic and foreign policy issues. Multiple sources of information, inside and outside of government, remain available to pursue those tasks. But those activities must be conducted in accordance with existing laws that include provisions, including criminal sanctions, designed to protect national security by limiting access to classified information. No one is suggesting that the Assange plea resolution neuters consideration of the First Amendment in connection with reporting on these national security matters; indeed, journalists will almost certainly characterize the Assange case as an outlier with no First Amendment precedence regarding genuine “journalistic activities.” While such an interpretation myopically minimizes the impact of the Assange outcome, courts, mindful of the values protected by the First Amendment, will undoubtedly scrutinize any future effort by the government to apply the espionage laws to such “journalistic activities.” What the Assange case does is assure that the mere invocation of the First Amendment by a journalist no longer prophylactically bars any effort to pursue such a prosecution at all.
In its own assessment of the impact of the Assange felony conviction, The New York Times lugubriously insisted that “if the future free flow of newsworthy information to the public has indeed been inhibited, damaging the American system of democracy, responsibility is shared by officials from both [the Trump and Biden] administrations.” I suggest that this is overblown hubris. Assange’s felony conviction certainly makes an important 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, have represented the best case for making 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. Those journalists 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 of mainstream media squirming from the uncomfortable proximity that their own conduct shares with Assange’s felonious activities reflects less that a constitutional line has been crossed, and more that government torpidity may finally give way to action.
George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. You can follow him on Twitter (@GeorgeCroner) and find a list of his publications at FPRI.org. Read his full bio here.
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