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The FBI Director’s Unsettling Argument For Why WikiLeaks Doesn’t Deserve First Amendment Protection

FBI Director James Comey offered some of the clearest indications yet that the United States government remains committed to prosecuting WikiLeaks editor-in-chief Julian Assange. He stated WikiLeaks is an “important focus” of intelligence agencies.

During a Senate Judiciary Committee hearing, Comey attempted to distinguish WikiLeaks from outlets like the New York Times or the Washington Post. He acknowledged the First Amendment rights journalists have in the U.S. while arguing WikiLeaks does not engage in journalism.

Republican Senator Ben Sasse asked Comey why Assange has not been charged with a crime. Comey did not want to confirm whether there were charges pending but came pretty close by saying Assange “hasn’t been apprehended because he’s inside the Ecuadorean embassy in London.”

Assange has been in the Ecuador embassy under asylum since August 2012. He has claimed that he fears if he went to Sweden to face allegations related to sexual assault claims he will be extradited from Sweden to the U.S. The Swedish claims against Assange have kept him in limbo. The testimony from Comey essentially affirms concerns that many of WikiLeaks’ fiercest critics have treated as unfounded.

“Nothing That Even Smells Journalist”

Sasse went above and beyond to create a moment where the FBI director could argue WikiLeaks is a threat to the United States, not a “journalistic outfit.”

SASSE: There is a room for reasonable people to disagree about what point an allegedly journalistic organization crosses a line to become some sort of a tool of foreign intelligence. There are Americans, well-meaning thoughtful people, who think that WikiLeaks might just be a journalistic outfit. Can you explain why that is not your view?

COMEY: I want to be careful that I don’t prejudice any future proceeding. It’s an important question because all of us care deeply about the First Amendment and the ability of a free press to get information about our work and publish it. To my mind it crosses a line when it moves from being about trying to educate a public and instead becomes about intelligence porn.

Just pushing out information about sources and methods without regard to interests, without regard to the First Amendment values that normally underlie press reporting and simply becomes a conduit for the Russian intelligence services or some other adversary of the United States just to push out information to damage the United States. And I realize reasonable people struggle to draw a line but surely there’s conduct that’s so far to the side of the line that we can all agree that there is nothing that even smells journalist about some of this conduct.

Referring to the release of emails from Hillary Clinton’s presidential campaign and Democratic National Committee documents, Comey previously stated, “We assess [WikiLeaks] used some kind of cutout. They didn’t deal directly with WikiLeaks, in contrast to DC Leaks and Guccifer 2.0.”

But whether the government has any clear evidence of a “cutout” with ties to Russian intelligence is called into question by officials like Director of National Intelligence James Clapper, who testified, “The WikiLeaks connection, evidence there is not as strong , and we don’t have good insight into the sequencing of the releases or when the data may have been provided.”

Assange claims, “We have said clearly that our source is not a member of the Russian state. And even the U.S. government is not suggesting that our source is a member of the Russian state.”

“Simply About Releasing Classified Information To Damage The United States”

Comey stated, “In my view, a huge portion of WikiLeaks’ activities has nothing to do with legitimate news gathering, informing the public, commenting on important public controversies but is simply about releasing classified information to damage the United States of America.”

The idea that a media organization ceases to be a “journalistic outfit” protected by the First Amendment when they are intent to “damage” a country’s government was considered by Attorney General Alberto Gonzales in 2006.

As part of President George W. Bush’s administration, Gonzales believed the Times’ publication of details exposing the National Security Agency’s warrantless wiretapping program could be a violation of the Espionage Act of 1917, a statute the Justice Department used routinely to prosecute leaks when Barack Obama was president. By revealing how the government conducted surveillance of “terrorists,” Bush administration officials argued journalists had helped enemies learn about a key method used to track them and so they would be able to circumvent it.

This is also the government’s argument for criminalizing WikiLeaks. It is amplified by the contention that WikiLeaks does not contact U.S. agencies first like the Times or the Post to see if any of the material will put American lives in danger if documents are published.

Comey reasoned U.S. outlets “almost always call us before they publish classified information and say is there anything about this that is going to put American lives in danger, that’s going to jeopardize government people or military people or innocent civilians anywhere in the world and then work with us to accomplish their important First Amendment goals while safeguarding those interests.”

“This activity I’m talking about, WikiLeaks, involves no such considerations whatsoever. It’s what I said to you, intelligence porn. Just push it out in order to damage,” Comey added.

It is not true that WikiLeaks has never contacted the U.S. government to ask for help in order to safeguard lives. WikiLeaks said it contacted the Pentagon for assistance with 15,000 military incident reports containing the names of Afghan civilians. The Pentagon acted as if WikiLeaks was lying about contacting officials and demanded WikiLeaks return any stolen documents they had immediately.

For at least seven years, the U.S. government has been hostile toward WikiLeaks. If WikiLeaks does not contact officials to talk to them about planned releases, it is because they have a reasonable fear such contact will be used to target WikiLeaks or engage in counterintelligence operations designed to undermine or discredit their work.

When critics reflexively state that WikiLeaks has endangered lives, they typically are referring to the publication of the Afghanistan War Logs. But Pentagon press secretary Geoff Morrell stated, “We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents,” and later, the Associated Press concluded on August 17, “There is no evidence that any Afghans named in the leaked documents as defectors or informants from the Taliban insurgency have been harmed in retaliation.”

The notion that WikiLeaks does not comment on this information like other outlets is not true either. While it may not publish news stories, it has facilitated partnerships between media organizations indirectly and directly in order to ensure documents receive widespread attention. Assange has also held press conferences and posted press releases, where comments on specific aspects are highlighted for media and the public.

What Is “Legitimate” News Gathering?

While it may make for a good-sounding soundbite and discredit WikiLeaks, “intelligence porn” is a misnomer. “Intelligence porn” is what CBS’s “60 Minutes” created when then-correspondent John Miller toured the NSA in December 2013 and boasted about gaining access to spies. WikiLeaks publication is the opposite and shows how obscene it is for the press to be so philanderous with security officials.

Sasse’s questions for Comey were aimed at convincing more of the press, as well as citizens, to favor prosecution of Assange and anyone else who works for WikiLeaks.

There was an exchange, where Comey asserted there was no plan to criminalize journalists at established outlets for asking intelligence employees to leak information. “Our focus is and should be on the leakers, not those that are obtaining it as part of legitimate news gathering,” Comey said.

Yet, what is “legitimate” news gathering and what business does the government have deciding who is and is not engaged in such “legitimate” journalistic activities?

The testimony failed to contemplate the current media landscape. Where do independent bloggers or citizen journalists fall into all of this? Do they have to contact agencies to publish work without fear of being criminalized as someone traitorous or unpatriotic?

More significantly, the insistence that the Justice Department will not expand the Espionage Act to go after journalists at the Times or Post is belied by the fact that Attorney General Jeff Sessions opposes protections for reporters who publish leaks.

“You could have a situation in which a media is not really the unbiased media we see today, and they could be a mechanism through which unlawful intelligence is obtained,” Sessions testified during his confirmation hearing. He was alluding to his disdain for journalists like Glenn Greenwald and Laura Poitras, who published documents from NSA whistleblower Edward Snowden.

Back in 2013, while a bill to enshrine some type of reporter’s privilege into law was considered by senators, Sessions opposed the legislation. ““Many news organizations that will be covered under this law represent ideologies, foreign interests directly contrary to the United States’ national security interests. This legislation, in effect, says we’re going to create legal mechanisms to protect anyone who calls himself a newsperson.”

“We need to make it clear, so that a reporter says ‘no, that information is clearly not the type of information I can take and publish and protect you, who are leaking in a criminal act secured information,” Sessions previously declared. “That’s the way you create some kind of clarity in our legislation. We’re not attempting to prosecute a journalist. We’re attempting to tell the journalist precisely what…he can tell a potential informant, leaker, spy, traitor…a cold-blooded traitor he could be dealing with.”

Only during U.S. military whistleblower Chelsea Manning’s trial and in response to recent remarks by Trump and Sessions has the U.S. press openly contemplated what prosecuting Assange would mean for freedom of the press. However, since a grand jury held its first session in 2011, the establishment press has mostly overlooked the issue of criminalizing and isolating WikiLeaks. Even with the revelation of Google search warrants against WikiLeaks staff, editorial boards and journalists remained largely silent.

Trump and Sessions control a machine that can be turned against Assange or any dissident journalist if they choose to expand leaks prosecutions to control the flow of information to the press. They inherited it from Obama. They can test the justice system and bring a case that suggests a crime unrelated to journalism was committed during the act, which would set a terrible precedent.

In fact, Sasse’s office posted video of his exchange with the following description: “Let’s get this straight: a free and independent press is critical to our democracy and Julian Assange is an enemy of that democracy. If Assange was truly the free speech champion he claims to be, he wouldn’t be collaborating with a Russian thugocracy that murders journalists.”

The push to build support for prosecuting a publisher of a media organization is in full effect.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."