WikiLeaks founder Julian Assange has been jailed in London’s Belmarsh Prison since April 11, when Ecuador authorities revoked his political asylum in their embassy and British authorities arrested him.
The United States government had Assange arrested for extradition on charges of violating the Espionage Act and conspiracy to commit a computer crime that stem from the disclosures from U.S. Army whistleblower Chelsea Manning that were published in 2010.
As part of a questionnaire on presidential executive power, the New York Times asked each candidate for president whether they support the charges against Assange and if they believed they were constitutional.
Multiple candidates gave exceptional answers. A few plainly stated they would drop the charges immediately while Senator Michael Bennet, former Vice President Joe Biden, Senator Cory Booker, and Senator Kamala Harris offered responses that were particularly mediocre.
“Prosecutors recently expanded a criminal case against Julian Assange to include accusations that he violated the Espionage Act by soliciting, obtaining, and publishing classified documents leaked in 2010 by Chelsea Manning, which could establish a precedent that such common journalistic activities (a separate question from whether Assange counts as a “journalist”) can be treated as a crime in America,” the Times wrote.
“Are these charges constitutional? Would your administration continue the Espionage Act part of the case against Assange?” the Times asked.
Before getting to the answers from candidates, there is a flaw in the question. The computer crime charge against Assange stems from the publication of information just like the Espionage Act charges. Media organizations should not be suggesting that a smaller part of the prosecution is possibly defensible, especially since it was the first public charge put out as he was arrested. It set this whole process of jailing a journalist in motion.
Biden, Booker, Harris, Montana Governor Steve Bullock, and former Representative Beto O’Rourke each declined to answer the specific question.
“I won’t speak specifically about the Assange case—it isn’t appropriate for me to offer an opinion on an ongoing criminal prosecution that is now pending in court and about which all the details are not publicly available,” Biden stated.
Biden spoke specifically in 2010 when he was part of President Barack Obama’s administration. He suggested Assange probably “conspired to get these classified documents with a member of the U.S. military” and added “that’s fundamentally different than if someone drops [documents] on your lap” and says “you’re a press person. Here’s classified material.”
He even agreed with Republican Senate Majority Leader Mitch McConnell that Assange is much more like a “high-tech terrorist” than a journalist.
Biden wrote, “I’m not assuming in any way that Assange is in fact a journalist,” which indicates he believes he would have the authority to decide who is and is not a journalist.
“Government officials often have compelling reasons to keep national security information confidential, and professional journalists have long recognized and respected those reasons. Unlike WikiLeaks, responsible journalists historically have declined to publish information when publication would put lives in danger or threaten harm to the national interest,” Biden declared.
When current and former government officials like Biden 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.”
Biden continued, “The First Amendment does not immunize journalists from responsibility for breaking the law. Journalists have no constitutional right to break into a government office, or hack into a government computer, or bribe a government employee, to get information. The perpetrator of a crime should be subject to prosecution.”
This may seem like a fairly innocent statement, however, it was essentially the argument the Obama Justice Department employed when it targeted New York Times reporter James Risen with a subpoena and tried to force him to divulge his confidential sources for a leak prosecution.
The Fourth Circuit agreed with the Obama Justice Department. “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”
Biden did concede the government should be “hesitant to prosecute a journalist who has done nothing more than receive and publish confidential information and has not otherwise broken the law.” He referenced the Pentagon Papers case. Yet, Biden does not think Assange is a journalist so this remark carries no benefit for the dissidents who his administration may seek to exclude from First Amendment protections.
“I would ask my Attorney General to review DOJ policy and guidelines to ensure that my administration is upholding the First Amendment and protecting the free press,” Booker answered.
Booker engaged in sloganeering about democracy needing a free press to operate and opined about Trump’s vilification of the press, although Trump’s clashes with reporters are not relevant to the basic question.
The answer from Harris was terribly abstract. “The Justice Department should make independent decisions about prosecutions based on facts and the law. I would restore an independent DOJ and would not dictate or direct prosecutions.”
No one would guess from reading only that answer that she was responding to a question about the Assange prosecution and the threat it poses to press freedom.
Similar to Biden, Bennet said there should be a “distinction” between the press and whistleblowers who serve a public purpose and “those, like Assange, who publish classified information without regard to whether it may put American forces in danger.”
Of the candidates who oppose the prosecution of Assange, South Bend Mayor Pete Buttigieg, Representative Tulsi Gabbard, Senator Bernie Sanders, Senator Elizabeth Warren, former Representative Joe Walsh, and Marianne Williamson gave the best answers.
Buttigieg said the charges against Assange may be unconstitutional, depending on how the Justice Department argues the case. Warren contended prosecuting Assange could set a dangerous precedent. (Both used qualifiers to make it clear they were not defending Assange.)
“It is not up to the president to determine who is or is not a journalist,” Sanders declared. “The actions of the Trump administration represent a disturbing attack on the First Amendment and threaten to undermine the important work that investigative reporters conduct every day.”
Williamson deserves credit for an answer that, unlike the other responses, incorporated some of the history of the Espionage Act.
“The Espionage Act is a relic of President Woodrow Wilson’s prosecution of Eugene Debs for opposing his military frolic in the Soviet Union,” Williamson wrote. “The Act violates freedom of speech and press by criminalizing publications without proof that the disclosures were intended to and did cause material harm to the national security of the United States.”
Williamson added, “The First Amendment does not permit a British-style Official Secrets Act for classified information. I would drop the Espionage Act counts against Assange.”
The Obama administration transformed the Espionage Act into a de facto Official Secrets Act by using it to prosecute more leakers or whistleblowers than all previous presidential administrations combined (something which Biden ignored entirely in his answer).
“No, this is a violation of freedom of speech—unconstitutional,” Gabbard plainly replied. “No, my administration would drop this case.”
Stunningly, Walsh, a Republican, gave a really good response. “I’m troubled that within the lens of the Assange case, much of the coverage has focused on whether his activity was ‘journalistic’ or not. I reject this lens insofar as freedom of the press is vital as a manifestation of our constitutionally enshrined First Amendment rights to freedom of expression, a right that extends to many forms of expression and speech.”
“Leaving it up to the court in our age of new media to make a determination about what constitutes journalistic activity and what doesn’t is dicey.”
Walsh added, “The burden must not be on a journalist to make a determination about whether information may legally be disclosed or not—that goes against the spirit of the Fourth Estate that is so central to our democracy.”
“Rather, to the matter of how to prevent classified information [from] finding its way into the wrong hands, I would work as president to strengthen whistleblower protections to prevent situations where otherwise law-abiding government employees or contractors feel that the only option for recourse when attempting to ring the alarm on bad actors (individuals, agencies, or otherwise) is to go to the media,” Walsh concluded.
Walsh’s answer contemplated issues that relate to the war against leaks waged by the government in the past decade. He did not specifically mention the overclassification of information but both that systemic problem and weak whistleblower protections (particularly for national security or intelligence officials) ensures there will be leaks to the press.
Overall, the vast majority of presidential candidates oppose the Assange prosecution. Many demonstrate a decent understanding of how this threatens press freedom.
Either would be in a position to stop the prosecution after they were elected because Assange’s first extradition hearing is not until February 20 and it could be years before the government succeeds in transferring him to the U.S. for a trial.