James Goodale is one of the more prominent First Amendment lawyers in the United States. He represented the New York Times in the Pentagon Papers case. In 2013, Goodale wrote the book, Fighting For The Press, which outlined the threat to press freedom if President Barack Obama’s administration prosecuted WikiLeaks founder Julian Assange.
No First Amendment attorney has been as outspoken on what will happen to journalism if the U.S. government successfully extradites Assange and brings him to trial in the U.S. for violating the Espionage Act.
Ahead of the first part of Assange’s extradition hearing, I spoke with Goodale about the U.S. government’s argument that Assange is not protected by the First Amendment. He also addressed the evidence of an espionage operation against Assange while he was in the Ecuador embassy. The operation was reportedly backed by the CIA.
Below is an edited transcript of our conversation. In a few areas, the audio cut out, but it is still possible to understand all of Goodale’s key points on what is at stake in this case.
GOODALE: I have dreaded the beginning of the extradition hearing because I do not want Assange back in this country to be tried under the Espionage Act. So that’s my general point of view. I do not think that he should be tried under the Espionage Act because the act was designed for espionage and not for reporting the truth, which is what Assange did. And I don’t want the law stretched any further than it has already been stretched.
With respect to the precise nature of the hearing, while the principal issue in the extradition hearing will be whether or not the offense complained of is a political offense and therefore does not hit the middle of the target with respect to the First Amendment, it’s close enough. So I am following that issue very carefully to see how the court will deal with it.
Seems to be, generally speaking, the actions that Assange took were against the interests of the United States, against its political interests, and therefore he is being sent back for a political trial. If, in fact, I’m correct in that and the judge agrees with me, then he can’t be extradited. So that’s quite important.
A second issue that I’m following is the CIA’s tapping of his phone. It is quite clear that the CIA made a deal with a Spanish security company [inaudible]…to have that Spanish security company videotape and audio tape everything that went on…including importantly Assange’s conversations with his lawyers.
If you have a conversation with your lawyer and it’s being taped, that is really fundamentally bad.
More to the point, in terms of the history of the Espionage Act as applied to these proceedings in the United States, Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times, was tried under the Espionage Act back in 1973. That prosecution was dismissed because it came to the attention of the court that the “plumbers,” employees who were in the White House under President Richard Nixon’s tutelage, broke into the office of Ellsberg’s psychiatrist.
That is very much the same as breaking into the conversations, and as a consequence, Ellsberg’s trial was dismissed. By analogy, therefore, Assange should not come back to this country because his rights have been completely fouled up.
Third thing I’m following is that the government is taking this very strange position that Assange has no First Amendment rights whatsoever. That position is based on the idea that Assange is not an American citizen and therefore he doesn’t get First Amendment protections. The government has said they’re going to put that into the court. I will be listening carefully as to what exactly that position is.
GOSZTOLA: Is there any argument to be made that a person who is a non-American would not have First Amendment rights? Or are they concocting this argument, making it up on the fly out of whole cloth?
GOODALE: I would agree with the fact that they’re concocting it [but not necessarily out of whole cloth].
What happened once a long time ago was that a drug dealer in Mexico was arrested in violation of the Fourth Amendment, and the Supreme Court said hey, the guy’s in Mexico. He doesn’t get the protection of the Fourth Amendment. I don’t think that applies to this case because, first of all, it’s a First Amendment case, and secondly, in the drug dealer case, he was being pilloried in Mexico.
In Assange’s case, when he broadcast his information—that is to say when he put it on the net—it went worldwide, and it came into this country. So he was in the country, and if he’s in the country, he should get the protection of the First Amendment. The drug dealer to whom I referred was not in this country.
Pretty disturbing that the government would take somebody who is in a country other than the United States, namely Assange, and say that he’s subject to the Espionage Act of this country but he doesn’t get the protection of the other laws that would otherwise protect him. It’s the most outrageous goddamn thing I’ve ever heard.
GOSZTOLA: What we’re talking about here are secrecy laws within the United States that have bearing on First Amendment rights for U.S. citizens. Then those laws are being imposed on someone who is a foreigner. If the First Amendment doesn’t apply to Julian Assange, then how can this secrecy law? How can he be accused of violating the Espionage Act?
GOODALE: Exactly, how can the government have it one way and not the other way? You can’t have it both ways. He’s not subject to it and he’s out. Or he is subject to it and he gets the protection. It seems to me that when you think about this concept as applied to Assange, it makes no sense.
With a world that is tightly bound by the internet and thus we could have another example of this down the line. A precedent that the United States can go all over the world and pick up people who they think are stealing their secrets and try them under U.S. law when they’re in fact in some other country, not covered by protections of U.S. law, is a pretty outrageous concept.
GOSZTOLA: We see this reluctance to describe or allow Assange to be treated as a publisher. Of course, people don’t want to say he’s a journalist. But at minimum we can agree he’s a publisher.
Does it matter whether people describe him as a whistleblower or a journalist? I’ve always had a tough time trying to see him as a whistleblower because he’s not the originator of the information.
GOODALE: We got the leaker, Chelsea Manning. The leakee, that’s Julian Assange. Then we’ve got the publisher and that’s anybody who puts the leaks on his website. So let’s look at and see what Julian Assange does. Does he fit into the leaker category? No he doesn’t. Is the leaker category the same as the whistleblower category? So he’s not a leaker. So he’s not a whistleblower. Then what is he? He’s a journalistic entity who’s receiving information.
He’s very much the same as a reporter. Ok, and then he takes the information. He passes it on to the New York Times, among others. And the New York Times publishes it, and then Assange publishes, too. So, as I’ve said, he’s a publisher so he’s wearing two hats: one is as a quasi-journalist and one as a publisher.
With respect to being a publisher, it doesn’t matter whether you call him a journalist or not. He should be entitled to all protections that every publisher, including the New York Times, the Guardian, and the others get, under the First Amendment if in fact the First Amendment applies, which I think it does.
It makes no difference whatsoever under the law because if, in fact, you are gathering information you should be protected under the laws of this country regardless of whether we call that person a journalist, a leakee, or anything else. The function that he performs is something that the First Amendment protects. It’s something that freedom of speech [inaudible] freedom of speech laws of any country should protect. It doesn’t matter what you call him.
GOSZTOLA: You make the comparison between Assange and New York Times Neil Sheehan, who was involved in publishing the Pentagon Papers.
GOODALE: Many years ago, the government tried to do the same thing to Neil Sheehan. They had a grand jury all set up. They were going to indict him, and they were going to indict him under the Espionage Act. For reasons no one really knows, the grand jury got disbanded. They never went after Sheehan, but Sheehan and Assange are identical in terms of what happened to them and the function they performed.
GOSZTOLA: If you can apply the Espionage Act, then he has First Amendment rights. And then if he has First Amendment rights, how would all the details from the espionage operation be weighed to show the case could not go forward?
GOODALE: The basic argument you make is that the trial, if many, has to be fundamentally flawed if, in fact, everything that you’ve told your attorneys and told your colleagues is in the hands of the entity that is trying to prosecute you, namely the United States. So that’s why I say it’s the same as breaking in on Ellsberg’s psychiatrist, which is what the U.S. government did and the judge took a look at it and said I’ve got to throw the whole case out. \
We’ve got to remember that Ellsberg was in the same position as Sheehan. Tried under Espionage Act for criminal [inaudible]. So that case got thrown out, so why shouldn’t the Assange case get thrown out? So why shouldn’t the extraditing court in [the United Kingdom] say it’s so fundamentally flawed? He’s not going to go back.
GOSZTOLA: The media organizations or editors are sensitive. They describe him as a source and not a partner, even though there was collaboration. They may be doing this because they don’t want to treat him as a journalist.
Is there a liability issue?
GOODALE: I do not think there is a legal liability issue that causes the American press and particularly those who partnered with him to parse the definition of what Julian Assange was doing in this case. I think myself that it’s absolute foolishness on behalf of the journalist profession to try to distance themselves from Assange in any way we can. And that’s what we’re really talking about when establishment press, journalists generally speaking, say well he’s not really a journalist. He’s a source.
It’s all a bunch of nonsense as far as I’m concerned. He is performing for all practical purposes, and particularly for all legal purposes, all the functions of a journalist. So come on. Wake up, American press. This guy is doing enough of what you’re doing so that, when he’s penalized for what he’s doing, the penalties are going to come back and get you. Wake up.
Julian Assange, because he’s not the ordinary person you’d meet in any kind of circumstances, the journalists are standing askance and they don’t want to be associated with him. But too bad for those journalists who don’t want to be associated with him.
C’mon. He’s going to get pilloried, perhaps, without your support. You better stand up and support him because whatever happens to him is going to happen to you, and down the line, what’s going to happen is really bad.
And what’s really bad is the United States is going to end up with an Official Secrets Act, by which leaking not only is criminalized but receiving leaks in the capacity of a leakee is also going to be criminalized. And that is really bad because you’re just inviting governments, particularly authoritarian governments, to control their information.
And if they lose control, you go to jail. They don’t really believe that what you have received is that criminal. In fact, it’s the fact that you’ve got it and they don’t have it. And if they don’t have it, they can’t control you. Wake up, American press.
GOSZTOLA: Do you feel like the press and all the people who should be concerned have responded adequately?
GOODALE: One person is concerned, the present speaker. One person speaking out against one of the greatest threats to the American press in the history of the United States. The answer to your question is no one seems to be paying any attention.
If, in fact, you were to follow world press—the world press is covering this fully and completely. The American press isn’t covering it at all, as far as I can see. Thus far. And it will be very interesting to see what the press does as to the coverage of the trial in England.
The rest of the world is concerned. Why shouldn’t the U.S. press be concerned? I just don’t get it.
GOSZTOLA: There are [members of parliament] from European countries, who will be there as observers, but there isn’t a single person from [the U.S.] Congress who is going over to watch proceedings.
GOODALE: That’s a very good point. The German parliament [inaudible] briefing sessions related to Assange, and they will have observers. To the best of my knowledge, the U.S. will have no one.
Part of the problem in this country, which is different from other countries, is there’s a sour taste in the mouths of journalists with respect to Assange’s activities vis-a-vis the [Democratic National Committee (DNC)] leak. That is most freshly in their mind and because of that happenstance, and the fact that it was looked into by Mueller and is still around, has made Assange particularly unpopular. But so what?
GOSZTOLA: The case that they tried to bring against Julian Assange and WikiLeaks around the issue of hacked material but we saw a court defend the right of publishing hacked material in the United States and it seems like the political establishment just can’t accept that that is a part of our law.
GOODALE: Well, that’s another good point. That case was decided by my former First Amendment partner, Judge John Koetl.
He decided the First Amendment applies to Julian Assange in this country, and that Julian Assange’s activities with respect to the release of information concerning the DNC was protected by the First Amendment. That suit was brought by the DNC, and Judge Koetl went out of his way to say that the activities of Assange in releasing that information were fully protected by the First Amendment.
If the Justice Department is going to succeed in persuading the world that the First Amendment doesn’t apply here, they’re going to have to overrule Judge Koetl’s decision.