Is Julian Assange a journalist?

When it comes to the First Amendment, there is no restriction on who may publish information. Why, then, has Wikileaks been targeted so aggressively by the US government?
Jacob-sullum

Despite Vice President Biden's recent squabbling with Republican senators over the meaning of Christmas, he and Senate Minority Leader Mitch McConnell do agree on something. They both say WikiLeaks founder Julian Assange, who has published thousands of confidential Pentagon and State Department documents on his group's website, is "a high-tech terrorist."
       
But assuming that President Obama is not ready to drop a bomb on Assange, punishing him for disseminating military records and diplomatic cables will require specifying what crime he committed under U.S. law. That won't be easy, unless the Justice Department is prepared to criminalize something journalists do every day: divulge information that the government wants to keep secret.
       
Last week, Assange's lawyer claimed a grand jury has been convened in Alexandria, Va., with the aim of indicting him. But under what statute?

The most obvious possibility is the Espionage Act of 1917, which makes it a crime, punishable by up to 10 years in prison, to "receive," "deliver," "transmit" or "communicate" any "information relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."
       
In spite of the law's sweeping language, it has almost always been applied to government employees who leak information, as opposed to people who receive it and pass it on.
       
The one exception was the 2005 indictment of two former pro-Israel lobbyists who were accused of receiving and disclosing classified information about U.S. policy toward Iran. Their source, a Pentagon official, was convicted under the Espionage Act, but the case against them fell apart after the judge ruled that the government would have to show they knew their disclosures were unauthorized and might damage national security.
       
Assange could be prosecuted even under that reading of the law, and so could all the news organizations that ran stories about the WikiLeaks documents. But the government has never used the Espionage Act to prosecute a journalist, which is what Assange claims to be.
       
His critics disagree. "WikiLeaks is not a news organization," writes Washington Post columnist Marc Thiessen. "It is a criminal enterprise. Its reason for existence is to obtain classified national security information and disseminate it as widely as possible. ... These actions are likely a violation of the Espionage Act, and they arguably constitute material support for terrorism."
       
There is a circular quality to this argument: Assange is not a journalist because he's a criminal, and he's a criminal because he's not a journalist. But for constitutional purposes, it does not matter whether Marc Thiessen, Attorney General Eric Holder or anyone else considers Assange a journalist.
       
"Freedom of the press" does not mean the freedom of those individuals who are lucky enough to be officially recognized as members of the Fourth Estate. It means the freedom to use technologies of mass communication, which today include the Internet. This freedom does not amount to much if the government can deny it to someone by questioning his journalistic credentials.
       
The government could try to avoid First Amendment problems by accusing Assange of conspiring with Pfc. Bradley Manning, the Army intelligence analyst who is charged with leaking the Pentagon and State Department documents.

Such a conspiracy could be a crime under the Espionage Act or the Computer Fraud and Abuse Act, which prohibits disclosure of sensitive national defense or foreign relations information obtained through unauthorized computer access. But so far no evidence has emerged that Assange was any more culpable in the leaks than a reporter who receives confidential information from a government source.
       
There is another way to stop anger over the WikiLeaks document dumps from turning into an assault on the First Amendment. Assuming the allegations against Manning are true, the government should be asking why its own data security practices are so shoddy that a single low-ranking soldier with computer access was able to divulge such a huge trove of supposedly secret information.



Jacob Sullum is a senior editor at Reason magazine, and his work appears in the new Reason anthology Choice (BenBella Books). Sullum is a graduate of Cornell University, where he majored in economics and psychology. He lives in Northern Virginia with his wife and daughter.

14 comments from readers  

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Well said. While I think that Assange is probably close to the megalomaniacal monster he is being made out to be, I still find myself asking, "WHAT LAW DID HE VIOLATE?".

While I don't have a huge problem with the assertion that his leaks have put some of our side's intelligence sources in peril, I shall still play Devil's Advocate and ask, "WHOM has he put in danger? Name two of them..."

In the midst of the witch-hunt, let us not forget that it was another leaker of Assange's ilk, only a year ago, who saved the world from running off the cliff of the Global Warming hoax.

Excellent job, Jacob.
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Long Live Wikileaks. Mr. Sullum, thank you for writing about Wikileaks. If things are done morally or ethically, then there is no need to keep them a secret. If our government is right in what they are doing, then they should openly admit what they do. Secrecy is generally the realm of criminals.

Furthermore, a country founded on freedom and democracy should be ashamed of itself for labeling a proponent of freedom and transparency as a terrorist. A terrorist, by definition, is one who uses terror to achieve some political purpose. I don't know about you, but I don't classify releasing true information as inciting terror. And, every time that Wikileaks scores a victory, I cheer in the name of freedom.
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Mr. Sullum: While I agree with Freedom of the Press, and am considerably against govrnment power, most of which is constitutuionally illegal, I still have a problem with Wikileaks. Why did he do it? What was the fundamental purpose of his actions? Does he believe Government has no right to keep certain information secret? Did he believe that the information was a threat to the secrity and freedom of the American People/ I understand he had no intention of revealing military secrets or any info that would be useful to America's enemies such as al qaida or the Talaban. In the last ten years government has become an intrustive, abusive, illegal and dictatorial force over the American People. If it was revealed of these transgressions and the people became aware of the threat to their freedom their own government was insidiously imposing, then I am all for wikileaks, but if it was simply a malicious and vindictive act without a true purpose, then I would have to give it serious consideration. It is not so much what he did, as why he did it.
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Doesn't a journalist have to actually write something? Assange releases documents. He doesn't do reporting in the traditional way we think of. If I were Washington, I would be more concerned about how easy it was to get this information!
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I deeply disagree.

And indeed I don't read any serious theoretical argument in support of his stealing and disseminating information which was stolen from Government branches but also from private entreperises.

When he was arrested, his organization retorted by hacking private credit card companies, banks, corporations.

"The government did bad" is not an excuse for violating private property, as mr Assange did with Citigroup.

"The Government steals, so I'll steal from them: who cares?" is not Ragnarresque, it's Starved-Soviet-esque.

My job is analysing bank data, and providing industrials with information and analysis which help them in dealing with a corrupt and Government-sponsored banking system, and saving their entreprises from inflation, deflation and the legalised fraud of State-backed fractionary banking.

I daily confront situations which would make the meek and rational mr Reismann, mr Mises, mr Rothbard, mr Salsmann, mr Mulligan, pick up a machine-gun and go the

But I won't rob banks. Niether would rob their money, nor would I rob their data.

I won't steal those data, no matter how much I need them.

I'd love to read Bernanke's private notes about the next trillion of toilet paper he is going to print and inflict on the economy.

But I won't break in Bernanke's house in order to get them. Nor would I cheer Wikileaks if they did it.

The moment I did, the moment I partnered with people who don't value privacy, my job would lose all its meaning.

Remember that the first "hacker" in the current financial crisis was a man who stole bank data... and sold them to the German and American taxman.

He, too, was acclaimed by the Geek Hacking Community.

Once you legitimize hacking, privacy is dead.

And privacy is the mark of the individual's control on his own mind and speech.

There is a clear distinction between liberty (which stops at the boundaries of other people's living space) and "Anarchy in the name of Everybody", which won't stop at any boundary.

Mr Assange is the champion of a concept of voyeurist omnipotence and omniscience, of total dissemination of every information, for the sake of a collective equaoity of access to knowledge,

which may be a ""libertarian"" [double scarequotes needed] nerd's dream, but is a nightmare for somebody like me who thinks that people's liberty starts with individual liberty, not the other way round.

"We" will not be freed from Government oppression by using collective expropriation strategies.

I must say that, seeing your enthusiasm for mr Assange's "brave" hacking,

I am not a ease with entrusting you with my private data, as I did when I opened my account at Atlasphere.

Once there's no principle, who knows what "good reason", what "well-meaning campaign" could induce you to sell of give away those data?

Do you see what happens once you throw principles away? Private relations are corrupted.

One "Atlas"-named website should know better than praise gate-crashing.

I wish all the best to mr Assange, I wish no one prison, I stand for due process, but I won't support an ideological campaign in support of hacking.
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You nailed it in that last sentence!

I have been wondering that all along. Are they going to be able to avoid important national security questions at all levels, by nailing that poor private to the cross for the whole kit-n-kaboodle?

Or- alternately- are so many trivial or unverified documents currently labeled by our government "top secret" that you can't walk into a private's office and avoid tripping on some?
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He is a journalist and since I have an open blog....so am I. Just another instance of a government turned fascist in scope.
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I don't understand why people refer to the Espionage Act instead of the more appropriate Title 18 Chapter 37 - Espionage and CENSORSHIP. Even though the censorship bit was mostly repealed, it still serves as a haunting reminder.
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Would you say I should not be prosecuted for shouting fire in a crowded theater? I know people will probably get trampled to death or injured rushing for the exits. But, hey, I'm just exercising my freedom of speech!

Sullum says about Wikileaks, "When it comes to the First Amendment, there is no restriction on who may publish information". This is completely false: You can't engage in (or abet) speech which violates rights - as in, for example, directly causing -- or even having an excellent likelihood of -- getting people injured or killed.

Blowing the cover of CIA agents operating undercover in a police state is just one crystal clear example of this. Think of someone living in a lawless part of the Wild West. Someone is on the run from marauding outlaws. But a reporter, exercising his alleged freedom of speech, decides to publish his hiding place.

Think of someone selling the secret of how to make an A-bomb to Hitler. Or simply publishing it on the front page of the New York Times during WWII.
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By exposing governments' childish squabbles sealed as state secrets, Assange has demonstrated that the emperor has no clothes. That's why the power lusters and those who want to surrender to the power lusters everyone's liberty to gain a little perceived security hate him so much. If this be treason, make the most of it.

Great article.
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Journalists may also be measured based on their intentions. If their intention is to shed light on a cover-up, a conspiracy, or government malfeasance, then outing classified information results in a good.

But that is not what happened here. Assange's intentions are simple destruction. He hates the US, thinks it is the sole source of evil in the world, and his actions are nothing more than a nihilistic temper tantrum.

His background is that of a "computer hacker", a class of people who relish in breaking into and destroying other people's information on computer networks, and whose reward for such nihilism is the esteem of their hacker peers. These people operate in the fringes of sociopathy.

Now Assange is bringing this same mentality to bear - but is attacking the United States. His goal is to destroy the US government.

As we have seen by analyzing the cables, there is no conspiracy here. The government has a legitimate interest in the secrecy of negotiations, of its estimations of foreign leaders, things like that, because sometimes secrets like this are in our national security interest or help the government achieve needed goals.

Assange's wanton release of this information will do what he wanted, embarassment and damage to America's foreign policy endeavors - some of which are critical to our nation's very survival, such as the efforts to find allies against Iran's nuclear ambitions.
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Does Assange ever release secret documents from our enemies?
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Well put, Mr. Sullum. I do believe we have become such a fearful nation that reason no longer prevails. Why this man feels he needs to leak such information I do not know. However, as you put it, a lowley soldier was able to obtain it. Soooo! What does that tell us? Thanks for article.
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I have the greatest respect for Mr. Sullum's work in defense of liberty on a number of issues, most notably the Tobacco Witch Hunt, but I think he's making the same error here that I've become accustomed to hearing from radio talk personality Bill Handel: The subordination of ethics to concrete-bound legality.

Quoting Leonard Peikoff may be a nonstarter for people who've turned dishing on the man into a kind of hobby (I believe him to be a thinker capable of error but ultimately worthy of deep respect) - a point he identified is important as a starting premise here:

Not everything that is legal is ipso facto moral. Paraphrasing Peikoff, if I tell Mary Lou that I love her on Monday, then marry Lisa on Tuesday, what I've done is not illegal - nor should it be - but it is nonetheless immoral. The basic issue here is not whether Assange's acts are legal, but whether they're moral. The issue of legality is a purely pragmatic one, in context of how best to contain the damage the fool may be doing to the West's national security.

There is a difference between the rightful exercise of free speech and dumping random military data into the laps of frothing retro-Medievalist barbarians who've sworn to destroy Western Civilization in general and America in particular. Proclaiming that "I have every legal right to do so" with a shrug and a smirk does not alter the fact. The difference is twofold: Ethics and Context.

Predictable quarters - the same people who've drunk Paul's Kool-Aid on "noninterventionism" in foreign policy - have flopped right into the Kantian Imperative mode and heralded Mr. Assange as their latest "champion of freedom," on the theory that "He's against government, therefore he's just great!" As has been pointed out in countless objectivist analyses, anarcho-libertarianism is a stunning oxymoron (for extrapolation on which, I refer interested parties to Robert Bidinotto's analysis here: http://www.econot.com/page17.html .) Equally oxymoronic is the retro-flower-power Libertarian pacifism that Paul and his ilk are pushing.

- The very essence of legitimate government function is: the defense of individual rights;
- An advocacy of a "liberty" shorn of an agency capable of defending said liberty, is self-refuting;
- Conflating freedom of speech with freedom to evade the content of that speech in context of its tactical value to those theocratically and/or ideologically sworn to liberty's destruction, is logically self-refuting and morally bankrupt.

In short, intelligence assembled and retained by the armed forces is the first and most vital line of defense against Western Civilization's latest and most vicious enemy - the "tactic" of Islamic terrorism.

- Paul wants to gut agencies that assemble intelligence;
- Assange and his sycophantic groupies want to claim that indiscriminate dissemination of intelligence to the enemy, er, "tacticians," is justifiable, even vital, under the Kantian imperative of: sticking it to government whenever and wherever possible, context be damned.

It reminds me of Peikoff's analogy in the '76 lectures [paraphrased]: A devoted admirer of Kant is at home alone with her baby when a frothing maniac appears at the door with the demand "Where's the kid?" Knowing that lying is always wrong, the dutiful Kantian replies "Down the hall, second door on the left."

Assange is shoveling reams of intelligence to barbarians who by their own avowal want to cut my head off. And yours. And every other American's. It's nothing personal, mind you, just a "tactic."

His freedom of speech ends where the consequences of it become a threat to my life and to the country that defends my life. Prison is too good for him, but there may indeed be no legal justifications for locking him into a richly-deserved cage. We can be certain that ethics will never interfere with his choices, so in the final analysis the West has just gained a powerful new enemy, against which it has no defense except the kind of stringent control of sensitive data that should've been in place all along.

On the home front, Assange and Paul's foreign policy attitudes underscore the need for people to decide whether their first allegiance is to ethics or to legality, to objectivist philosophy or Libertarianism's Kantian view of national defense. Either-or.

- A political condition (liberty) shorn of the logical and (especially) ethical preconditions upon which its very existence depends, is a house constructed of Jell-O: Pretty to look at but not specifically durable;
- A Constitutionally-limited government, free speech and a comprehensive restoration of lost liberties are moot if your cities have been vaporized and you have become a smoking lump of polycarboniferous radioactive sludge baked to the sidewalk.

Assange's curious fetish for aiding and abetting Western Civilization's enemies may indeed be perfectly legal. It will never be ethical.
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