Julian Assange continues to be a pain in sensitive places, from the neck to the unmentionable nether regions. Mr. Assange is clearly in serious legal trouble. The charges against him, contained in a 17-count indictment that says he “received and published” classified intelligence, are “jail-y,” and probably for a long time.
He still has to answer charges of rape in Sweden, though the lady in question may not understand what an honor it was to be violated by someone of such high moral tone and notable pedigree as Mr. Assange. Nevertheless, the Swedish prosecutors are in hot pursuit, as are prosecutors in the United States. Both nations have asked extradition.
The more serious government offense in Washington is that he was responsible for a series of major document releases, including State Department cables and military secrets from war in Afghanistan and Iraq. Special counsel Robert Mueller said Mr. Assange coordinated (one might say colluded) with the Russians to cook the results of the 2016 presidential campaign by spreading emails pinched from the computers of Hillary Clinton and John Podesta, her campaign manager.
One might think his deeds, considering the consequences, make him a public enemy of the folks who have made the destruction of Donald Trump their lives and obsession. But no, many of them praise his cunning, his boldness and ersatz patriotism in, in the words of that lofty cliche, “speaking truth to power.” They argue that the cases against him, both here and in Sweden, are thinly disguised railroad jobs, and the powers that be want to punish him for doing his job, embarrassing powerful bureaucrats.
Mr. Assange has taken refuge in the First Amendment, where scoundrels often try to hide, but he is not actually a journalist even in an age when a laptop or even a smartphone can give a political activist airs, and sometimes recognition from those who think they’re his betters. They concede that Mr. Assange is a jerk, but say that the charges against him could set a precedent enabling the government to pursue actual journalists to suppress the rights enumerated in the First Amendment.
They have a point. Mr. Assange was indicted under a 102-year-old law, the Espionage Act of 1917, which makes it a crime to obtain, retain or transmit military secrets without authorization by relevant government authorities. This is the law used to prosecute spies in two actual wars and the Cold War that followed. Julius and Ethel Rosenberg were prosecuted under this law and were executed for conspiring (one might again say “colluded”) with the Soviet Union to harm the United States. The law has never been invoked to prosecute journalists.
The government does not consider Mr. Assange a journalist, and neither do many journalists. “Julian Assange is no journalist,” Assistant Attorney General John Demers said when the federal grand jury handed up the indictment last week. The government argued that no responsible person, journalist or otherwise, would purposely publish the names of men and women he or she knew to be confidential human sources in war zones, which would expose them to risk of death.
Mr. Assange, as some journalists have pointed out, had neither editor nor publisher in the usual way “publisher” is defined, and if he had, he would have been restrained by editors enforcing even minimum caution, as editors are hired to do, in his crusade to hit readers over the head with military and state secrets. The enemy reads newspapers, too. Collateral damage kills. Material from the Assange file of pilfered secrets was found in the home of Osama bin Laden in Pakistan.
Secretary of State Mike Pompeo called WikiLeaks “a non-state hostile intelligence service.” “From that perspective the slope from charging Mr. Assange to prosecuting, say, the Associated Press, does not look very slippery,” as The Wall Street Journal observes.
But some newspapermen (to use the distinctive word now falling out of style in the search for something perceived as grander like “journalist”) dispute the assertion by The New York Times that what Mr. Assange did is something that “journalists do all the time.” Pursuing embarrassing information that government bureaucrats are trying to hide under a rubber stamp of “classified” is indeed something that journalists try to do all the time, but within limits.
“Receiving in bulk vast troves — hundreds of thousands — of documents involving war-related secrets and publishing many of them in time of active combat is not something journalists do all the time,” observes the New York Sun. “It does not strike us a journalistic work.”
The Trump administration has, as our English cousins say, put the cat among the pigeons. Whether Julian Assange’s mischief — and mischief it certainly was — is protected by the First Amendment is something the courts will have to sort out. It’s why Supreme Court justices get the big bucks.
• Wesley Pruden is editor in chief emeritus of The Times.