The Core of the Issue

Many people who might otherwise care about press freedom are reluctant to defend Assange because of aspects of his politics or his history. Most seriously, in 2010, he was accused of sexual assault in Sweden. The charges were never proven, and the investigation was ultimately dropped, but I can understand why a question mark hangs over his head in the minds of many observers.

The crucial point, though, is that whatever is or isn’t true about these other allegations, none of it has any bearing on this case. Prosecuting him for engaging in investigative journalism is a disturbing assault on press freedom in the United States and around the world.

Assange isn’t even a US citizen. If he can be prosecuted for publishing information that the US government would prefer to keep secret, any journalist anywhere in the world would have to think twice about exposing war crimes for fear of ending up on a one-way trip to the United States. The chilling effect on the global media would be profound.

Which is, of course, exactly the point.

Julian Assange and the “New York Times Problem”

In the letter, the House members point out that “what Mr. Assange is accused of doing” in “publishing truthful information” about Guantanamo Bay and US war crimes in Iraq and Afghanistan is “legally indistinguishable from what papers like the New York Times do,” and that the Obama administration decided not to indict Assange for precisely that reason. “The Trump administration, which brought these charges against Mr. Assange, was notably less concerned about press freedom.”

If anything, that comparison is misleadingly generous to Obama — although in a way that ultimately reinforces Tlaib and her cosigners’ point. The Obama administration’s record on press freedom was abysmal. Yet even Obama was too squeamish about the democratic implications to indict Assange.As the Associated Press noted in a fact check of one of Obama’s statements in 2018, the Obama administration used “extraordinary actions to block the flow of information to the public,” using “the 1917 Espionage Act with unprecedented vigor, prosecuting more people under that law for leaking sensitive information to the public than all previous administrations combined.” These efforts included many instances of going after journalists and media organizations (including the Associated Press itself) to try to clamp down on leaked information.

Still, there was a line that the Obama administration was reluctant to cross. It hated Assange, who had repeatedly exposed the misdeeds of the US war machine; then vice president Joe Biden said that Assange was “closer to being a hi-tech terrorist than the Pentagon Papers.” (The actual leaker of the Pentagon Papers, Daniel Ellsberg, strongly disagreed with that assessment and is a staunch supporter of freeing Assange.) But the administration ultimately decided not to indict Assange under the Espionage Act because of what the administration internally referred to as “the New York Times problem.”

As much as it deplored leaks, the Obama administration knew that there was no way of legally differentiating what Assange did from what any investigative journalists does. Welcoming, encouraging, and publishing information that governments or other powerful actors want to remain secret is at the heart of what investigative journalism is, and any legal theory used to prosecute Assange could be used against the Times or any other mainstream news outlet that exposes the secrets or lies of people in power.

Trump decided that he was fine with setting a democracy-flouting precedent. And the Biden administration is picking up right where Trump left off.

Treating a News Publisher Like Hannibal Lecter

Last year, when I interviewed Slovenian philosopher Slavoj Žižek on my podcast, he told me a small but revealing story about visiting Assange in prison. Žižek had a container of coffee between himself and Assange on the table. He picked it up, took a sip, and set it back down without replacing the cap. Immediately, a prison guard rushed over to tell him that this was a security risk — he had to keep the cap on. Such a dangerous prisoner, after all, might decide to splash hot coffee in the face of one of his friends and supporters. Perhaps Assange should be wheeled around in the same contraption as Hannibal Lecter in Silence of the Lambs to make sure he doesn’t randomly jump on people and start tearing gobs of flesh out of their necks.

It’s worth remembering that the heinous crime for which Assange is facing extradition to the United States is . . . publishing information embarrassing to the US government. As Tlaib and her cosigners point out in their letter to Garland, Assange’s prosecution “marks the first time in U.S. history that a publisher of truthful information has been indicted under the Espionage Act.” This could lead to the prosecution of outlets like the New York Times or the Washington Post when they do their job and publish information the government wants to shield from the public — or, “just as dangerous for democracy, they may refrain from publishing such stories for fear of prosecution.”

That last point is the most important one. Citizens of what’s supposed to be a democracy need to know what their government is up to so that they can have their say. The more effectively that government keeps elements of its foreign policy secret from the public, the more it turns that core premise of democratic government into a bad joke.

As usual, Rashida Tlaib is absolutely right.