Citizenship Does Not Disqualify Julian Assange from Eligibility for First Amendment Protections

In an exposé released by Yahoo! News late last month, investigative reporters at the news outlet revealed plans by the Central Intelligence Agency to kidnap or kill Julian Assange, the Founder and former Editor-in-Chief of Wikileaks.

Derived from interviews with over 30 former senior government employees, the report reads: “Discussions over kidnapping or killing Assange occurred ‘at the highest levels’ of the Trump administration, said a former senior counterintelligence official.” At the time, WikiLeaks had recently published Vault 7, which the CIA has deemed “the largest data loss in CIA history.”

According to the report, the United States prepared for “potential gun battles with Kremlin operatives on the streets of London, crashing a car into a Russian diplomatic vehicle transporting Assange and then grabbing him, and shooting out the tires of a Russian plane carrying Assange before it could take off for Moscow.”

But threats to Assange have been far more insidious than those explored within the Yahoo! News report. An anonymous source close to WikiLeaks, for example, has said that the Republican-dominated Senate engaged in questionable dealings as America’s former President, Donald Trump, issued pardons during his last days in office. Requesting anonymity as a highly prioritized target of the United States, this source has claimed to have reviewed evidence that Senators of the G.O.P. promised their loyalty to the former President in a possible set of post-January 6th impeachment proceedings only if Trump omitted Assange from his list of pardons. They blackmailed The Donald.

So, what gave rise to the threats that Assange has faced since Trump took office? And how is the U.S. government justifying its malice toward the Australian journalist? Although the United States has no justifiable basis for doing so, its abuses of the publisher’s human rights persist.

 

CIA Director Laid Groundwork for Trump Administration’s Persecution of Assange:

During his first major public address as the Director of the CIA roughly four years ago, Michael Pompeo condemned the likes of Edward Snowden, as he deemed WikiLeaks “a non-state hostile intelligence service.” He characterized Assange as a “terrorist.”  However, Pompeo designated Assange as such only because the Australian has engaged in the constitutionally protected activity of publishing; as the publisher of WikiLeaks, the journalist has released American state secrets—an activity that Pompeo claimed threatened national security.

Addressing members of the Center for Strategic and International Studies (“CSIS”) in Washington, D.C. during this appearance, Pompeo observed that Assange was living under asylum at the Ecuadorian Embassy in London. Pompeo asserted that, “Julian Assange has no First Amendment freedoms. He’s sitting in an embassy in London. He’s not a US citizen.” In so many words, Pompeo was thereby claiming that entities are only eligible for First Amendment protections if:

(1) They are American citizens; or,

(2) They are within the United States.

Assange remains a victim to these arguments to this day, as the publisher undergoes extradition proceedings in the United Kingdom merely for his journalism. But Assange is not a criminal; publishing endeavors of this variety are not a crime. Far from a “terrorist,” he is a newsman. As an entity engaged in the constitutionally protected activity of publishing, the activity that “freedom of the press” protects, he is shielded from victimization by the United States for releasing American state secrets. And this is true regardless of his citizenship or residency.

 

Assange’s Publishing Activities Are Not Criminal:

Since 2006 when WikiLeaks was founded in Iceland, Assange has only engaged in journalism, solely employing standard industry practices. His publishing activities do not constitute a crime.

It is a regular practice for news outlets to report on classified intelligence and to publish sensitive information. It is a regular practice for journalists to encourage their sources to disclose information, regardless of whether it is classified. Only for engaging in these practices is Assange undergoing these proceedings.

Regardless of how standard Assange’s practices in journalism are, too many officials from within the Obama, Trump, and Biden Administrations have claimed that he is not a “legitimate journalist,” or they have expressed similar sentiments. Figuring largely within anti-Assange narratives, President Joseph R. Biden, Jr. once said as he ran for President:

“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.”

Saying this, Biden ignored a secret report issued by the Department of Defense in June 2011, which contradicted claims that WikiLeaks and Assange had caused damage to national security by publishing the classified material with which former United States Army soldier Chelsea Manning provided them roughly ten years ago. Deconstructing the D.O.J. report for Buzzfeed, news reporter Jason Leopold once wrote:

“Regarding the hundreds of thousands of Iraq-related military documents and State Department cables provided by the Army private Chelsea Manning, the report assessed ‘with high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.’”

At the same time, figures within administrations past and present have attempted to delegitimize the journalist by comparable means. Writing for Jacobin Magazine recently, Chip Gibbons (Policy Director at Defending Rights & Dissent) claimed that, “The CIA lobbied the Obama administration to redefine certain figures previously considered journalists as ‘information brokers.’” In the same article, Gibbons continues:

“The 2018 Intelligence Authorization Act, passed by Congress, declared that ‘WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.’”

Thereby, Gibbons argues that Pompeo’s false narrative—and the words around which the former CIA Director partly organized it in 2017—somehow made their way into American law. Once it was codified into law as “a non-state hostile intelligence service,” WikiLeaks wrongly (but officially) became tantamount to a terrorist organization. Legislatively casting WikiLeaks in such a light, the United States meant to augment the appearance of legitimacy in its criminalization of Assange, a publisher that has been nominated for the Nobel Peace Prize countless times and who once said, “If wars can be started by lies, then peace can be started by truth.” But by merely enhancing the semblance of consistency with law, the United States in no substantive or effective way provided a mechanism for that consistency.

As a retired lawyer having practiced First Amendment law for over 50 years and as a former Chair of the ACLU Foundation of Southern California, Stephen Rohde has added to the arsenal of arguments as to the invalidity of claims that Assange is not a journalist. Meeting with me recently to discuss Pompeo’s claims during the CSIS address in 2017, Rohde rhetorically asked, “Is Assange a journalist?” And in a cogent way, he answered:

“US law is very clear. There is no special category called ‘journalist’ for purposes of the First Amendment. The First Amendment protects freedom of the press and freedom of speech. And so, the question always is: was the defendant involved in a process that is akin to any broad definition of the press? We don’t have ‘certifiable’ members of the press. We don’t have a certificate that makes you a journalist.”

Addressing how legally irrelevant the term “journalist” can be in determinations of a publisher’s eligibility for First Amendment protections, Rohde continued:

“I think on the broadest and clearest definition, Assange is a journalist. He is a news gatherer. He’s been recognized as such by a variety of international organizations. He does not have to overcome a separate hurdle to qualify as a ‘journalist’ in order to benefit from the First Amendment to the Constitution. I believe he has those rights, and all of his defenses that he is mounting under the First Amendment apply.”

In other words, claims that journalists are legally identifiable are false, and any integration of such an argument into legal frameworks is problematic. Nevertheless, outside the scope of how legally irrelevant this term can be, Assange has indeed received many awards in recognition of his excellence in journalism. This past February, Consortium News reported that Assange has been awarded The Gary Webb Freedom of the Press Award, as well.

Of equal importance is that although many other news publications and anti-secrecy platforms did just as Assange did ten years ago in releasing the Manning leaks, none of these other publishing platforms have faced the consequences that he has.

 

False Grounds of Pompeo’s Anti-Assange Claims Reiterated:

Pompeo has in part argued Assange’s disqualification from First Amendment protections using an incorrect two-faceted assessment of the journalist’s entitlement to constitutionally guaranteed protections for freedom of the press and freedom of expression:

1. Assange is neither a U.S. citizen nor is residing within the United States; and,

2. First Amendment protections apply only to American citizens and entities that are physically present in the U.S.

Concurrently subject to the legal mischaracterization of “non-state hostile intelligence service,” Assange has been wrongly framed in far too much of American consciousness as a criminal mastermind of global proportions. To reiterate, however, his publishing activities are not criminal.

For roughly two and a half years, Assange has been incarcerated at HMP Belmarsh, a maximum-security prison in rural London, which has been home to some of the most notorious criminals in history, such as “hate preacher” Abu Hamza and serial pedophile Aaron McWilliams. Again, however, Assange is not a criminal. He is a newsman.

Throughout history and regardless of political alignment, newspapers have engaged in the same practices as Assange; while there is no constitutional basis for determining First Amendment entitlement in the way that the United States is doing in the WikiLeaks publisher’s case, esteemed Constitutional Lawyer James C. Goodale has written:

“Not only should the First Amendment apply to the publication by Assange of the Manning leaks—after all such publication was not dissimilar from that of The New York Times, The Guardian, et al.—but it should also apply to the efforts of Assange to obtain those leaks.”

Reminding readers that The New York Times, The Guardian, and many other news publications released the diplomatic cables just as Assange did, Goodale continues:

“There should be no question whether Julian Assange is entitled to full First Amendment protection for publication of the Afghanistan war logs, Iraq war logs, and State Department cables for which he was indicted on 11 April 2019 and on 23 May 2019.”

In New York Times Co. v. U.S., Goodale represented NYT as it challenged and prevailed over the U.S. government’s petition before the Supreme Court to enjoin the newspaper from releasing The Pentagon Papers, a classified and damning study of America’s involvement in Southeast Asia from the mid-1950s thru the late-1960s.

 

Precedent Protects Publishers that Release Classified Information:

When in the early-1970s The New York Times released The Pentagon Papers, the U.S. government failed in its petitioning the Supreme Court to sustain an enjoinder against the newspaper from publishing the nearly 9,000 pages of classified material.

Speaking for the majority in New York Times Co. v. U.S., Justice Hugo Black rejected the government’s request, saying that publishing even state secrets is at the heart of true representative government. Justice Black argued that only a thoroughly educated public may engage meaningfully in the democratic process and forestall abuses by its government. Quoting James Madison, Justice Black said:

“’The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.’”

Emphasizing that the press is meant to be a protective mechanism against governments’ abuses of their citizens, Justice Black continued:

“The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”

As a result, in the wake of New York Times Co. v. U.S., it is entirely illegitimate that the United States government is pursuing Assange; precedent protects publishers, and Assange is a publisher. In its non-observance of precedent, the United States and figures like Pompeo are undermining the democratic sanctity of the press. By extension, they are undermining democracy.

Facing 175 years in solitary confinement at supermax prison ADX Florence in Florence, CO, Assange remains a victim of Pompeo’s legal charlatanism as to why America’s persecution of him is justifiable. Figures across the political spectrum no longer emphasize only that Assange has allegedly committed 17 violations of The Espionage Act of 1917 by publishing American state secrets and one violation of The Computer Fraud and Abuse Act of 1986 by allegedly assisting Chelsea Manning in accessing files beyond what her security clearance permitted her to view. Pompeo’s citizenship argument has wrongly taken on greater weight, as well. Alluding to the glaring deficiencies in such an argument, Rohde said, “I would never rely on Mike Pompeo for accurate interpretations of Constitutional Law.” Contradicting Pompeo, Rohde asserted that, “In my view, the protections of the Constitution attach to the prosecution, irrespective of the residence or citizenship of the defendant.” Rohde continued:

“Having indicted an individual and purporting to bring him to a US court for the purpose of conducting a prosecution under the Espionage Act of 1917, I believe every defendant in that circumstance would have the right to invoke every legal protection available in that courtroom. And that would include the United States Constitution, it would include the First Amendment, it would include all other due process and legal defenses available to that person under American law, and possibly international law.”

Whatever the case may be, Rohde ultimately broadened the scope of what is at stake in the Assange case, when he surmised that, “The bigger question might be, was there jurisdiction to indict Julian Assange in the first place? What is the extraterritorial reach of the Espionage Act of 1917?” Pointing again to how the U.S. government is undermining itself, he asserted:

“I do not believe the government can have it both ways, that they reach out extra-territorially, to an individual residing in England and then deny him the legal protections in the country that issued that indictment.”

 

Conclusion:

A few months ago, a British court permitted the United States to proceed in its appeal of Judge Vanessa Baraitser’s January 2021 decision to block Assange’s extradition, as she expressed concerns that he would likely succumb to suicide if incarcerated in the brutal conditions of an American prison. When Rohde referred to Assange as a “newsgatherer” and “publisher” entitled to First Amendment protections, he shed light on how much of a threat to press freedom Judge Baraitser’s decision may nevertheless still be; she did not reject the United States government’s request in recognition of the constitutional legitimacy of Assange’s publishing endeavors. And so, the threat to freedom of the press persists, as American Exceptionalism continues to prevail.

In its arbitrary statutory redesignation of a publishing platform (WikiLeaks) as “a non-state hostile intelligence service” in 2018, and in its abuse of false First Amendment jurisprudence, the Trump and Biden Administrations are replete with officials that pervert the bases for American law and government that the Founding Fathers put forth.

In so many ways, America remains far from the emblem of democracy it markets itself to be. According to the WikiLeaks source mentioned earlier, Trump effectively received immunity from conviction in a possible second set of impeachment hearings only if he omitted Assange from his list of pardons. Years prior to that ill-fated day this past January, when Assange was condemned to rot even longer in prison, the CIA hubristically planned to assassinate or abduct the journalist. And the overwhelming volume of politicians, such as Pompeo, that seem interested only in perpetrating chicanery on the American people should offend even the most callous of heart.

Copyediting by Victoria Frances Dekoker & Henry Stillwell

Contact the Author at: [email protected]

Twitter: @TheReframerOrg

Photo Credit: WallsDesk.com

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