Pentagon Papers lawyer: The indictment of Assange is a snare and a delusion

The Justice Department made its indictment of WikiLeaks founder Julian Assange public on Thursday. The press breathed a sigh of relief: The indictment did not directly raise the question of the application of the First Amendment to the Espionage Act.

The indictment is, however, a snare and a delusion. It is surprisingly spare and seems to have been written with a particular purpose in mind — to extradite Assange from England. Once he is here, he will be hit, no doubt, with multiple charges.

{mosads}Under the U.S.-U.K. extradition treaty, one cannot be extradited from the United Kingdom if the extradition is for “political purposes.” This explains why the indictment does not contain any charges alleging that Assange conspired with the Russians to impact the 2016 presidential election. It may also explain why the indictment focuses on hacking government computers rather than on leaking stolen government information, in as much as leaking could be characterized as being done for political purposes.

When Assange arrives in the United States through extradition, as many expect he will, the government will then be able to indict him for his participation in that election. It is not out of the question that the government will come up with additional charges against Assange.

While it is true, as others have noted, that the government has not charged Assange under the Espionage Act — against which Assange would have the strongest defense under the First Amendment — the government has alleged that he and Army intelligence analyst Chelsea Manning participated in a conspiracy under the Espionage Act. (For the legal eagles, you can see this on Page 5 of the indictment, referring to Title 18 U.S. Code, Sections 793(c) and 793(e).)

I have some familiarity with Section 793(e) because, in 1971, it was the basis on which the government enjoined the New York Times from publication of the “Pentagon Papers” for 17 days, until the U.S. Supreme Court decided that such an injunction violated the First Amendment. I was then vice president and general counsel of the New York Times and led the team of lawyers who defended the Times in that case.

References to a conspiracy under the Espionage Act in the Assange indictment raise the question of whether the U.S. government is going for a bait-and-switch — get Assange past the English courts and to the United States, only to charge him with espionage when he is on American soil.

It is true that the extradition treaty states that a defendant cannot be prosecuted for any offense other than that on which the surrendering country agreed to extradite. But the treaty excludes from this rule any charges “based on the same facts as the offense for which extradition was granted.” And so, while the indictment makes out a case for espionage without charging it, the government has laid the groundwork to get around the rule that Assange be charged only for the offenses already stated.

{mossecondads}The U.S. government has attempted to divert attention from the basic fact that this indictment punishes the publication of truthful information by making it seem that Assange “cracked” a code to permit Manning to have access to further classified information, which Manning in turn then could leak to Assange. That’s not what the indictment says. It says that Assange told Manning how to cover her tracks with respect to her leaks so the government could not catch Manning.

Can a journalist instruct his source in a manner which will permit the source to escape identification? The answer is, generally speaking, yes — but whether it applies to news-gathering in the Digital Age, using the computer, will be the question in this case. More details will be needed to answer this question.

If Assange is found guilty of conspiring with Manning under this indictment, which incorporates the Espionage Act, this will be a blow to the First Amendment. It will criminalize the news-gathering process and will be a precedent for future cases concerning leaks. This will be particularly so since substantially all leaks in the future will be computer-generated. 

And so, while the indictment by itself is bad enough, there still is more to come, such as further indictments of Assange. All we are seeing now is the tip of the legal iceberg.

James C. Goodale was the vice chairman and general counsel of the New York Times and is the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and other battles.”