Scott Horton Show - Just the Interviews - 9/21/23 Trevor Timm on Assange, the Espionage Act and Growing Pressure from the Australians

Episode Date: September 24, 2023

Trevor Timm of the Freedom of the Press Foundation joins the show to give an overview of the U.S.’s case against Julian Assange. They look back at why Obama was uncharacteristically reluctant to charge Assange. That brings them to the current case, brought by the Trump Administration and continued by Biden. They explain the case, debunk the common characterization of Assange as a hacker and finish with a quick look at why Australian officials may be the best chance for an Assange pardon.  Discussed on the show: “Prosecuting Assange threatens press freedom. US officials should not need the Australians to explain that to them” (Freedom of the Press Foundation) Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a journalist, activist, and lawyer whose writing has appeared in the New York Times, The Guardian, USA Today, The Atlantic, and many others. Follow him on Twitter @trevortimm. This episode of the Scott Horton Show is sponsored by: Tom Woods’ Liberty Classroom; ExpandDesigns.com/Scott. Get Scott’s interviews before anyone else! Subscribe to the Substack. Shop Libertarian Institute merch or donate to the show through Patreon, PayPal or Bitcoin: 1DZBZNJrxUhQhEzgDh7k8JXHXRjY Learn more about your ad choices. Visit megaphone.fm/adchoices

All right, y'all, welcome to the Scott Horton Show. I'm the director of the Libertarian Institute, editorial director of anti-war.com, author of the book, Pools Aaron, Time to End the War in Afghanistan, and the brand new, enough already, time to end the war on terrorism. And I've recorded more than 5,500 interviews since 2004. almost all on foreign policy and all available for you at scothorton.4 you can sign up to the podcast feed there and the full interview archive is also available at youtube.com slash scott horton's show all right you guys once again for the first time in a very long time i have on the line trevor tim he is the executive director of the freedom of the press foundation and they have the excellent URL freedom dot press welcome back to the show how you doing Trevor thanks for having me back

scott it's good to be back yeah man good to have you here and um well what a great site you guys have here i've been trolling through it this morning you got lots of great stuff but of course i want to talk with you all about julian asange who's julian asange and why should anyone listening to this care about that well i'm guessing most of your listeners know who julian Sanjas, but for those who don't, of course, he is the founder of the whistleblowing and transparency site WikiLeaks, which started back in 2007, 2008, and most famously released hundreds of thousands of war logs from Iraq and Afghanistan in 2010 and then State Department cables that same year. And for the past few years, Julian Assange has been locked up in Belmar prison in London,

awaiting extradition to the United States because the Trump administration decided to charge him with 17 counts under the Espionage Act for publishing government secrets. And if people are not paying attention to it now they will soon be because it is very likely that in the next six months or so julina asange may be exurgated to the united states and there will be a huge trial that will not only decide his fate but could decide the fate of press freedom in this country all right now we could do a whole show about the heroism of julian asange and the importance of the leaks that he has published but we've done that before people are just going to have to check the record. But what's important here is what you just said about what it means for

everybody else. What is the big deal that makes this case so important compared to the government picking on everybody, which they do all the time? Well, you know, I think it's first important to acknowledge that Julian Assange is a controversial figure, very controversial figure in the United States. There are a lot of people that acknowledge and, you know, say, that he's a hero. There are a lot of other people who think he is some sort of villain character for the role that WikiLeaks played in the 2016 election. And, you know, there's also Republicans that hate him too. He is a widely reviled person in D.C., which is part of the reason why the Justice Department probably thinks that they can get away with this case. So, you know, as a press

freedom advocate i have long been worried um about the espionage act the 100 year old law um pastor in world war one to go after um dissenters and uh anti-war activists which is still somehow on the books and has never been ruled unconstitutional um i've we've long been worried this could be used against reporters reporters who go and talk to sources within the u.s government that get so-called classified information, and then who publish it on the front pages of our nation's newspapers. The worry has always been the government could use this law to put those journalists in jail. So far, they never have. There's been a bunch of close calls, but they've never fully done so because they have partly been worried about the backlash, and partly they probably know deep down

that it violates the First Amendment. Now, what they have here is this controversy. figure who people argue over, is this person a journalist? Is he not a journalist? And the Trump administration, who of course had had no qualms about protecting journalists rights or violating journalists rights, I should say, brought these charges where even the Obama administration wouldn't. And we have a situation now where the Biden administration is continuing this case, which the Trump administration first brought. And we could end up with a situation. situation where essential acts like speaking with a source, asking the source for more information, receiving documents from a source and publishing those documents actually becomes outlawed.

That's the danger with this precedent that, you know, whether you think Julian Assange is the best journalist in the world, the worst journalist in the world, or no journalist at all, what he was engaging in were acts of journalism. And if those acts of journalism can be outlawed or ruled illegal by a jury and a judge, then those same acts of journalism when you're at the New York Times and Washington Post can just as easily be outlawed as well. And so that is the worry that essentially... Are you trying to talk me into it now? I'd like to see... I'd just like we'd like to see terrible things happen to the guys at the Post and the Times.

they're the worst it's the other people I'm concerned about but no I hear you and I'm just joshing around listen there's so many things I want to go over here or ask you about here so first of all what in the world

does the Espionage Act or the First Amendment have to do with this Australian right how do either of these things apply to this guy and then also if I remember it right

and I do Barack Obama prosecutor more leakers under the espionage act than every president from Woodrow Wilson through W. Bush that came before him. And so there must have been some real important reason, Trevor, that I'm trying to understand why Obama would not go so far as to go ahead and indict this guy who his government obviously hated so much. And then also, I guess, if you could address the fact that Donald Trump supposedly was this wild aberration. I mean, you listen to these people, tell it, it was the Russians who installed him in power and everything anyway. So if Obama

wouldn't indict him and this wild Tasmanian devil character who never belonged in the presidency at all, Donald Trump was the one who indicted him, then why wouldn't Joe Biden and the Democrats just throw that right back out again? All good questions. Well, let's take him one at time. We can start with Obama. You're right. Obama prosecuted more whistleblowers than all other president's combined, at least at the time. Donald Trump gave him a run for his money a few years later. But still, it was a betrayal of what Obama promised during his initial campaign in 2018. Yet still, all of the whistleblowers and sources of journalists that Obama prosecuted were quite distinct from Julian Assange because they were all government employees. They had all

signed secrecy agreements. And, you know, essentially the government has a much different relationship with them than they do the rest of the citizens. They have more power over their own employees. Now, that's not to say that Obama's prosecutions of all these whistleblowers wasn't horribly wrong. It was. But the law treats them much differently. You know, the generally courts have allowed, even though it's appalling, the government to prosecute the sources who are the government employees. But once journalists receive that information, even if it's stolen, even if they know it's been stolen, as long as they themselves did not directly participate in the stealing of documents, journalists have a First Amendment right, which the Supreme Court

has said over and over again to publish these documents. And so Julian Assange fits in that part of the equation. He was, of course, never a U.S. government employee. He talked to U.S. government employees and published documents from them. So he has the same rights as any other journalists does. Now, you asked about his citizenship in Australia and the fact that he was in different countries. You know, this is actually an argument that the people who hate us on bring up all the time. They're like, oh, well, he doesn't deserve First Amendment rights. He's Australian. in. Well, the good thing about our Constitution is that it doesn't just apply to U.S. citizens. It applies to, first of all, anybody who is in the United States and anybody who is outside

the United States with which the U.S. government is trying to prosecute. So, you know, when people make this argument, they barely think about it at all because, of course, you know, the idea that the U.S. government could prosecute whoever they wanted outside the United States, bring them to the United States, and that person wouldn't have constitutional rights, that they wouldn't, you know, have access to a lawyer, that they, you know, could be, essentially, you know, all of their belongings could be seized without a warrant, that they could be tortured. Now, you know, now that I'm saying this, it sounds like the U.S. government has made these arguments in the past, but surely they have. But it should go without saying that,

everybody, no matter who they are in the U.S. courtroom, has the same rights. And so Julian Assange has those same First Amendment rights you and I do to have this conversation right now. And what the U.S. government is trying to do is curtail those rights, which would then curtail the rights of everybody else. And in the words of the law, he's, as long as it's the executive branch of the U.S. government reaching out to touch him, the DOJ, trying to take custody of him, then that makes him a U.S. person, which means he's just as protected in his rights as me, supposedly. Is that right? Absolutely. Okay. And then so, and now what about the part about where Trump is this

aberration? He did not belong there. That was Hillary Clinton's rightful throne or maybe Jeb Bush's. But whatever he did ought to be null and void according to the narrative of the entire American political establishment. So how come not in this? case when again even Obama wouldn't go this far and he loved going that far yeah i mean in the obama you know as you alluded to before the Obama administration naturally they hated julian asanj right like the biggest releases um in the history of wiki leaks happened during the obam administration they were a giant headache for the obama administration and you would think if anybody would want to prosecute wiki leaks it would be them well well we know their justice department

looked at it closely. This was all reported on in the Washington Post. Their Justice Department looked at it closely and there were lawyers within and even the attorney up until the attorney general said, we can't prosecute WikiLeaks without violating the First Amendment. We can't prosecute WikiLeaks without making the New York Times or any other newspaper in the United States vulnerable to prosecution too. And so they ultimately declined. Trump dusted off that indictment or that that research and decided to flip it on its head and indicted julian asange more almost 10 years after the releases in 2010 and 2011 for that same for those for the same thing the Obama administration declined um and you would think that if the Biden administration was

actually serious about its commitment to press freedom which it's stated multiple times that they would take a look at this case and they would they would drop it now you know the bide administration hides behind well we don't interfere in justice department policy and the justice department hides behind you know the fact that's well we brought this case before so you know we're not just going to drop every single case that the other administration uh brought and that we still believe in press freedom um which you know is hard to take them at face value because we know they're There are even Justice Department lawyers in the Justice Department during the Trump administration who thought this was going to violate the First Amendment. That played out in the media as well.

And so they are playing with fire here. You know, thankfully the Biden administration, besides this glaring omission, has been relatively good on press freedom. You know, we haven't seen them really bring leaked cases like the previous two administrations. They've changed their guidelines to make it harder for the FBI to spy on journalists. But it doesn't even matter. Like say you trust Biden 100%. You've never loved the president more than Joe Biden. You know he would never do that to journalists.

Well, we know that the parties in the White House switch spots at least every eight years, probably every four years. And Donald Trump, for example, who, you know, has made a career of saying journalists are the enemies of the people and that he wants them in jail. well, you're just handing him the keys, the perfect way to throw all the reporters that he doesn't like in jail and then vice versa for the Democrats. So, you know, this is a monumental mistake that could have ramifications for years and decades to come to actually goes through. Yeah. And, you know, you would think that the conservatives would have learned the lesson when they got Homeland Security and the FBI going after them for their politics. that whose Homeland Security and FBI departments and agencies are these, right?

I mean, it's a great point. Like, why would Republicans want to give Democrats or Democratic Justice Department that power to go after, you know, conservative or libertarian journalists, you know? Like we saw, for example, during the Obama administration, they, in one indictment, they called a Fox News reporter and unindicted co-conspirator under the espionage act, which is just one small step away from, you know, actually charging somebody from Fox News. And that was total BS, right? Like it was just straight.

He did a good news story about developments in Korea. Yeah, yeah, exactly. He was being a reporter. He was being a reporter talking to a source. You know, and so it's, it's, you know, it's certainly I think that people who are afraid of a second Donald Trump administration should be incredibly worried about this, but I think people from all political parties should be very worried about this, because the First Amendment is there as a safety valve, a last resort piece of accountability, when the rest of the government breaks down, we can still have private citizens

who can expose these secrets. And if that is destroyed, then, you know, whether you are on the right or on the left or anywhere in between, our way of communicating and holding our government accountable is also destroyed. Hang on just one second. Hey, y'all, the audiobook of my book, Enough Already. Timed and the War on Terrorism is finally done. Yes, of course, read by me. It's available at Audible, Amazon, Apple Books,

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Hey, so tell me this. Before, I guess, you know, they've had a few of them here and there. There's Ellsberg, of course, and a couple others. But before the modern era of, you know, the Terror Wars, W. Bush and Obama especially, how do they handle leak? Because it seems like espionage, I mean, that means spying on behalf of an enemy. There must be other laws that they can use against these people when they leak to reporters in violation of their secrecy agreement. Is there some kind of substantive reason I should understand why they're using the espionage act? Never even mind against Assange here, but even let's say against Drake or any of these other guys who were government employees and leaked to the media, Thomas Tam or one of those guys. It's a great question. You know, I think partly they're using the Espionage Act because it's this incredibly broad law. And it really ties the defendant's hands behind their back. Like, you know, we talk about fair trials in the United States. I mean, it just makes the trial totally unfair. So for example, say you were a whistleblower who saw the government engaged in blatantly illegal conduct. And you go to a journalist and you give them the information and they publish it. The government can prosecute you and they could say, you are not allowed to tell the jury your motive for leaking this information. So you couldn't tell the jury that, oh, I saw the government doing something illegal and I wanted to, I was being a patriot and I wanted to make sure that they were held accountable.

That would be ruled inadmissible. The only thing that matters is if you leaked it to him. It doesn't matter why. And so this, you know, basically destroys the defense of all of these whistleblowers because, you know, they would like to admit. they actually did this. But they would like to tell the jury why. And, you know, we have a situation where, you know, the government doesn't actually need to prosecute these, these leakers and these whistleblowers to, you know, uphold secrecy. I mean, just think about how they've done it in the past. You're right before Ellsberg and even decades after Ellsberg. There was no prosecutions

under the Espionage Act because they can easily punish people by firing them by ruining their careers. Even, you know, getting investigated ends up costing these government employees. Well, but are there. Are there other laws? Are there other laws, though, lesser than the Espionage Act that they were previously prosecuted under? Not really. There was, there's never been a, there's very specific laws. So if we're talking about communications intelligence or we're talking about nuclear secrets. um there's very specific laws around uh that kind of information but basically they like using the espionage act because it's this catch-all um that allows them to essentially do whatever they

want um there are there are a couple statutes that like theft of government information and things like that um that they could potentially use and have you know occasionally used um in the past along with the espionage act but you know thankfully in this country we've never had an official Secrets Act. You know, the classification system is just done by executive order. That's why it doesn't apply to United States citizens. It only applies to U.S. government employees. The executive branch can only really totally rule over its own employees without getting Congress involved. And so, you know, the government has plenty of tools at its disposal to keep its secrets. It shouldn't have to, you know, declare its employees spies to do so. Yeah. All right. Now, so I know you're a

lawyer and good at this stuff, and there's a couple superseding indictments or one indictment and a superseding one. And somebody listening to this is going to say, but listen, the New York Times test does not apply here because Assange went further than an investigative journalist does. He helped Manning hack DOD computers. and get those files. And so that makes him a stealer and a leaker, not just a leaky, and a publisher. And so everything you just said is null and void. What about that?

Well, it's a great question because this is what, this is kind of the magic trick for the sleight of hand that DOJ has tried to do. And their press release, they say, oh, Julianne's song is a hacker, not a journalist. So when you look at the indictment closely, there are 18 charges in the indictment. 17 of them are espionage act related and one of them is this sort of conspiracy to hack or conspiracy to commit computer intrusion charge um so all of the actions uh that are that are involved in the 17 espionage act charges have nothing to do with hacking so all of the documents that julia asange got from chelsea manning uh the u.s government doesn't even allege that that he uh hacked

at all. Those were all documents that Chelsea got herself that she gave Julian under her own free will and they had conversations about them. Only after the fact, there was this one incident, like after Julian had already gotten all the documents, where they had discussed trying to help Chelsea mask her identity by gaining access to the doc, the same type of documents in a different realm. There's also like a whole, they try to throw a whole bunch of stuff against a wall involving other incidents that have nothing to do with this case, involving an FBI informant. But that's either here nor there. Like I think the hacking charge is weird and it's weak. It wouldn't necessarily imperil journalism.

But these 17 other charges have zero to do with any sort of hacking allegations at all. And the U.S. government is essentially trying to take that one conspiracy. to hack charge and mask all these other charges with it. And then if I understand it right, even from the information in the indictment, it's clear, or maybe not just from the indictment itself, but from journalism and the rest of information out there about this, that in fact, whatever testimony, I guess, that he didn't hack anything at all, right? He tried to give Manning, tried to, I forgot exactly what it was.

Maybe you remember the details better, but it was nothing like, you know, let me crack that password for you so you can steal more data for me or anything like that would have been sort of the accusation. But the facts really are nothing like that, right? They had a single conversation about this, which again happened after Chelsea Manning had already given WikiLeaks everything and they had already had all their conversations and nothing actually came of it. So none of those documents that the WikiLeaks published were taken by hacking involving WikiLeaks at all, even the U.S. government. And then Trevor, in that conversation, is that what they were talking about, how to get more data? Or I thought it was more about covering Manning's tracks. It was very vague. You know, basically it seemed like Chelsea wanted to hide her tracks because she didn't want people to catch her.

And so she was trying to figure out, oh, can I log in through another name and hide my identity? And, you know, they allege that Julian or somebody at WikiLeaks offered to help with this, but then, you know, nothing ever came to it. I mean, so that's huge right there, right? All this was was a theoretical discussion of some OPSEC that they never did. And the government doesn't even know who was on the WikiLeaks side of the chat. Right. Great indictment, guys. Yeah. Exactly. And the rest of whatever, whatever they're saying about the espionage act and the espionage act charges has nothing, it doesn't even have to do with that conversation. It only has to do with Julian Assange speaking with her on encrypted messaging service and asking her questions and receiving the documents, which of course, that's conduct that journalists engage in every single day.

Yeah. All right. Now, Trevor, look, you know, this show is mostly about. bad things the U.S. government does elsewhere in the world, of course. But one thing that America has been very good on just because they have to, because Madison made it this way, is freedom of speech. And even though they're very cynical in the way that they, you know, criticize other countries for violating their citizens' rights, they got a leg to stand on here, usually, mostly. And I read in this piece that you have up at your site here, I'm sorry, let me say the guy's name. Seth Stern wrote this piece here and he mentions how

one, we can't really say anything or everybody just laughs when America criticizes the Russians for kidnapping this Wall Street Journal reporter which I don't know the facts of the case but they're not going to use a Wall Street Journal reporter as a knock you know that's a non-official cover

spy over there they're not going to do that that just sounds wrong but the Americans can't really say much about And then I think he says in here that the Chinese are even citing America's prosecution of Assange to say, see, it's okay if we do it too. Even the Americans do it. Yeah, it is just totally hypocritical when we're going around. And, you know, as much as I'm, I've criticized the U.S. government all the time, they can do a lot of good work abroad promoting free expression. But when they turn into, you know, the biggest hypocrites in the world where they're prosecuting somebody. for publishing documents under espionage. But then they're saying, oh, you know, the reporter in Russia, who's charged with espionage act was just doing their job as a reporter,

you know, it rings really empty, which, by the way, is all true. The Wall Street Journal reporter who is being held in Russia right now in jail for espionage charges, there is absolutely zero evidence that he was doing nothing other than doing his job. And it's outrageous that Russia, is holding him. But it's just as outrageous that the U.S. is trying to pull this off here, and it makes their efforts to try to free this reporter just ring completely hollow and makes them look like hypocrites. And so, you know, the best thing they could do for this Wall Street

Journal reporter who's in jail in Russia or any other journalists who China might want to throw in jail is to drop these charges against Julian Assange and say, look, hey, we're at least living, trying to live by our values here. We're not being complete hypocrites. Yeah. All right. And one last thing here real quick, which is sort of the lead that we buried to the very end here, which is Australian politicians are finally getting the gumption to try to say and do something about this. Do you think there's a real chance that Julian would be set free? You know, it's really fascinating because, you know, here in the United States, it's hard for us to gauge Australian news. But when you talk to people on Australia, this is

front page news all the time. And you'll notice when you look at the political parties of the politicians that come over here this week, it's every major political party in Australia. So it's not just like the Green Party or the far right party. It is the Labor Party, the mainstream conservative party across the political spectrum. It's because Australians are basically united. I saw one poll that was like 88% of Australians believe that Julian Assange needs to come back to Australia and the U.S. needs to drop the charges. So these politicians have been hearing from their constituents and are over here because they're responding to them. You know, next month, the Australian Prime Minister is coming over here for a state visit. And so that should be really interesting.

And it really seems like the Australian government is starting to put more and more pressure on the U.S. government to bring an end to this case, given it involves, you know, one of their citizens. Yeah. All right. Man, you're great. Thanks so much for your time on the show again, Trevor. It's great to talk to you. Yeah, thanks for having me. Scott. Talk to you soon. All right, you guys. That's Trevor Tim. He is the executive director of the Freedom of the Press Foundation. Their website is freedom.com. And check out this great piece by Seth Stern over there. Prosecuting Assange threatens press freedom. U.S. officials should not need the Australians to explain mat to them. The Scott Horton show, Anti-War Radio, can be heard on K-P-FK 90.7 FM in LA.

APSRadio.com, anti-war.com, Scotthorton.org, and Libertarian Institute.org.