The Daily - The Long Shadow of Julian Assange’s Conviction

Episode Date: August 1, 2024

Warning: this episode contains strong language and audio of war.When the long legal saga of Julian Assange, the WikiLeaks founder, came to an end this summer, it marked the first time that the U.S. government had convicted anyone for publishing classified material.Charlie Savage, who covers national security and legal policy for The Times, discusses what the conviction means for journalism and government accountability in a world where publishing state secrets can now be treated as a crime.Guest: Charlie Savage, a national security and legal policy correspondent for The New York Times. Guest host: Natalie Kitroeff, Mexico City Bureau Chief for The New York Times. Background reading: Mr. Assange’s plea deal sets a chilling precedent on the ability of journalists to report on military, intelligence or diplomatic information that officials deem secret.To some, Mr. Assange was a heroic crusader for truth. To others, he was a reckless leaker endangering lives.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Natalie Kittroff, and this is The Daily. When the long legal saga of WikiLeaks founder Julian Assange came to an end this summer, it marked the first time that the U.S. government had convicted anyone for publishing classified material. In the weeks since, my colleague Charlie Savage has been thinking about what that conviction means for journalism and government accountability in a world where publishing state secrets

can now be treated as a crime. It's Thursday, August 1st. Charlie, Julian Assange, once a household name, really faded from public view over the last few years. And then he roared right back into it with a guilty plea a few weeks ago. You've covered him this entire time. How were you thinking about him and his legacy when that guilty plea came down? So Julian Assange is one of the most interesting people of our times,

and his saga is an extraordinarily complex and twisting one. Who he is or was, his status evolved over time. Was he the radical internet-based transparency extremist who facilitated the publication of leaked government U.S. documents bringing huge amounts of information to the public about how the world really worked? Or is he the guy who published Democratic emails in 2016 that had been hacked by Russia as part of a covert intelligence operation to help Donald Trump win that election. And really, from my point of view, as someone who's interested in journalism and press freedoms, it doesn't really matter who he was because he became the first person in the history of the United States to be convicted of violating the Espionage Act

as someone who gathered and then disseminated to the public information that the government wanted kept secret. And so his case ends with establishing a precedent that will be very important for investigative journalism, especially in the national security sphere, going forward. Okay, I just want to unpack what you said. Many people may not view Assange as a journalist in the traditional sense, but because he pled guilty to a crime that involved disseminating government secrets to the public, that word disseminating is key. It's something journalists do all the time. This case could affect journalists writ large. Is that right? That's right. And we're talking about government secrets in the realm of national security. So we're talking about journalists' ability to report and really the

public's ability to know what are arguably the government's most consequential activities. I mean, we're talking about how it wages war, where it sends weapons, how many civilians it kills in foreign countries, and what it does at home to police its own citizens in the name of national security. Absolutely. There's this whole category of extremely high-stakes information

that sometimes voters really do need to know about for self-government to function. And this step is the latest development in a longer story that goes back decades in how the government has been trying to use criminal law to protect information it does not want the public to know about. So tell us that story of how we got here. Well, it starts with a law called the Esp to know about. So tell us that story of how we got here. Well, it starts with a law called the Espionage Act, and it was enacted during World War I to go after spies.

And it makes it a crime for someone who does not have authorized access to government information about national security to hold on to that information or to give it to someone else without authorization. But the words of the law go beyond spying for a foreign government. On its face, this law could apply to ordinary people who are disseminating information not for the purpose of helping a foreign power, but for educating the public. Leakers. Whistleblowers. Now, for most of the 20th century, the government did not try to use this law as a way to suppress leaks. But things start to change in the 21st century.

Starting midway through the Bush administration, this is the period after the 9-11 attacks, there's all kinds of, you know, national security things going on, all kinds of secret things going on that sometimes reporters find out about. The Justice Department in this era starts to get tougher on leaks. They begin charging government officials with unauthorized disclosures of information under the Espionage Act and arresting them. And that new pivot against leakers continues through the Obama administration.

And so it's not really a partisan thing. It is a Justice Department, national security, bureaucracy thing. And how are the leakers defending themselves against these charges? The thing about the Espionage Act is that it is a pretty draconian law written for spies. And so all that matters is, did you, without authorization, acquire, retain, or disseminate national security information that could be used to harm the United States or aid a foreign adversary? And so each act that fits in that category carries its own prison sentence of up to 10 years. And the way the law is written,

the defendant is not allowed, not allowed to say to the jury, you should acquit me because this disclosure was in the public interest. It's just not relevant whether you were trying to spy for a foreign power or educate the public. The question is just, did you mean to do it? And if you did, you're guilty. And so a pattern emerges because it's so hard to defend yourself against this charge, and because the penalties are so steep, defendants start to plead out. The government says, we'll make this case go away. You go to prison for 18 months or two years.

And defendants, over and over, plead guilty because they don't want to take the risk of a very long sentence. And these defendants at this point are still leakers, right? I mean, we're not yet talking about the government targeting people who publish the information from those leaks, like journalists, right? Yeah, there had not been any case in which the government tried to use the Espionage Act against people who are actually gathering and publishing information. Of course, the words of that statute going back generations on its face do seem to apply to newspapers and journalists who

might do that sort of thing. But there had been a constitutional norm at a minimum, a consensus that applying the Espionage Act to journalistic acts would be a violation of the First Amendment. Congress should make no law impinging on the freedom of the press. And so no government had tried to do so. And this is the world in which then WikiLeaks arrives on the scene. Tell us about that. So Julian Assange founds WikiLeaks in 2006. So these are, as far as we can tell, classical whistleblowers. He's a computer specialist from Australia. And we have a number of ways for them to get information to us. So we use this state-of-the-art encryption to bounce stuff around the internet to hide trails. And the notion behind WikiLeaks

is they're going to use technology and the growth of the internet to solicit and publish secret government documents of public interest from anywhere in the world. So information that organizations are spending economic effort into concealing, that's a really good signal that when the information gets out, there's a hope of it doing some good.

They go on to set up servers in places like Iceland and Sweden and at one point are calling themselves the first intelligence agency of the people. But they remain relatively obscure outside of this sort of hacker community, perhaps, until 2010. When they unveil an extraordinary and quite graphic video from an American attack helicopter. American attack helicopter. In which the U.S. helicopter kind of coldly guns down this large group of people on the street of

Baghdad. Including, it turned out, a Reuters photographer. And then some people pull up to try to It turned out a Reuters photographer. You are a bongo truck picking up the bodies. Request permission to engage. And then some people pull up to try to help those people who have been shot. Claire, come on. They are also shot. And a colleague of mine writes about it. But it turns out that the group itself and Assange as its leader have much more to offer.

And they start reaching out to major news organizations, including the New York Times, The Guardian, Der Spiegel, Le Monde, and say, we've got all this stuff. Would you like to look at it? And you can write stories making sense of it, synthesizing the news you find in it. We will publish the documents and we'll time this together. So they partner with the New York Times and other news organizations for what turns out to be this geyser of information. WikiLeaks leaks again.

They have been posting more and more major stories that have been breaking news. It's not one secret coming out. It's like all the secrets coming out. Right. It's the biggest leak in U.S. military history. 92,000 classified documents published. Huge archives of incident reports from the Afghanistan war and then the Iraq war. What Assange says is evidence of possible war crimes by U.S. soldiers. And then later, they also turn out to have a quarter million diplomatic cables sent to the United States

from American embassies from all around the world. The documents contain candid assessments and embarrassing anecdotes from U.S. and they also turn out to have stunning new revelations about the detainees at Guantanamo Bay, courtesy of WikiLeaks. Intelligence dossiers about what the military believed to be the case about the hundreds and hundreds of men that were being held without trial at Guantanamo. The Pentagon's pouring over these leaked documents in an attempt to assess any potential damage to security, and they're in a desperate search for the leakers themselves. And at first, it's not clear where it's coming from.

Julian Assange is the face of this. And he's just soaking up the notoriety as the U.S. government is increasingly freaking out. But the Pentagon is focusing its investigation of the leak on a 22-year-old Army private. Officials believe the source of the leak is a U.S. Army analyst who was recently arrested in Iraq. It turns out that one person was the source of all this stuff. Chelsea Manning had been deployed in Iraq as an analyst at a forward operating base where she had access to a classified computer network that she needed

to do her analytical work. And she had copied these vast archives of documents. And then she had turned to WikiLeaks and started sending what she had to Julian Assange. Charlie, you were one of the reporters at The Times, right, back in 2010, Charlie, you were one of the reporters at The Times, right, back in 2010, I am writing a story about how the Drug Enforcement Administration has hired all these Navy SEALs to go into small Central American countries and assist local security forces as they battle drug cartels. And there had been an incident in Honduras that had gone wrong, where the DEA had shot up a boat that turned out to be probably full of civilians.

Wow. I'm writing about that, and that has opened a window onto the fact that this program exists at all. But that's all I know about. I know about the thing that happened in Honduras. And the WikiLeaks disclosures of a quarter million diplomatic cables, there was just so much there. Suddenly, it's like, oh no, this same program has been operating throughout Latin America. They've got deployments in Panama and in Haiti and in Guatemala. And you could see that we had a pinprick window onto one thing that rose to the headlines, but it was actually part of an operation that was spreading rapidly through Central America,

of an operation that was spreading rapidly through Central America where special forces guys rebranded as drug agents were increasingly going into jungles, getting into firefights, and killing people, and the public didn't know about it. I mean, it's just a remarkable set of facts that you're talking about that may never have come to light without these cables. And what it shows is that there is a real power here in this information, which I've used in my reporting too, that these leaks help you establish a pattern of actions on the part of the government.

I mean, you, in this case, knew about one deployment. And then you're immediately able to show that it wasn't just a one-off, that this had happened over and over again. Yes. It's a different world of journalism where normally you are struggling and fighting and clawing with your sources to learn one particular thing. And that particular thing is newsworthy and you write a story around it. And it was like, here's all the things at once. Even if a lot of them are background text here, they dramatically enrich the reader's ability

to understand what's really going on well beyond the one fact or the one memo that in the ordinary course of events is what journalism is built upon. Clearly, this is just a game-changing tool for journalists. But on the flip side, you can see how the government would see this as a huge threat. It's just completely exposed here. I would say any honest accounting of this has to grapple with the fact that there are

downsides for society as well as advantages of having all this information unfiltered, dumped out onto the internet. So in addition to all the things that we learn, there's also unredacted names of people around the world, human rights activists in dangerous authoritarian countries who have talked to American diplomats. We would never put that person's name in the newspaper, but here it is sitting on the internet. For example, a rights activist in an authoritarian Islamic country who the cable identifies as gay. That kind of information could get that person killed in that country. And also there are raw documents, just because it's in a government document doesn't necessarily mean it's true. And so there's a big problem with the dossiers on Guantanamo detainees.

Some of it is from like jailhouse informants who were lying so they could get cheeseburgers or whatever about, oh yeah, I saw that guy in the lineup at the training camp, etc. And it turns out later on that a lot of that is unreliable information. The government redoes its assessment, decides it's not true. But those old assessments are now sitting out there forever on the internet. And that means when these low-level guys who the government decides are safe to let go, people are going to be able to look up their names, look up their file, and see this flawed assessment of who they are, which is going to make it harder for countries to take them in, going to make people suspicious of them unfairly, because even the government doesn't believe this

anymore. But there it is. And so there are downsides as well as upsides to this geyser of information. Right. And of course, on top of all that, this information is fundamentally stuff that the government wanted to keep secret in the interest of national security. So how does the government think about approaching all of this? Of course, the cat is out of the bag now for these documents. But what they're really, really worried about is that more could be coming, that Assange is becoming this global cult figure. Other people are going to be sending him giant archives of information down the road. And this ability to protect, to some extent, what is happening inside the government is collapsing. And so they want to stop Assange. They want to make an example of him. They want to send a deterrent message to stop this sort of new model of massive bulk leaks of entire archives of documents

appearing on the internet. But the desire to go after Assange is immediately in conflict with First Amendment values and norms in the United States because it is exceedingly difficult to draw a line between his solicitation and publication of restricted information and traditional news outlets, mainstream media outlets. Not only does the New York Times do that every day, they were publishing some of these same documents simultaneously with his making them public to the general world. So how do you go after Assange without also going after traditional news outlets in a democracy like the New York Times, becomes the dilemma. And so how does the government engage with that dilemma?

So this is the Obama administration, and they are full of meetings about what to do, and it is a problem. There are no good answers. They look at various ways to go after Assange in a way that would limit the target to Assange himself. They play with theories like, was this theft? Is this copyright infringement? Like, what is this that they could get him for? But none of them really fit the circumstances. And staring him in the face is the Espionage Act, because what really happened here is he, without authorization, acquired and then disseminated restricted information. But it's just a problem to go down that route, because there's no good way really to distinguish what he did from what news organizations like the New York Times do every day.

You know, people argue about whether Assange merits the label journalist or not. It doesn't matter. It doesn't matter for this legal purpose because the Espionage Act criminalizes actions, the act of acquiring and disseminating restricted information without authorization. Whether a journalist is the one doing it or some other person is irrelevant. It's just, was this action undertaken? And the Obama administration just does not act as a result. But in 2019, the Trump administration does.

They use the Espionage Act to go after Assange. We'll be right back. So the Trump administration takes this unprecedented step, something the Obama administration had not done after deliberating for a long time. Why? It's complicated. There's a lot of reasons. But if we just boil them down to a few basics, one is Assange in the intervening years,

even though he was holed up in the Ecuadorian embassy in London, had continued to publish documents that were damaging to the United States, not just from leakers, but also in 2016 from Russian hackers, Russian government hackers trying to manipulate the American election. And the statute of limitations was going to run out on charging him over the 2010 Manning disclosures. So that was another forcing decision. And by 2019, he's in British custody and the United States is trying to extradite him to face trial in the United States. And the way extradition law works is you have to tell the country's court

system everything you're going to charge that person with when they get back to your country. You can't bait and switch. And so that also forces the decision that the Obama people never had to make. Are we going to do this or not? We have to speak now or hold our peace. And they decide, let's do it. They charge him with the espionage act. And ultimately, now we have Assange pleading guilty to these charges. Tell me why he does that. Well, I haven't talked to him about it, but we can observe that he had been locked up in the embassy in London since 2012 until he got dragged out of it in 2019. And for more than five years following that, during his extradition battle, he had been held in a maximum security British prison.

And so he looked like his extradition fight was coming to an end. He was probably going to be sent to the United States. And then he would actually face trial on all this. And he might ultimately prevail or he might not. But even if he did ultimately prevail, that meant many more years probably of being imprisoned while that legal proceeding played out. So by pleading guilty, he was allowed to walk free and is now home in his country of Australia.

Charlie, you'd mentioned that the First Amendment was really the thing that had kept the government from going this far for so long. So how should we think about the First Amendment in light of this conviction? Isn't the criminalization of the publication of leaked information in direct conflict with the idea that the government cannot make any laws that infringe on the freedom of the publication of leaked information in direct conflict with the idea that the government cannot make any laws that infringe on the freedom of the press? So it was certainly understood by most people, most serious legal scholars, through the 20th century that it was. So what this does is it lays down a marker that that understanding could be wrong, just as we didn't really think that leakers could be sent to prison. And now we understand very well that they

can. So this case, because Assange will not appeal, because it was a plea deal, will not be tested at any higher level court. The Supreme Court will not have an opportunity to weigh in on it. But it's sitting there as a warning. So the Assange plea deal leaves us in this kind of gray area because it doesn't tell us whether, if this case had gone to trial, a First Amendment defense would have worked. We don't actually know whether a judge would have said the First Amendment protects people from being prosecuted for this kind of thing. It's ambiguous.

It is ambiguous, but it is one more step down this slippery slope we've been on for almost a quarter century now toward more and more government control of information through the use of criminal law. And there is evidence that this slope has at times chilled the flow of information to the public. Here's an example. Back in 2011, the Patriot Act was up for reauthorization. This was a package of expanded surveillance authorities Congress passed right after 9-11. And a couple Democratic senators, Wyden and Udall, who are on the Intelligence Committee, went to the Senate floor, and they each gave these weird speeches. I believe that Congress is granting powers to the executive branch that lead to abuse and,

frankly, shield the executive branch from accountability. Where they said, something is wrong. Yes, we need secret operations, but secret law is bad for our democracy. It will undermine the confidence that the American people have in our intelligence operations. The law is being interpreted by the government in a way that is not obvious, that people would be outraged about if they learned it,

but it's classified so we can't talk about it. But if you are going to vote on the Patriot Act, you have a responsibility, colleagues, to go learn about this thing. I believe it seriously risks the constitutional freedoms of our people. People like me who write about national security and law were, of course, intrigued and tried very hard to figure out what Wyden and Udall were talking about. And I did figure out that it had something to do with telecommunications companies, which makes sense since this is a surveillance law. And I talked to various people that I knew

who worked in the space of telecoms and national security law, including a lawyer. I remember going to his office and saying, I'm trying to figure this thing out. Do you know what it is? And he said, yeah. And I asked him what it was. And he said, I'm not going to tell you. I said, why? And he's pointing to his pictures on his desk of his children. And he says, if you do figure it out and the FBI comes and asks me, I want to be able to honestly tell them I did not help you. So then two years later, Edward Snowden copies huge archives of national security agency documents and other surveillance-related stuff, hands them to sets of journalists in Hong Kong. Now to the story that has some Americans worried. We are living

in a big brother society. Reports that the NSA is collecting extensive phone and internet data from citizens. And the first revelation out of the Snowden archive published by The Guardian is that the government is secretly collecting logs of all Americans' phone calls, not just their international calls, but even logging their domestic calls and their local calls. Illegal, ineffective, and unnecessary. That is essentially what the five-member Privacy and Civil Liberties Oversight Board said about the National Security Agency's collection of phone data. Okay, so it takes two years, basically, from when you hear about this from the senators, from when you talk to that lawyer lawyer for this information to come out.

And that's where you really see the potential chilling effect, right? The idea is if people weren't so scared of being prosecuted for leaking, the public might have known earlier about this. That's right. And journalists, not just sources, may find themselves hesitating when they learn something that they think is newsworthy from actually publishing that information. Is this particular fact worth the risk that I could be charged? You and I are fortunate. We work for a very large, well-funded, powerful organization, The New York Times, that has a lot of lawyers, has defense lawyers. But there are all kinds of reporters out there

who are working for many different outlets. I didn't always work for this outlet. I may not always work for it. Who may come across something that's interesting and important, but don't have that protection behind them. And so they may be further dissuaded. Right. And you've reported, Charlie,

that Trump's former counterterrorism advisor, a top national security official, Kash Patel, has said that if elected, a Trump administration would prosecute journalists. And so I wonder if those questions become more potent if Trump comes to office. Probably. It was the Trump administration that crossed the line on charging Assange under the Espionage Act. And we learned early in the Biden administration that the Trump administration had gone after the phone records of New York Times, Washington Post, and CNN reporters. And as you say, there's this threatening environment out there. So it may be the case that this Assange guilty plea precedent doesn't mean that many, many reporters would today hesitate to publish the scoop. But a year or two from now, there may be the time for the next step down that slope.

the next step down that slope. Charlie, we touched on this really briefly earlier, but I'm sure there are plenty of people who actually think it's a good thing that the Assange saga ended the way it did, that it is a positive that it proved the Justice Department could hold people criminally accountable, not just for leaking, but also for publishing government secrets. People who think this may even make me as a U.S. citizen safer. I think there are two worlds here. And this is a true dilemma in which there are trade-offs and there's no perfect answer. It's about different sets of risks and who gets to decide. There's a world in which when someone makes an unauthorized disclosure

to the New York Times, the editor of the New York Times ultimately decides whether or not to publish that information. The government can say, please don't, and here's good reasons why, and the editor can listen to those. But if the editor or the publisher decide

that they're going to move forward, that information comes out. That is a world in which there is a free flow of information reaching voters. It serves the interests of democracy and self-government. But it contains the risk that a bad leak will get published, that the editor of the New York Times

or the publisher will make a mistake. The other world is a world in which the federal government uses the power of criminal law to step into the editor's shoes, essentially. The government makes the decision with the power of sending people to prison if people do not obey. And that is a world in which

there will not be bad leaks published, but there are also lots of good leaks that don't get published. The risk is information that people in power in the government don't want voters to know. Sometimes voters do need to know. So the risk between occasionally having a bad leak that gets published versus occasionally not having good leaks not come out is the dilemma. And if we were designing a new country, we could have, I think, an interesting argument. But I had always thought that we don't get to have that debate because we don't live in a new country that we're designing from scratch. We live in the United States. And the founders of this country wrote into the First Amendment that Congress shall make no law abridging the freedom

of the press. In the 21st century, that sensibility has been eroding. This guilty plea by Assange, eroding. This guilty plea by Assange winning a conviction for the first time under the Espionage Act for someone for the act of gathering and publishing information is a further step down that slope. And it is a slope whose endgame could be the erosion of the free press as a check and balance on government power. Charlie, thank you for coming on. Thank you. We'll be right back. Here's what else you need to know today. Tensions in the Middle East ratcheted up after two of Israel's biggest enemies were killed in back-to-back attacks over the past 48 hours.

Israel has claimed responsibility for one of the attacks, which killed senior Hezbollah commander Fawad Shakur in Lebanon. And Israel was immediately blamed for the other killing, of Hamas leader Ismail Haniyeh in Iran, by both Hamas and Iranian officials. The question now is how both Hamas and Hezbollah will respond to the attacks on their leaders, how Iran will react to a rare strike within its borders, and whether either reaction leads to the outbreak of a wider regional conflict. And during a combative interview on Wednesday, former President Trump questioned the racial identity of the presumptive Democratic nominee,

Vice President Kamala Harris, and falsely claimed that she once identified only as Indian. She was always of Indian heritage, and she was only promoting Indian heritage. I didn't know she was Black until a number of years ago when she happened to turn Black, and now she wants to be known as Black. So I don't know, is she Indian or is she Black? She is always identified as a Black, but she went to a historically Black college. I respect either one, but she obviously doesn't. Because she was Indian all the way through. Later in the day, The American people deserve better.

Harris responded to Trump's comments, saying that Trump had put on the, quote, same old show of, quote, divisiveness and disrespect. We deserve a leader who understands that our differences do not divide us. They are an essential source of our strength. Today's episode was produced by Rob Zipko, Carlos Prieto, and Diana Nguyen.

It was edited by Lisa Chow. Contains original music by Rowan Niemisto, Marion Lozano, Pat McCusker, and Diane Wong. And was engineered by Chris Wood.

Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Natalie Kittrow-Eff. See you tomorrow.