After 12 years without freedom—first after seeking refuge in the Ecuadorian embassy in London and then as a prisoner in high-security Belmarsh—Julian Assange, the founder of Wikileaks, is free and is back on home soil in Australia.
Assange’s crime was to publish classified information leaked from the US Army. He was working alongside Chelsea Manning, who had hacked the material. Assange claimed he was a journalist acting under the protection of the First Amendment in the US guaranteeing freedom of speech. A similar defence had been used in 1972 with the publishing of the Pentagon Papers by the New York Times.
In today’s episode, Alan Rusbridger, who was editor of the Guardian—the UK paper that published the documents leaked by Assange—and former FT editor Lionel Barber are joined two special guests. James Goodale is a legendary lawyer who represented the New York Times during the Pentagon papers and Kenneth Roth is former executive director of Human Rights Watch. They discuss the legal precedents set by this case and debate the rights and wrongs of publishing classified documents. Plus, what does this case indicate for the future freedom of the media?
This transcript is unedited and may contain errors.
Alan: Julian Assange is a free man. After years of forms of incarceration, first in the Ecuadorian Embassy and then in Belmarsh prison, he's finally been released.
Speaker 4: The prosecution of Julian Assange is unprecedented. In the 100 years of the Espionage Act, it has never been used by the United States to pursue a publisher, a journalist like Mr. Assange.
Alan: The case raises questions. Should he ever have been charged under a First World War measure designed to hunt down spies?
Speaker 4: Mr. Assange revealed truthful, important, and newsworthy information, including revealing that the United States had committed war crimes, and he has suffered tremendously in his fight for free speech, for freedom of the press, and to ensure that the American public and the world community gets truthful and important newsworthy information. We firmly believe that Mr. Assange never should have been charged under the Espionage Act and engaged in exercise that journalists engage in every day. We're thankful that they do.
Alan: In this week's special episode of Media Confidential, we'll be examining the Julian Assange case. It's a complex and fascinating story, which raises a fundamental question. What is a journalist? We'll recap the story and we'll hear from two guests closely involved with the case. James Goodale is a legendary lawyer champion of press freedom, who served as Vice President and General counsel of The New York Times during the Pentagon Papers case, and Ken Roth, former executive director of Human Rights Watch.
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Before we get to Julian Assange story, Lionel, you're in London. You're not in lycra, you're not traveling. What have you been watching, reading, noticing, and monitoring?
Lionel: Oh, I've been watching The Washington Post story.
Alan: Again.
Lionel: I saw William Lewis' trials. Yes, can't get away from it. A long piece in The Daily Beast and by I think a very sharp reporter actually is making a mark on this story, Harry Lambert. Of course, following up on the earlier revelations in The New York Times over the weekend, both stories, I think very damaging to Will Lewis because they undermine his story that he was essentially cleaning up the mess left by the phone hacking scandal.
What they're saying, I think there were two revelations Alan, one is that he destroyed tens of thousands of millions of emails and that he was essentially, I've got to choose my words carefully here, but shall we say not helping the police with their inquiries. He came up with this incredible story that there was a plot by former Prime Minister Gordon Brown to actually obtain the emails of Senior News International Murdoch executives emails, a claim rejected by the police as poppycock. This has been some big, big developments in the story.
Alan: I think it's time to stop because the question that everybody is now asking is, can Lewis survive? I think since we were last on air, Rob Wynette the editor of The Telegraph, this deputy of The Telegraph, who was supposed to be brought in as editor has, I don't know, he's either fallen on his sword or Will Lewis has generously paid him to change his mind. It would be interesting to know. I don't think anyone's had the chance to ask whether any money changed hands there.
Anyway, Wynette is not going to be editor. The question therefore is whether Lewis himself is going to survive. Jeff Bezos is supposedly on a yacht in the Aegean, the owner of The Washington Post. Here's the difficulty for him, because his instinct may be to protect and stand by Lewis, but Lewis's fate, I think, is now in the hands of three people. One is Prince Harry, who seems determined to go to court and fight his case in which all this evidence about Lewis will come out and will be tested. The second are the assorted bloggers, the out-of-work actors who were employed, it is said, by Lewis in his time at The Sunday Times to get inside the bank accounts and other mysterious information.
It's always possible that one of them is going to come out on the record or on a film and say something about Lewis that would be very damaging. Potentially, the biggest threat is from Sir Mark Rowley. Now, he's the head of the Metropolitan Police, and Gordon Brown, as you say, who has had this very outrageous suggestion that he was conspiring to hack into Rebekah Brooks, the CEO of News in the UK. An extraordinary suggestion that he was trying to get information. That's why Will Lewis felt obliged to delete all these millions of emails, or not delete personally, but authorize the millions of emails.
Mark Rowley has a decision to make. Is he going to reopen this case? Is Gordon Brown going to press that? If Mark Rowley reopens this case, then it's not going to be a question of he said, she said, it's going to be a question of the police pursuing the evidence. There's one reason why I think Mark Rowley might, clearly there are many reasons he might just think, "This is the last thing I need. I don't need to go to war with journalists again."
As you suggested, Lionel, this is the evidence of his own officers. These are his own officers quoted in The Daily Beast saying that Lewis's story was a total fabrication. The New York Times reporting reflects the same. The reporting by Nick Davis in Prospect reflects the same that the police themselves were extremely fed up with Lewis and just didn't believe him. Is Mark Rowley going to back his own officers, or his own former officers, in getting to the bottom of the story, or is he going to take the quiet way out? That's the dilemma. If you were Bezos, that's what you're going to have to play into this. It's not the state of play at the moment. He has to have someone advising him as to what the state of play is going to be like over the next six months.
Lionel: An extraordinary suggestion of all the people that you pick to implicate in the phone hacking scandal. Gordon Brown, and he may have had a pretty terrible temper, I did experience that once or twice when we were discussing macroeconomic policy, Alan, but the idea of-- Gordon Brown is a man of transparent integrity when it comes to these matters.
The idea that he was the threat, to me, it's breathtaking. I think the second observation, Alan, is that it, once again-- The Guardian did pioneering reporting on the phone hacking scandal back nearly 15 years ago, but once again, it's American journalists, or in the case of Harry Lambert, a British journalist working for an American publication, who've broken new ground in this story. They've got the police detectives at the time to talk, and I think that's very significant.
Last point, I would add one other person who's key to the fate of William Lewis as publisher and CEO of The Washington Post, and that is Patti Stonesifer, longtime confidant of Jeff Bezos, longtime Amazon board member. She vetted or arranged, was involved in the vetting of Will Lewis for that job. She has Jeff Bezos's ear. If she loses confidence in Will Lewis, he's toast.
Alan: It's a really difficult dilemma for Bezos. Although I'm sure he wishes the most well, you can't pick up the mood of the newsroom from a yacht in the Aegean. It's tempting, I'm sure, for him to say, "Look, I picked this guy. This is a mutinous newsroom. They've got to learn which way is up where they're losing money. Lewis is the guy to do this." As I say, somebody's got to say, "Look, it's all right to back him at the moment, Jeff, but if you back him and put your own reputation on the line and back him at the moment, just think what this story is going to look like in six months time or a year's time- -when these matters come to court or the police may investigate." That may cause him, and as you say, Patty Stonesifer pause for thought.
Lionel: Final observation, Alan, you'll be relieved that I've not been in my Lycra on my bike. I've been doing some reporting. I've been talking to some people about why Lewis made the mistakes that he did in his original choice of bringing in a total outsider, Robert Wynette, with no experience of America as executive editor of The Washington Post, following in the steps of legends like Ben Bradley or in Glen Downey. What possessed him to go ahead with that choice, and then take a very bull in a China shop attitude towards the senior people at The Post?
What's going on here? The answer I'm told is that he felt that Bezos had picked him. In the tech world, the tech bosses back their choice. If the proprietor had his back in the same way that Rupert Murdoch had his back during that phone hacking scandal, and then when he became CEO of Dow Jones working for Rupert Murdoch, then he was fine. He could do what he wanted. He could lead the revolution. Of course, that was a high-risk bet, and it may not turn out well for him.
Alan: I think possibly the bit that Bezos struggles to understand, and you will understand this [unintelligible 00:11:42] is that each newspaper has its own culture and traditions. You've talked about the great culture and traditions of The Washington Post, and it's very, very difficult to come in and graft an entirely new person onto that culture. I don't underestimate the difficulty of someone from Will Lewis' background.
He's essentially a Murdoch man, or in recent years, he's been a Murdoch man. He's capable, I think, of great brilliance, but also great ruthlessness and to go into an organization and essentially trash the staff who were working there already, that's a slight overstatement, but he didn't make them feel good. I don't think about what they had done or the culture that they had and say, we're going to have to change all that. I'm the guy to do it.
By the way, I'm bringing in a charm. It's a textbook example of how not to manage a newsroom. I'm not sure that Bezos gets that because in the world of tech, there's no such thing as an ingrained culture, which has built up in The Washington Post case over decades. I think that's maybe the bit that he's misreading.
Lionel: Obviously, The Post is losing a lot of money, lost near more than $70 million last year. It does need an overhaul. Alan, to sum it up for Jeff Bezos, if he's listening out there, I would've conducted a skin graft and Will Lewis thought he needed to conduct a heart transplant.
Alan: We can see why you're a top-grade writer with metaphors like that flying around.
[laughter]
Lionel: Thank you, Dr. Rusbridger.
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Julian Assange is back home in Australia. Alan, you've been very close to this story for many years, but let's recap a little. The case covers the interplay of the law, national security, freedom of speech, secrecy, and transparency, and above all the workings of modern media. Let's go back to 2010 when Julian Assange, who's Australian by birth, obtained a secret archive of some quarter of a million military and diplomatic secrets relating to the wars in Iraq and Afghanistan.
The US claimed he conspired with Chelsea Manning, then a US intelligence analyst to hack into a secret Pentagon network to access classified material. Assange founder of WikiLeaks claims, he was a journalist acting under the protection of the First Amendment in the US guaranteeing freedom of speech. Alan, go back to those events, what was published by whom in your own role?
Alan: I had dealt occasionally with Julian Assange from I think around about 2008 when he was a completely unknown. He was a pioneer in getting hold of documents by making it safe for whistleblowers to reveal secrets. In around 2010, Nick Davis, who wrote these groundbreaking reports for us in The Guardian came to me and said, "Have you seen these?" They were just NIBs, news in briefs, saying that there's a guy who has got all these secrets.
I think I should get in touch with him because no mainstream media outlet had approached Julian. They went to meet him and said, "Look, you've got, whatever it is, a quarter of a million documents. You can't do that alone. You should come and work with us." That's how the partnership with The Guardian began. We shared that material partly at Julian's request with The New York Times, with Le Monde in France, with El Pais in Spain, with Der Spiegel in Germany.
That's how we then began this partnership. It was extremely complex to work out how to publish these documents safely i.e. with proper redactions where it might have endangered lives or caused harm. To work across time zones with a French evening newspaper, a German weekly paper, a New York Morning paper and so on, and with Assange himself who had halfway through this story went into hiding because he was anxious not to talk to the Swedish police about a different set of allegations.
Lionel: Just stop there, Alan. Before we talk about some of the complexities of managing the story, let's just deal with Assange himself described by Bill Keller, who was your opposite number there. The executive editor of The New York Times said that Assange was elusive, volatile, and manipulative. He was clear in his own mind that he was the source, not a collaborator or a partner.
Here's the precious description of Assange by The New York Times journalist, Eric Schmidt, who first met him in London, "He was alert, but disheveled like a bad lady walking in off the street, wearing a dingy, light-colored sport coat and cargo pants, dirty white shirt, beat up sneakers, and filthy white socks that collapsed around his ankles. He smelled as if he hadn't bathed in days." Do you recognize that description, Alan?
Alan: I know the effect that it had on Julian Assange. He was outraged by that description. This was part of the difficulty of working with him because he thought, "I thought you were my partners in this story. Why would you dump on me like that?" It was difficult to explain to him also when the Swedish sexual assault allegations came along, why The Guardian felt they had to investigate it rather than defend him. There were these ambiguities. Also, you say that Bill regarded him as a source. That's not quite right because actually, Chelsea Manning was the source.
Lionel: I'm using Bill's words, by the way.
Alan: Sure. I see why Bill used that word, but this is part of the enigma of Assange and why I think some journalists find it difficult to align themselves with him because he was capable when working with us of working like a conventional journalist. He was simultaneously an impresario. He was marketing these documents if you like.
He was an activist. He had a view of the world that he never hid. He also pushed us because he didn't-- We called it redaction. He saw some of it as censorship. He thought we should be much more permissive in what we were publishing. There were tensions in that relationship. In the end, the relationship was not a good one.
Lionel: Regarding confidentiality of sources, and I know that you and I've talked with Bill at the time, were very careful in making those redactions in order to protect lives. Even so several people are reported to have died because they were identified as having worked with the Americans or compromised.
Alan: There were reports to that effect that in fact, when Chelsea Manning was on trial, the source, I think he was a brigadier general who had with 120 staff tried to investigate that claim. In court it was put to him could he actually name a single person who had died. He had to say that he couldn't.
Lionel: Again, I'm going by what Bill Keller wrote in The New York Times, but even editors can be sometimes slightly mistake perhaps. You haven't asked how the FT covered the story at the time. I have to say, I had a number of questions certainly about Assange. I didn't like the way he tried to control the story because he was not the editor, not the journalist. One or two of my colleagues suggested that I have lunch with Julian Assange while he was in Wandsworth Prison. I thought that was a no goer, not least because the food in Wandsworth prison is not very good. [crosstalk]
Alan: Not the wine that you're used to [crosstalk].
Lionel: I correctly concluded that there was no chance of the governor agreeing to that but there we are. We had about four weeks where every story involving America had, according to WikiLeaks, I found irritating. I suppose that the important point is that a number of stories did expose the war on terror conducted by, in his words, by President Bush in Iraq and Afghanistan and the flawed assumption, the flawed execution, and many other aspects of the overall story.
Alan: There's no question that a lot of stories that came out of that material were of considerable significance. Any newspaper, it's said, had their hands on the same material would have been crazy not to use them. I remember Vanity Fair writing at the time that this was, by any measure, one of the most significant scoops of the century to date, in the 10 years of the 21st century. There's no question that there were incredible stories to be mined out of this material but at the same time, as we've discussed, Assange himself was something of a Marmite figure. I don't think I've ever encountered anyone who divides, who terrorizes people quite so far. Some people think he's literally like the messiah and some people think he's literally like the devil and there's no middle ground in my experience.
Lionel: We need to always bear in mind, you may disagree, Allan, political motive in a story. We should note that Julian Assange, at least, his organization WikiLeaks, was behind the release of documents, emails from within the Democratic Party obtained by Russian hackers and that these were dribbled out in the run-up to the presidential election in 2016 and did no good to Hillary Clinton's cause as candidate at all.
Alan: It's a really difficult generalist dilemma, Lionel, and I love your view of this. In general, my view was when presented with documents that I had played no part in obtaining, I was absolutely never in the business of commissioning illegal acts but if somebody brings you a document, my general view was to treat the document on its face. Was the document itself of value? Of course, you consider the motive of the source, but either the document was either important and valuable or it wasn't. I think it was a dilemma for the press in 2016, the American press. These documents were intrinsically interesting and important. Should they have not reported them because they could have come from a dodgy source and as you say, the original hack may have been by Russians?
Lionel: I do think that the general principle of examine the documents on their merit applies but I also think that just putting out things out there and letting "The public decide" is a questionable one. I think you do have to examine motivation. Otherwise, I think you can be used. The news organization can be exploited. We have a duty of care. If you were presented with, for example, the nuclear codes for the Trident missiles, would you just publish?
Alan: No. When I was holed up before the Commons Select Committee after the Snowden revelations, this was would you reveal the movements of troop ships? No, of course not. Everything we did in publishing Assange and Snowden was aimed at precisely not stumbling into that mistake. You have to use your judgment but the old phrase publish and be damned is one that applies here. You can't have prior restraint of governments telling newspapers what to publish and what not to publish, and I think we're about to discuss that with one of our guests. On the other hand, if you use your judgment and that judgment was clearly wrong, then as editor, you take the consequences.
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We're now joined to discuss all this by James Goodale. James is a partner at Debevoise & Plimpton based in Manhattan, and he's taken a deep interest in the Assange case and has been really critical of the Trump administration for charging Assange under the Espionage Act. He sees it as part of the US government's ever-growing anti-whistleblower campaign and attack on the free press. Perhaps more interestingly, he was the lawyer who was working on The New York Times at the time of the Pentagon Papers and new Daniel Ellsberg and that landmark case in 1972. James is now about to approach his 90th birthday. He's got really interesting comparisons he can make between that case and this. James, can you briefly summarize the importance of that case?
James Goodale: That case was the desire of The New York Times to publish a history of the Vietnam relationship with the United States starting in 1948, going through to 1976, I think, or '66. It's been so long ago I've forgotten the dates, sorry, a little bit, but the history showed that the United States had lied about its relationship with Vietnam historically and more particularly, with respect to the Vietnam War, which was going on. These papers were leaked to The New York Times by Daniel Ellsberg and the issue before The New York Times was whether it could publish these papers. The history showed that the United States had gotten the country into the war through a series of lies.
Inside The New York Times, there was a terrific fight as to whether these papers could be published. Why? They were classified from confidential to top secret and the issue was whether there could be a criminal or a non-criminal remedy in court granted to the government because of the classification status. The papers came to me for a legal opinion. I looked at the Pentagon papers and being a history buff, I went to the footnotes and the footnotes all referred to The New York Times as the source of the material which the articles were going to be part of and I said to myself really just based on that, "This is total nonsense. The government cannot stop publication."
The government tried to stop publication and it actually succeeded but before we got to that point, we had published before that two installments. The publisher of The New York Times, Arthur Sulzberger Sr was in England and we got him on the phone. We told him we had this fight and he asked me what will happen if we publish. I said, "I don't think anything is going to happen to you criminally, but I do think there's a distinct probability that you will be enjoined if you go ahead and publish and the question is whether you want to go through with that?" He said, "Yes, I want to go through with it."
Adding to the drama was the fact that our lawyers who had earlier told us not to publish when I called them to represent us in court resigned. The drama heightens because now we have no lawyers. We have me, I am 37 and my expertise is not fighting prior restraints against the government in a federal court. I had looked at the statutes and decided there wasn't liability for us and I figured I knew more than the government.
I walked out of the building and got home and got a phone call and it said we had found lawyers. The lawyers we had found were terrific. The case ultimately went to the Supreme Court and to make a long story short, we won six to three. The Pentagon Papers case is the case about classified information, pre-publication and it's different than Assange, which is what we call post-publication. We can't stop Assange from publishing. He's already published.
Alan: That's a fantastic summary, James. Thank you for that. Now, if we go to the present day, you've been vocal in supporting Assange and warning of the dangers to press freedom if this prosecution was successful. We're speaking on the day that Assange has been released. What are your feelings today?
James: My feelings are essentially of great relief because there had never been in the US courts a case in which a criminal prosecution was brought or the publication of information. Because it was a new case, we did not know what was going to happen. Particularly with respect to the United States Supreme Court as presently constituted, that was a chance we did not want, we, the supporters of the press, did not want to take because we were afraid the Supreme Court would come up with bad First Amendment law. That will not happen now because the case is over.
Alan: You were happy with the plea bargain, James?
James: Assange says, "I hereby agree I violated part of the Espionage Act, which makes it a crime to publish information relating to the national security of the United States." That is the first time that has ever happened in the history of the United States or the First Amendment. It is not a happy circumstance for us lawyers who like to argue, you can't do it because it's never happened before. Now it's happened. I think what you have to do in life is you have to balance your options.
Now, was it worthwhile for Assange to keep on fighting? From my point, yes, but from Assange's point of view, he'd been in prison for all these years, and before that in the Ecuadorian embassy. I can't say it was in his self-interest that he should be looking after my interests. I think as you balance this and particularly throw the Supreme Court risk into the balance, you have to say, “I'm relieved.”
Alan: This has set a precedent, maybe not an official legal precedent, but how worried should other reporters be to see the way that this law has been used against reporting?
James: It's not good. Now, we have national security journalists who are the recipients of classified information, and they now have to be a little bit scared that they and their publishers will be subject to criminal sanctions, which was not at all clear before. On the other hand, the fact that one journalist has made a deal cannot be used as a precedent. The fear that will come to journalists who receive classified information will be generated by a settlement and not by a rule of law. That fear did not exist before the settlement today. That's a bit of the downside. I'm not sure that's going to be a huge inhibition, but I may be wrong.
Alan: James, you were almost unique amongst your legal brothers and sisters in speaking out on behalf of Assange. Some people said he's not really a journalist. We shouldn't be arguing on his behalf. What was your view of that argument?
James: The argument is that Julian Assange is not really a journalist because he obtains information by the new technology. He has a website, he doesn't own a newspaper. I do not think much of the argument that he's not a journalist because he is performing journalistic functions. He talks to sources. In this particular case, he talked to a private who was named Manning, in the government leaking to him, Assange. That is absolutely on parallel terms with what ordinary journalists do.
In this particular case, as you know, Alan, better than I, he shared the information with you. There was a consortium of your employer, The New York Times, El Pais in Spain, Le Monde in France, and a German paper to publish this as a group. That certainly seems to me like a publishing venture. It seems to me that Assange, as a journalist, performing journalist functions, should be, in that respect, treated as a journalist. The fact that he's not, “A journalist” as we know them, is not relevant because he's doing so many things a journalist does, and therefore, if we penalize him for what he does as a journalist, we penalize all journalists.
Alan: James, I can't resist a last question, which is that story that you told us at the beginning of this tape was later immortalized with Tom Hanks and Meryl Streep in a film called The Post. What did you make of that film?
James: The Washington Post has First Amendment rights to do whatever the hell they want. They did what Hollywood does. They made a really good movie where you could see Kay Graham and Ben Bradley, great friends of mine, doing pretty much what I did. They didn't do what I did, but too bad for me, it was entertaining, it moved forward the story and good for The Washington Post, but in the interest of accuracy, I have to say what happened in that movie never happened.
Alan: [laughs] That's Hollywood for you. Thank you so much, James, for joining us on Media Confidential.
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This is Media Confidential from Prospect Magazine. After the break, we'll be joined by Ken Roth to talk more about Julian Assange's release. We'll be right back.
Alan: In the Prospect podcast this week, Emily Lawford quizzes Tim Bale. He's professor of politics at Queen Mary University of London on the gambling scandal. They also touch on election culture wars and who out of all the candidates has had the best campaign so far. Ellen Halliday, our deputy editor, is also in conversation with the deputy director of defense at the Royal United Services Institute, RUSI, and asks, "Is Britain ready should Putin raise the stakes?"
Speaker 7: I think for the UK and Europe, the most acute threat in the short term is in relation to Russia because there is a war going on in Europe of an intensity we haven't seen since World War II. The outcome of that war remains deeply unpredictable. There's a possibility of escalation. All Western capitals are worried about the possibility of escalation to a wider conflict, and we don't know what Putin will do next. Follow Prospect Magazine wherever you get your podcasts, and right now you can take an advantage of our election offer.
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Alan: Good value. Welcome back to Media Confidential. We're joined now by Ken Roth, former executive director of Human Rights Watch, who's described the treatment of Assange as a serious threat to media freedom. Ken, let's just start with the plea bargain. This wasn't obviously a court decision, but how do you regard the impact of the plea bargain on press feed and more generally?
Ken Roth: I think first of all, we're just all relieved that Julian Assange's long ordeal is ended. Even though he was a controversial figure, he clearly served his time in many, many ways. That much is good. I think what is troubling is that the initial indictment, or I should say the superseding indictment, the one imposed by Trump, was a very troubling indictment because it charged as a violation of the Espionage Act, a series of acts that are basic journalistic practice, soliciting the receipt of confidential or secret governmental information, talking with the potential transmitters of that information to hand it over.
Much of this is completely standard journalistic practice. For one fact, that salvaged that indictment, was the charge that Assange had conspired with Chelsea Manning to hack a government password that would allow Manning to get access to some of this information. That was a step beyond what journalists do. In other words, journalists will set up confidential vehicles to receive information. They will certainly talk with their sources, they will encourage their sources to hand over information, that's all standard, but it's not standard journalistic practice to hack a code.
Insofar as that was true, that was the one thing that might have salvaged the indictment. What we just don't know, and I've actually been texting Jen Robinson, Assange's lawyer to see what exactly happened in the Mariana Islands. The media accounts I've seen so far is just that he asserted his First Amendment is his media freedom rights, but said that he recognized reality would be hard to prevail, so therefore he was going to plead guilty.
I don't know whether that was just a summary pleading of guilty to this overbroad indictment, or whether there was a narrower, what's called an allocution to a set of facts that might have focused on the hacking as a way of salvaging media freedom. I just don't know that at this stage, but I fear that this was just a summary guilty plea, which while it doesn't have the same presidential value as a judicial decision, nonetheless could encourage more of these completely overbroad prosecutions that clearly do infringe on media freedom.
Alan: To be clear, Ken, this was not a court decision, nor will it go before the Supreme Court where you could see a further establishment of precedent. It's a plea bargain only. Second related question is, when you refer to the Espionage Act, which I believe 1919, it's more than 100 years ago. This is a sledgehammer act. A bit like the Official Secrets Act of 1911 in the UK.
Ken: The Espionage Act, by its terms, should apply to spying, but at least by government tradition and arguably by the requirements of the US Constitution, it has not been applied to journalists who are doing their job, even if that involves revealing secret government information. That's why this Trump indictment was so dangerous because it clearly crossed that line. It could have set a legal precedent, but because this is just a plea bargain, there's no binding judicial precedent, there is just a precedent of practice that some other unsavory prosecutor could follow.
Lionel: Just to be clear, Ken, when you talk about the Trump indictment, it was the Justice Department under President Lionel Trump that decided to use the Espionage Act rather than previously seeking his extradition without reference to that.
Ken: That's correct, Lionel, but I think it's fair to call it the Trump indictment because under Obama, the Justice Department chose not to pursue an Espionage prosecution. It was only once Trump came into office that his Justice Department with relative indifference to the First Amendment proceeded with these structures.
Alan: Ken, if I was an American journalist today and maybe hadn't been paying great attention to this case because many American journalists wouldn't think of as Assange as a "Proper reporter," how worried should I be? What's the likelihood that this is going to be repeated?
Ken: Alan, realistically, I don't think anybody's going to follow this practical precedent. First of all, Assange, as you're alluding to, is not your classical journalist, and he's been criticized for what I think widely what's called a data dump. Much of what he disclosed was just unreviewed government documents. There happened to be a few nuggets in there. Everybody points to the videotape of this helicopter attack in Baghdad that killed, I think 11 people, including two Reuters journalists. There were segments in there that did a service by revealing government human rights violations, but most of it was just a dump.
Indeed, some of it did some harm by revealing secret sources who you would not want reveal, people who are cooperating with the US government while the US was in Afghanistan, and this could really have endangered people's lives. Assange was not acting like a responsible journalist, but nonetheless what he did, which is to say, receive secret information from a source and publish it, was enough like journalism that people feared that this was setting a negative precedent for journalist freedom. That said, I think that the situation of Assange and WikiLeaks is sui generis enough that I would be surprised if this were followed in the near future. Certainly it won't be by the Biden administration. If there is a Trump administration, who knows what happens.
Alan: We do know that governments around the world, certainly the UK and Australia, after Snowden and Assange, the double whammy, the two of them, have moved to tighten up restrictions on reporting. The penalties in the UK have now-- I think any editor that did what I did with Snowden would now face up to 14 years in jail. The thing that the official Secret Act shares with the Espionage Act is that there's no defense. You can't explain why you did what you did it. How unusual is that in law?
Ken: These official secrets acts, they basically look at just did you reveal an official secret? They don't look at the public purpose. As you note, Alan, that is an attribute of the Espionage Act as well. I think that the difficulty with that is that if you're allowed a jury trial, the jury wants to know why you acted. There is this possibility in jury nullification. Now, statutes are written to avoid jury nullification, and defense lawyers do everything that they can to get the accused rationale before the jury. You can see how this would be a fight within the trial, with the defense lawyers doing everything they could to slip in the background.
We have somebody like Edward Snowden, there was a clear public purpose to what he did. We all have much greater protection of our privacy and greater awareness of the threats to it because of Snowden's very deliberate, careful revelations. That's quite different from Julian Assange.
Lionel: The irony, Ken, is that as a result of these revelations, the efforts by government to clamp down on what they consider to be official secrets has grown even greater. They're even more concerned about big data leaks. Is there anything which you see in legal cases where, if you like, the rights of the press, the rights of freedom of speech have actually increased or that you are reversing this tide?
Ken: First of all, I think it's worth noting, as Alan alluded to, is that in the UK as well as in places like Australia, there really is no constitutional right to media freedom. This is all a matter of tradition and parliament or the legislature can simply impede upon journalistic freedoms when they feel that that's appropriate. The United States is a very different system. It has the First Amendment, it has a constitutional right to free speech and freedom of the press. One thing you can say about this quite right wing Supreme Court in the United States today, is that it still does seem to have a special place in its heart for the First Amendment.
The way that there is clearly a drawback on rights, say with respect to reproductive freedom, the most outrageous example, or other elements of privacy. You don't see that right now with freedom of the media in the United States. There doesn't seem to be an imminent threat to overall media freedom. It's actually unclear how this indictment would've fared if it ever received a judicial review, which it never did. A judge could have forced the government to focus on the hacking alone as the only appropriate element of the indictment, but we'll just never know.
Alan: I was quite struck by the fact that the UK court here, several judges actually referred to, or certainly offered the- -prospect of a defense under the European Convention of Human Rights. Which is ironic in Brexit Britain, Ken?
Ken: It certainly is, yes. They're running away from that as much as they can. Yes.
Alan: It did have some weight in the case. Certainly, it helped Assange.
Ken: Which is technically why it's important that the European Convention continue to apply in the UK and the idea of substituting for that because so-called foreign judges are imposing their views on British citizens is crazy. In a country that lacks a constitution, the rights upheld by the European Convention on Human Rights and enforced by the European Court are incredibly important.
Alan: It's a relief to hear you say what you said, Ken, because there were pieces being written, I don't know, six months ago, questioning what you said. They saw signals from the Supreme Court that the two main piece of legislation, two main judgements that the Pentagon Papers and New York Times versus Sullivan, which are the main two pillars that reporters rely on, that actually there were individual justices who weren't keen on these and were looking to overturn them.
Ken: Alan, I think New York Times versus Sullivan is probably the key target of attack by the right wing. Which for listeners, that's the main defamation case. That's the one that says that if a public figure, a public official charges defamation against a media outlet or anybody else, they have to prove what's called actual malice, which is intentional or reckless disregard for the truth. A very high standard, which is usually difficult to meet.
That provides huge latitude for journalists to-- So long as there's some basis, so long as they're trying to be journalists or not, not just putting out scandalous information, it provides some very significant protection. Now, there has long been an attack on that. I don't see that succeeding at this stage. That would be such a radical rewrite of what has become a pillar of First Amendment protection. Even this conservative court, I'm not sure that they could get five justices to agree to that.
Alan: There's one final bit for British listeners that they might struggle to understand because if America is known for anything, it's known for its separation of powers, and yet the decision to do a plea bargain was clearly political and the decision to prosecute him was clearly political. Can you just explain how these political influences are brought to bear on a prosecution system that's supposed to be independent?
Ken: There are many countries where the prosecutor is seen as a quasi-judicial officer. They do not answer to the executive branch. That is not the US system. The Attorney General, who is the head of the Justice Department, is a political appointee, named by the president, confirmed by the Senate. While there is a tradition that the Attorney General operates independently of the president, that's just tradition. The law is that the president can give orders and in any event, has selected an Attorney General who tends to view the world the way the president does.
It's not uncommon to see politics enter into prosecutions. While rank and file prosecutors, of which I used to be one, I spent four and a half years as a federal prosecutor, there is a tradition of independence there. I think most decent professional prosecutors would resign rather than pursue a politicized case, but that is not necessarily the way things operate at the higher echelons of the Justice Department, where these are all people who were politically named by the president.
Alan: If you had to guess what the background to this latest decision was, the case was going pretty well for the United States government. That was going to be a retrial, but there was every prospect that they might win, but there was political pressure from Prime Minister Albanese in Australia. Would this have gone right up to Biden?
Ken: I don't know that Biden himself would want to get involved, but it clearly would've gone to the Attorney General. I think we have to assume that the Biden administration did not have a lot of sympathy for this overbroad indictment because Biden was sitting there as vice president under Obama when they did not pursue this approach. While Biden may not have wanted to pay the political price of filing a second superseding indictment narrowing the Trump indictment, nonetheless, I'm sure he was happy to get rid of this, and on terms that I don't think is going to be subject to major questioning. Just as it's been welcomed in Australia and in Britain by a range of political backgrounds, I don't see this becoming an issue in the United States.
Alan: Just to come in here, Ken, the way I see it, but you may disagree, is they wanted to uphold the principle that you can't have people encouraging government officials to hack into national security files and then hand them over. It's too cool. At the same time, Assange had spent more than 10 years in confinement of some sort or other, and it was a total embarrassment on human rights grounds, if nothing else. As you said, he'd done his time six years and five years in a National security prison.
Ken: He looked physically terrible. There was this hacking allegation, which, we don't know what the facts are, but I think we have to assume that there's some factual basis, which does make this case different from the run of the mill journalistic solicitation of government secrets.
Alan: That's fantastic, Ken. Thank you very, very much.
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That's all from Media Confidential today. Thank you to James Goodale and Ken Roth for joining us. We'll be back next week with more news from behind the headlines and clickbait. You can send any questions or comments to MediaConfidential.co.uk, at ProspectMagazine.co.uk or get in touch on X, formally Twitter, where we are @mediaconfpod. That's all one word too. Remember to follow Media Confidential wherever you get your podcasts. Thank you for listening to Media Confidential, which is brought to you by Prospect Magazine and Fresh Air. Our producer is Martin Poyntz-Roberts.
