Why We Should All Hope the U.S. Doesn’t Manage to Extradite Julian Assange

I am not a fan of WikiLeaks founder Julian Assange. If he’s not a Russian spy, he has certainly behaved like one on a number of occasions. His careless manner of flooding the internet with classified documents has cost the lives of dissidents and informants whose names he left unredacted. Several of his erstwhile followers have come to distrust and abandon him, for good reason.

All this said, the U.S. Justice Department’s 19-point indictment of Assange is a document that endangers free speech for all Americans. And a British high court, which this week is reviewing a request to extradite him for a federal trial in Virginia, should deny the motion.

The indictment, first filed in 2018 and amended twice since, charges Assange with violating the Espionage Act, a law passed in 1917 that in fact has very little to do with espionage. Specifically, he is charged with obtaining and transmitting classified information without proper authorization. By the indictment’s logic, dozens, if not hundreds, of journalists could be arrested for simply doing their jobs.

Assange is not a journalist in the sense that the term is commonly understood, but the acts for which he’s indicted describe what many journalists do routinely. If Assange can be arrested, indicted, and imprisoned for these actions, so could those journalists.

The Espionage Act—formally known as 18 U.S. Code, Section 793, “Gathering, Transmitting, or Losing Defense Information”—is a grotesque piece of work. The list of activities that could get millions of Americans arrested by a hypervigilant enforcer of the statute is mind-blowing. (Stop reading this essay now and look at the list. Really.) Congress really should repeal the law and replace it with a bill that addresses true dangers to national security.

In 2019, the Department of Justice issued a single-count indictment against Assange, charging him—under a completely different statute—with conspiring to break into a computer containing classified information. The evidence was mountainous that he not only encouraged but instructed people with security clearances and a desire to leak secrets precisely how to tap into codewords and compartments to which they did not have legitimate access. This went well beyond legitimate journalistic processes. (As a result, Army Pvt. Chelsea Manning, Assange’s most famous co-conspirator, spent several years in military prison.)

At first, Justice requested that Britain extradite Assange—who was in a London prison—to be tried on that count. The request might have succeeded; the charge, which carried a penalty of up to five years in jail, seemed reasonable. But then just a month later, Justice filed an 18-count supplemental indictment under the Espionage Act. If found guilty, Assange could be jailed for up to 180 years—10 years for each count.

This combined 19-count charge is what Assange would face if the British judges extradite him now. It is quite possible they won’t. They tend to refuse such requests if the potential penalties are extreme or if the alleged crime seems political. And the case against Assange—on 18 of those 19 counts anyway—is clearly political.

We nearly went down this road once before. In the 2006 case of The United States vs. Lawrence Anthony Franklin, Steven J. Rosen, Keith Weissman, prosecutors in Alexandria, Virginia (the same district where Assange would be tried), issued a five-count indictment under the Espionage Act, specifically the clause that forbids “communication of national defense information to persons not entitled to receive it.”

Franklin was a Pentagon official who revealed classified information to Rosen and Weissman, policy analysts at the American Israel Public Affairs Committee (AIPAC). The charge against Franklin—though hardly unusual and rarely prosecuted—was at least clear-cut: He violated his oath to keep secrets secret. The unusual thing in this case was that Rosen and Weissman were indicted for receiving the information. That section of the joint indictment, titled “Ways and Means of the Conspiracy,” found that the two AIPAC analysts:

Again, this is what journalists do all the time: They receive information from insiders, write it up in a story, and send the story to editors, who publish it in newspapers, magazines, or on websites, which are read by other people who also are not authorized to see it. Had Franklin passed muster and had its logic been extended, people who simply read the subsequent articles could have been indicted under the Espionage Act.

The presiding U.S. district court judge in that case, T.S. Ellis III, made the point explicitly, noting that the law “applies to academics, lawyers, journalists, professors, whatever.” At the start of the case, Ellis was inclined to accept the logic. This is what the law says, he told the defense attorneys; it’s his job to apply the law.

Eventually, however, Ellis threw the book at Franklin, the leaker, but let Rosen and Weissman go, agreeing with their lawyers that the statute is so frequently violated, yet so rarely enforced, that prosecuting them would be arbitrary and capricious.

If Assange’s case makes it as far as the district court in Virginia, will his judge give him the same break? Will the judges in London refuse to release him to U.S. authorities, leery of this 100-plus-year-old law and the possibility that a judge today might act less leniently than Ellis?

The Espionage Act does specify that in order to be guilty of the crime, a defendant must have obtained or disseminated the secrets “with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation.”

A case could be made that Assange did have that intent. At conferences in the early 2010s, he gave aspiring hackers and leakers lists of secret material that he wanted, the release of which would have damaged U.S. policies. In 2011, a WikiLeaks staffer named James Ball quit after learning that a Russian “peace activist” named Israel Shamir, a longtime friend of Assange’s, was providing raw intelligence files to the interior minister of Belarus. The following year, Assange hosted a short-lived talk show for RT, the Kremlin’s propaganda TV network. In 2016, he served as a middleman for Russian leaks of Hillary Clinton’s hacked emails, which helped tilt that year’s election to Donald Trump. (The Russians did not provide, nor did Assange solicit, Trump’s emails.) In 2017, he released thousands of documents on CIA hacking techniques, an act that could help only U.S. adversaries. (He made no claim, nor did the documents suggest, that the techniques had been used for domestic surveillance.)

The indictment charges him with obtaining and circulating classified documents on the U.S. military’s rules of engagement in Iraq and Afghanistan—material that, it notes, could have helped Iraqi insurgents and Taliban fighters. (The indictment notes that when U.S. special forces raided Osama bin Laden’s lair, they found copies of some of these documents among his papers.) These documents included the names of informants who expected their identities to remain confidential and who faced extreme danger as a result. Assange was once asked whether his act endangered their lives, and he replied, “Well, they’re informants. So if they get killed, they’ve got it coming to them. They deserve it.”

The turning point in Assange’s evolution from wholesale secret-stealer to dedicated ideologue may have come a little more than a decade ago. In 2010, he told a Moscow newspaper that he had obtained compromising materials “about Russia, about your government and your businessmen.” For reasons still unknown, he never released those materials, nor has WikiLeaks since done anything damaging to Russia.

But let’s take a closer look at that crucial passage of the Espionage Act: The one that says that to be charged with a crime, the person who obtained, disseminated, or received the secret must have done so “with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation.” I have italicized the words that make this requirement a very low bar. American journalists who write stories, based on classified information, about a weapon that doesn’t work, a platoon that murdered civilians, a detention center that tortures prisons, or any number of other crimes or malfeasances of vital interest to the public—these journalists may well have “reason to believe” that the information could harm U.S. policy, and as a result, even if they don’t intend to hurt America or help another country, they could be indicted under the Espionage Act.

That is the danger of United States of America vs. Julian Paul Assange: that its success in the courts would create a precedent for prosecuting others—reporters, officials, lawmakers, or ordinary citizens—who reveal information in the public interest, even if their motives are entirely pure. Whatever Assange’s motives, we should all hope that the British court keeps him away from the halls of justice here.