Does Merrick Garland, the Biden-appointed attorney general, really want his legacy to include a heavy blow to long-established press rights in the United States?
If not, Garland must drop the 17 charges under the Espionage Act against Julian Assange. This should have happened years ago but now is a key moment. The high court in London is considering this week whether to extradite Assange to the US to face those charges.
What the UK court does is important to Assange himself, who is in poor health after years of imprisonment and asylum-seeking. A decision to extradite, according to his wife, would be tantamount to a death sentence.
But the real answer to this troubling debacle lies across the Atlantic in Washington.
First, let’s deal with the argument so often heard about Assange – that he’s not really a journalist, rather a data-dumping publisher, at best, and therefore what happens to him won’t harm American press rights.
“The question of whether Assange is a journalist is a red herring,” Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, told me in an interview this week.
The charges alone, Jaffer said, seek to criminalize the process of journalism – getting government secrets from informed sources and, eventually, revealing them to the public. In this era, when far too much information is classified in the United States, we rely on reporters to pry it out and let citizens know what their government is doing in secret.
With the protection of the first amendment, American journalists have been doing just that for decades.
Consider the Pentagon Papers, which revealed the lies and misdeeds of the Vietnam war. Or the Washington Post’s and the Guardian’s reporting that exposed the National Security Agency’s global surveillance programs. Or, earlier, the New York Times’s reporting about how the US government was secretly monitoring the calls and emails of citizens without court-approved warrants.
This kind of reporting would be threatened – already is threatened – because of the charges against Assange.
You don’t have to like him or the way his WikiLeaks published reams of classified information to recognize what Jaffer calls the “profound damage” these charges create.
Imagine what a future Trump administration, armed with an Assange conviction, could do to the traditional press. Reporting would be treated as a crime, which is why newsroom lawyers have followed Assange’s prospects so closely and with so much concern.
Years ago, President Obama considered bringing charges under the Espionage Act against Assange for his receiving and publishing huge amounts of classified data about US wars in Iraq and Afghanistan, largely obtained from the US army intelligence analyst Chelsea Manning.
One infamous revelation: video of a 2007 Apache helicopter attack by American forces in Iraq that killed 11 civilians, including two Reuters journalists.
Although Obama and his justice department – no great friends of the press – strongly objected to what Manning and Assange had done, they grasped something crucial.
Charging him under the Espionage Act (an old law never intended for this purpose) would seek to criminalize the normal functions of journalism. That would especially be true for national security reporting, which relies so heavily on confidential sourcing: getting information from informed sources, verifying it, vetting it and publishing it to inform the public.
The Obama-era justice department decided against moving forward because of the “New York Times problem”. In other words, prosecuting Assange would punish and inhibit the traditional press. Great national security reporters like Charlie Savage at the Times or Ellen Nakashima at the Washington Post would bear the brunt.
Donald Trump’s justice department, unsurprisingly, saw this as an opportunity. If it had the potential to hurt the legacy news media, full speed ahead.
The “love” that Trump expressed for WikiLeaks, because it published revelations that hurt his rival, Hillary Clinton, during the 2016 presidential campaign, didn’t protect the Australian-born publisher. Assange was indicted in 2019; all but one of the 18 charges against him came under the Espionage Act.
“This is unlike anything we’ve seen before and it crosses a bright red line for journalists,” James Risen, the longtime investigative reporter for the New York Times and later with the Intercept, told me at that time.
Far beyond the effect on individual reporters and their news organizations, it’s the public that suffers when journalists are punished or censor themselves in fear.
Joe Biden’s justice department could have dropped these charges years ago but so far has let them stand.
It’s high time now to right that wrong.
Margaret Sullivan is a Guardian US columnist writing on media, politics and culture
