Categories
Commentary Featured

Sunshine Week Round-up: The new DOJ, Press Freedom, and Julian Assange

March 14-20 is Sunshine Week, an annual celebration of transparency and open government, featuring panel events exploring the public’s right to know, how to protect journalists, and how to improve access to essential information.

This year’s Sunshine Week is a particularly important opportunity to highlight threats to a free press, as the United States has seen a rise in journalist arrests, an erosion of local journalism, and an unprecedented indictment against a publisher.

As Merrick Garland has been confirmed as the new Attorney General, rights groups and journalists alike have been asking how the new Department of Justice will handle press freedom issues, particularly the prosecution of Julian Assange.

ACLU: “Merrick Garland Can Transform the Department of Justice. Will He?”

The free press faced unprecedented attacks under the Trump administration, from Trump calling the press the “enemy of the people” to federal officials targeting journalists at racial justice protests last year. The freedom of the press is fundamental to American democracy, and senators questioning Garland should ask if he will defend freedom of expression and freedom of the press. This includes asking whether he would support a federal journalists’ shield law and if he agrees with Attorney General Holder’s conclusion that whether or not one considers Julian Assange a “journalist,” there is no way to prosecute him for publishing classified information without opening the door to similar prosecutions of important investigative journalism. 

Jameel Jaffer, Knight First Amendment Institute: “The Biden Administration Should Drop the Assange Case”

Of Trump’s many attacks on press freedom, however, it’s his Justice Department’s indictment of Julian Assange that could have the most significant implications over the long term. As I explained here and here, the Justice Department’s indictment of Assange focuses principally on activity that national security journalists engage in “routinely and as a necessary part of their work”—cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information. As a result, a successful prosecution of Assange would have far-reaching implications both for national security journalists and for the news organizations that publish their work. This isn’t an accident. It’s likely why the Trump administration filed the indictment, as Jack Goldsmith observed here.

President Joe Biden plainly does not share Trump’s attitude toward the press. But the Assange case will present the Biden administration with an early test. 

Knight First Amendment Institute: “A First Amendment Agenda for the New Administration” 

9. Disclaim the use of the Espionage Act for the prosecution of journalists, sources, and publishers.

Both the Bush and Obama administrations relied on the Espionage Act to prosecute government insiders accused of providing sensitive information to the press. The Trump administration continued this trend, charging six individuals for disclosing information on matters such as possible war crimes committed in Afghanistan, racially discriminatory investigative practices within the FBI, and Russian interference in the 2016 election. It also charged Wikileaks founder Julian Assange under the Act, in the first use of the Act against a publisher. The use of the Espionage Act in these cases raises profound First Amendment concerns and threatens journalism that is crucial to our democracy. The Biden administration should reserve the Espionage Act for cases of classic espionage, and it should affirmatively disavow the use of the Act for the prosecution of journalists, sources, and publishers.

Dan Froomkin, Salon: “Questions for Joe Biden: There’s still so much we don’t know” 

The state of the media

  • One of the country’s major media outlets, Fox News, traffics in outright disinformation and far-right propaganda, arguably even incitement. Most other media outlets, by contrast, respect facts, to a greater or lesser degree. Do you personally see a gulf between Fox and the others? Would you encourage the public to consider them differently? Should the White House?
  • Why is your administration still prosecuting Julian Assange? Did you approve the decision in February to continue seeking his extradition from the U.K.? 
  • Will you pledge not to use the Espionage Act of 1917 to pursue people who leak to journalists?
  • How concerned are you about the decline of local journalism, and what do you think should be done about it?

Lawfare: “Here’s Merrick Garland’s Orientation Memo for the Trump-Era Hangover on Press Freedom” 

…there are several cases where the Trump Justice Department ventured into undiscovered territory. The first category of such cases involves legal actions that are truly unprecedented, while the others are so wrapped up in President Trump’s attacks on the press that one wouldn’t expect to see them but for President Trump himself. 

Julian Assange

With respect to the first category, the clearest example is the Julian Assange spying prosecution. As noted above, recent administrations have expanded the use of federal spying laws, and especially the World War I-era Espionage Act, in attempts to criminalize the disclosure of national defense secrets to the press. Never before, however, has the Justice Department secured an indictment against an individual outside of government based on the mere act of publishing those secrets. But that is exactly what the Trump Justice Department succeeded in doing in the Assange case after the Obama team declined to indict. 

It very much remains to be seen what will happen with the Assange case. In early January 2021, a British court denied an extradition request from the Justice Department, citing a high risk that Assange might kill himself in U.S. custody, but otherwise endorsing the government’s legal theories in the case, including its “pure publication” claims. And there will undoubtedly be some pressure to pursue the case, given that the government has long taken the position, though never in the direct prosecution of a reporter, that the act of disclosing secrets to the public, even by the press, is indeed covered by the Espionage Act. The Justice Department has vowed to continue to pursue extradition and appealed the lower court’s denial in February. 

Whistleblowers Blog: “What Can New AG Merrick Garland Do For Whistleblowers?” 

Garland’s record on whistleblowing as a Federal judge is strong. In 2004 and 2008 he penned opinions that supported or expanded the scope of the False Claims Act, America’s premier whistleblower law. In 1979, Garland served on a DOJ panel and demonstrated a strong understanding of the False Claims Act and its importance as a whistleblower and anti-fraud law. He has also defended strong whistleblower protections against retaliation

In a recent editorial, Whistleblower Network News (WNN) called on Garland to advocate for essential changes to laws that concern whistleblowers, citing issues with the False Claims Act and other more recent laws. The editorial states that the False Claims Act can be further modernized to clarify the contentious “materiality” loophole that has let many companies off the hook. The piece also mentions the 2020 Anti-Money Laundering whistleblower law, which it claims requires serious revision to be effective. While fixing these laws will require cooperation of the legislature, Garland could single-handedly stop whistleblower prosecution under the Espionage Act, an antiquated law that both the Obama and Trump administrations used to stifle government whistleblowing. National Security Agency (NSA) whistleblower Reality Winner and many others still languish in federal prison as a result of what legal experts have said is a gross misuse of the Espionage Act.

 National Law Review: “Message to Judge Garland: Make DOJ the ‘Whistleblower’s Advocate’” 

In a historic speech entitled “The SEC as the Whistleblower’s Advocate,” the then-Chairman of the SEC, Mary Jo White explained the new relationship between the Commission and whistleblowers: “It is past time to stop wringing our hands about whistleblowers. They provide an invaluable public service, and they should be supported. And, we at the SEC increasingly see ourselves as the whistleblower’s advocate.” 

 Congress should demand that the new Attorney General follow this example. Judge Garland has the background and experience to transform the Justice Department’s whistleblower programs. Congress must ensure that this transformation is not delayed. It is time for the next Attorney General to make the Department of Justice the “Whistleblower’s Advocate.” 

Categories
Commentary Featured Press Release

How Will Merrick Garland’s Justice Department Handle the Assange Case?

The U.S. Senate is reportedly on the verge of confirming President Biden’s nominee for Attorney General, Merrick Garland.

The next Attorney General will have a major influence on many important matters, including the fate of the U.S. government’s case against Julian Assange.

Unlike many prominent officials from the Trump administration, Garland hasn’t made any public comments about Assange or the case. But it’s worth looking into Garland’s record and what he’s saying about his nomination for insight on how he’ll handle what has been described as the most important press freedom case in a generation

Garland’s First Amendment Record 

Garland spent 23 years as a federal appellate judge, seven of those as chief judge of the influential D.C. Circuit Court of Appeals. Press freedom groups have delved into his judicial opinions for insights into how he might handle First Amendment issues as Attorney General.

The Reporters Committee for Freedom of the Press found some cause for optimism, noting that Garland “has taken strong stands on First Amendment issues” in a number of cases. Specifically, RCFP notes, Garland defended the media’s right to publish questionably obtained information, supported a stronger reporter’s privilege, and showed a commitment to government transparency in his decisions on FOIA cases.

What happened at Garland’s confirmation hearing?

Garland’s nomination passed the Senate Judiciary Committee last week on a 15-7 vote after a relatively routine process. Press freedom issues were not a major theme of Garland’s confirmation hearing, and the Assange case was not brought up at all, but a few things stood out as potentially relevant to how Garland would act as Attorney General.

Garland testified that he would not allow politics to influence decisions about prosecutions and would resist pressure from the White House. On its face, that’s a welcome change of tone. It was the Trump Justice Department that politicized the Assange case after the Obama DoJ had previously decided that prosecuting Assange would create a “New York Times problem.”

How might this be a cause for concern? We want the Attorney General to ignore political concerns when making prosecutorial decisions, right? Yes. But coming on the heels of the precedent-shattering Trump administration, there are a lot of injustices that need to be undone. Simply letting bad cases play out allows injustice to fester.

Garland’s message here isn’t completely clear. One could interpret Garland’s words as an assurance that he will be independent, and not as an indication that he will allow his prosecutors to unjustly continue bad cases. Or one could extend that logic in the other direction: Garland might give Justice Department attorneys significant leeway to continue their work. He specifically mentioned allowing “ongoing cases” to play out, and attempted to contrast himself with predecessor William Barr’s willingness to intervene in criminal cases.

The Bottom Line

In all likelihood, Garland will be confirmed without ever being directly pressed on the Assange case. So we are unlikely to have clarity on how he’ll handle the matter in the near future.

We should be cautiously optimistic about Garland’s pro-transparency and pro-First Amendment record. And his promise to be independent should count as a plus — if true, it means he would be more resistant to other voices in the administration who might have animosity toward Assange.

There’s reason to believe Garland will arrive at a similar conclusion as former Attorney General Eric Holder — that, as the ACLU notes, “there is no way to prosecute [Julian Assange] for publishing classified information without opening the door to similar prosecutions of important investigative journalism.”

But Garland’s “by-the-book” ethos suggests he will likely defer to staff prosecutors who have already invested significant time and resources into pursuing Assange — at least for the time being. Being a deliberative leader is usually a good thing, but dragging your feet when confronted with manifest injustice isn’t. In this case, Garland might ultimately arrive at the right conclusion, but take his time getting there if he is hesitant to overrule his prosecutors and bring a swift end to Assange’s case. 

In other words, Garland’s deference may trigger the old legal maxim: “justice delayed is justice denied.”

Categories
Commentary Featured

Election Hot Take: 5 Reasons Pardoning Assange Could Drastically Enhance Trump’s Legacy

Even though we are all still recovering from the election (and there are still some pending legal challenges to consider), we thought we’d take a few minutes to unpack an idea that many people have floated on social media and opinion columns.

Here’s one example, from Thomas Knapp, the director of the the Garrison Center, writing at Counterpunch:

Headline: America in Transition: Two Things Donald Trump Can Do to Burnish His Legacy

Trump has the power to pardon. He should use that power in unprecedented fashion, emptying the federal prisons of non-violent drug offenders and other assorted victims of a “justice” system gone haywire.

In particular, he should pardon (in alphabetical order) Julian Assange, Chelsea Manning, Edward Snowden, and Ross Ulbricht.

Assange and Snowden have been charged, but not yet tried, with telling the American people the truth about their government’s crimes. Manning has been convicted for the same heroic acts. President Obama commuted her sentence, but it’s time to restore her rights and recognize her service to her country.

Knapp isn’t the only one floating the possibility of a pardon for Assange. So let’s break down why this might be a great idea for Assange, for Trump, and for America.

1. It Would Transform Trump into the Defender of American Values 

Presidents rarely get to define their own legacy, and are often victims of external circumstances. Trump would love for his legacy to be about economic growth and reworked trade deals, but that’s unlikely to be how history remembers him. He has his tax cuts, and his defenders will make claims about economic strength…that was ultimately derailed by the COVID pandemic.

But there’s the rub. You can’t summarize the Trump presidency without fixating on COVID. The next sentence would probably be something about the divisiveness of the cultural and political moment. Much of that is beyond Trump’s control, but tell that to Herbert Hoover and Lyndon Johnson. Those are the breaks.

If Trump wants to shake up the narrative on his presidency, he can use one of his most important powers to do so. Pardoning Assange, Snowden, Manning, or a combination of the three would drastically reshape Trump’s legacy. It would become impossible to spin a narrative about Trump and our political climate without noting his magnanimous gesture. The speech almost writes itself:

#Gamechanger.

 2. It preempts Joe Biden 

We can’t be sure what Joe Biden will do as president when it comes to Assange. Maybe he’s weighing a pardon himself. Maybe he’ll merely drop the extradition request. Maybe he’ll actually continue the prosecution. 

Whatever Biden’s hypothetical course of action, a Trump pardon takes the decision out of Biden’s hands and gets Trump all the credit. 

Biden has a lot of work cut out for him uniting the Democratic Party and its coalition. They won’t have Trump to kick around any more, and the Left will be keeping a close eye on Biden. Taking Assange (and others) out of play gives Biden one less move he can make to appease key parts of his base.

3. It makes things more difficult for the Biden administration.

Similar to our last point, sending a powerful message in support of press freedom and releasing Assange causes headaches for the incoming president. Remember: Assange, Manning, and Snowden are all charged with crimes committed during the Obama-Biden administration. Allowing these transparency advocates the freedom to speak truth to power is a great way to undermine those in power.

4. It strikes at the Deep State.

Whatever your thoughts on Trump, let’s get one thing out of the way: the Deep State is real. Maybe you’d rather not call it that, and prefer “the national security establishment,” the “military-industrial complex,” or just “the bureaucracy.” Regardless of the label, there are career bureaucrats who transcend political parties and seek to accumulate power. They hate people like Assange, who operate outside established institutions. And Trump (usually) hates them back. What do they say about “the enemy of my enemy?”

The more “establishment” types prefer the predictability of someone like Joe Biden over the likes of Trump, who they feel less capable of controlling. It’s one of the reasons (although not the only one) that many establishment Republicans and hawkish (neoconservative) figures were “Never Trumpers,” “Lincoln Project” supporters, or even supported Joe Biden. Trump can tell them off by pardoning Assange and others.

5. It’s just the right thing to do.

Call it “saving the best for last.” Or chalk it up to cynicism about politics. But we can’t write a list like this without pointing out that the persecution of journalists and whistleblowers is simply wrong, and any action that pushes back against that persecution is a positive move.

Assange is not a U.S. citizen. He is being literally charged with “Espionage” for activities undertaken while he was in Europe. And even if you object to him being characterized as a “journalist,” the activities he is being charged over are textbook journalistic activities: newsgathering, working with sources, and publishing. Assange might not have operated like an old-school journalist, but that’s because he’s part of the evolution of journalism that is more open-source and accessible. Countless journalists, scholars, human rights organizations, and legal groups have all condemned the prosecution of Assange because it strikes at the heart of the free press and would make reporters all over the world subject to government persecution simply for doing their jobs: trying to tell the public the truth about things they have a right to know.