Hey you guys, Scott here.
It's fundraising time again at the Libertarian Institute.
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And you know, a stash, I like to send five or ten books to all the best peace groups so they have them for all their people and whatever.
Of course, the advantage of publishing these books at the Libertarian Institute is we get to do them however we want, but the disadvantage is we don't have a big marketing team and a big budget.
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All right, you guys, on the line, I've got Ben Wisner.
He is a lawyer at the ACLU for the last 20 years and director of their speech and privacy and something or other project there.
Very important.
Welcome to the show.
How are you doing, Ben?
I'm doing great, Scott.
Thanks.
Very happy to have you here.
You ACLU guys, you are good on most things and, in fact, heroic on the most important things.
So I sure value the work that you do.
Well, you know what they say?
If you agree with us half the time, you should be a member.
And if you agree with us a quarter of the time, you should be a board member.
Yeah, there you go.
I don't know what that takes.
I don't have any money to join with.
I sure like it when you sue the government for violating my rights.
And I sure like it when you stick up for people who really need sticking up for.
And in this case, for example, the American hero, even though he's an Australian, Julian Assange, rotting in a dungeon in London right now or in England right now.
And so you signed on a letter and in the name of the ACLU, but also so did a lot of great and important groups sign on to this letter that you wrote to then the or I guess still the is it still the acting attorney general?
Has Merrick Garland been sworn in yet?
He hasn't even had his confirmation hearing yet.
So it's acting Attorney General Monty Wilkinson.
And you told him one, you want to drop the appeal and two, you want to drop the whole thing against Julian Assange.
Well, what's the whole thing?
Tell me everything.
Yeah, I mean, this really for how little attention it's getting, you wouldn't know that this prosecution is one of the most significant threats to press freedom that we've had in this country.
Julian Assange is charged under the Espionage Act of 1917, essentially for publishing the government's secrets.
And we've never had in the history of this country, a prosecution under the Criminal Espionage Act for the publication of truthful information.
Now we have seen over the last 20 years or so an escalation in the use of this law to go after whistleblowers and sources.
But those people have a relationship to the government.
They have government jobs.
They know they're violating the law when they turn over information to the press.
But this really crosses a kind of Rubicon because at least by tradition, and maybe by constitutional law, we'll find out, there has always been an understanding that while it may be fair game to go after the leaker, the publishers of truthful information are off limits.
And that's why even though many news organizations have pissed off many administrations over the last decades, none of them has taken the step that the Trump DOJ did and actually file felony charges against someone for publishing truthful information.
And this really does put all national security investigative journalism in the crosshairs for reasons that we can get into.
Yeah.
And now, so the Obama government, they really wanted to indict this guy and they impaneled the federal grand jury, which was leaked to the Washington Post, if I remember it right.
And then yet, but they did not indict Julian Assange, and how come?
Well, they didn't.
That's right.
And they did.
They hauled a number of people before that WikiLeaks grand jury.
And we spoke to lots of them.
We represented some of them.
But ultimately, they concluded that despite their antipathy for Julian Assange, and believe me, the Obama administration, they were no fans of his, that they could not essentially isolate a legal principle that would enable them to criminalize Assange's conduct without also criminalizing, say, the New York Times' conduct.
They called it the New York Times problem.
And in fact, a Department of Justice spokesperson told the Washington Post during the Obama administration, we reached the conclusion that there was just no way to do this without putting more mainstream investigative journalism inside the criminal law, and they did not want to do that.
So ironically, I think, Assange and WikiLeaks thought that they would be better off with a President Trump than a President Hillary Clinton, as we know from their conduct in 2016.
And they got burned because it was Jeff Sessions and then Bill Barr as Attorney General who had been looking for an opportunity.
They would be happy not to stop with Assange.
They don't think that criminalizing what the New York Times does is a problem.
They see that as a feature, not a bug of this prosecution.
Right.
So this is the thing, right, is like everything in the world, including Hitler and Stalin and everything, this is Woodrow Wilson's fault, because he's the one who signed this law back then that still says that they can do this.
They just haven't done it yet, until now.
And remember, though, for all the evils of Woodrow Wilson and the Espionage Act, it was not until the 1980s that an individual was convicted under the Espionage Act for providing national defense information to the press.
Right.
So it had never been used to go after leakers to the press until the 1980s.
Now it's fairly established.
But as late as the 1970s, you had the CIA General Counsel testifying to Congress that he wasn't even sure it was a crime under the Espionage Act to leak information to the press.
And if it was, there had been an unprecedented crime wave in Washington going back decades, because every day there's dozens of unauthorized leaks to the press of classified information, given how much information is secret here.
So this is a relatively modern phenomenon.
Yeah.
But I mean, leakers used to be punished, but it was just for violating their secrecy agreements.
They never dared to prosecute them with espionage.
Until when?
They were not.
I mean, the first attempt to prosecute a leaker under the Espionage Act was the Ellsberg case in the early 1970s.
But that one blew up because of the gross misconduct of the Nixon administration, and the judge dismissed the case during the trial with prejudice.
So that would have been the first chance for the courts to consider whether and how the Espionage Act even applies to leaks to the press.
The first conviction wasn't until the mid-1980s, when someone named Samuel Morrison leaked some photos to Jane's Defense Weekly.
And now, you know, obviously, in the administration since then, it's become more routine, but still relatively rare.
We're still talking about, you know, a universe of less than 20 of these cases in the history of our country, notwithstanding how incredibly broad the Espionage Act is.
I just want to make one other point here before I lose the thread.
You know, I mentioned that prosecuting the publication of the government secrets is a threat to all investigative journalism.
But I think one point here that's being a little bit overlooked is that Assange isn't even an American publisher.
He's an Australian publisher located outside the United States.
And the U.S. is taking the position that our criminal secrecy laws apply to a foreign publisher outside the country.
Think about the implications of that for a minute if every country took the same position.
Right?
In recent years, the New York Times has published top secret documents out of China and out of Iran.
Clearly, publishing those documents in China and Iran is illegal.
What if China and Iran asked for extradition?
Right?
We would laugh.
But why would we laugh?
It's not enough anymore for a country that elected Donald Trump president to say, well, it's because we have a real legal system and they have a fake one, right?
We need to think about the precedent that we are setting if we're saying that every country can enforce its secrecy laws beyond its own borders against foreign citizens.
And that really has not gotten enough attention.
Yeah.
Well, and there's the whole question of, I mean, do they have any kind of legal precedent to even be able to do that or they're really just making this up?
In other words, espionage or not, if they were charging him with any other crime, he's just not under their jurisdiction.
He's not a US person in any sense here.
Well, look, I mean, there are criminal laws that extend extraterritorially.
It's not unprecedented for us to say that, for example, if you're sitting in Russia or the UK, you can't hack into our computers criminally and steal things, right?
We might bring charges in those cases.
So the idea that our laws apply overseas, that in itself is not the radical move.
The radical move is to say that our secrecy laws, which really are profoundly about loyalty to our government, should be extended to extraterritorially and around the world.
Look, I don't think that US courts will have a problem with this principle.
I think they will if the case actually does end up here.
And that still is an if.
Remember, Assange is still in the UK.
He's not in a US prison yet.
He's not in a US courtroom yet.
And he won the last round, right?
Well, I mean, he won it.
I think we all lost it in a way.
I think we lost it because the court didn't dismiss the extradition attempt for the right reason.
What the court should have said is, these charges under the Espionage Act are political charges that are not extraditable.
What the court said instead was, these are not political charges.
They are extraditable, but we're not going to send him over because of the combination of his mental health problems and the deplorable prison conditions in the US.
That part is true.
But it leaves open the precedent that countries like the United States can demand extradition of foreign citizens on these grounds.
Right.
So, look, this is not over.
Because the court denied extradition rather than granting it, it's the US that has to appeal.
You wrote that letter that you referred to in the lead-in, asking the DOJ not to appeal.
They did appeal, not a huge surprise.
You don't expect a huge change in policy positions before the senior leaders have even been installed in the Justice Department.
So I think there still will be opportunities for both public and private diplomacy to the administration to urge them to choose the wiser course, the course that the Obama administration chose, not the one that the Trump administration chose.
But in the meantime, it's going to take months or even years before this case works its way through the UK court system and before the high court in the UK decides whether Assange is extraditable.
Okay, you guys, check it out.
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Enough already.
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Now you said something in there about how, oh yeah, no, the American courts are going to go along with this too.
And I think it's already the court system in Virginia that's in charge of this, right?
So in other words, the jury will be all former CIA officers and their wives and that kind of thing.
Look, before we get to the jury, there are a lot of legal questions for the court system.
Again, this is uncharted territory to apply this law to a publisher.
So I do think that there will be motions to dismiss on constitutional grounds filed by whoever is representing Julian Assange in that proceeding.
And then you'll see groups like the ACLU weigh in again with first amendment briefs saying that this is a line that the courts should not even allow to be crossed.
It shouldn't even reach a jury.
But yeah, I mean, we're talking about the jury.
I don't think there's a region in the US where there would be a good jury for Julian Assange, right?
I mean, people on the right have no issue with criminalizing the press.
They'd like to see more of it, not less.
I was going to say people on the left, we don't really have that.
But Democrats would be happy to see Julian Assange rot in a prison cell because they blame him for Trump's election in 2016 for publishing the DNC emails and the Clinton emails, right?
So there's no real constituency of people who are going to care about Assange's fate individually and how many people are able to step back abstractly and think about the precedent that it's going to set.
So this is what happens.
This is why lawyers say bad facts make bad law.
This is why this is the nightmare scenario for press freedom.
You find a case where there is no sympathy at all for the defendant for different reasons on different sides and then use that to create a precedent that can be used a lot more broadly.
Yeah.
And it's a shame too because he could be a hero to both sides.
The right wingers resent him for the Manning leak and stuff about the wars and the left, as you said, resents him.
The liberals especially resent him for the DNC leaks and the Podesta leaks and all that.
But instead of being so negative about it, they could both see the heroism in it that like, hey, he did leak, you know, the right wingers that he did leak the DNC stuff.
So that makes up for Manning, right?
And then, you know, even before he helped Trump get elected, he did heroically post all of the, not just the State Department cables, but the Iraq and Afghan war logs upon which probably 50,000 news stories have been based in the years since.
This Assange guy is the God's gift to journalism if you're not a partisan or if you just look at it on the bright side of your partisanship of what he did for your side instead of what he did against it.
And well, the truth is, the truth is that actually news organizations do see the threat of this prosecution.
And it's not just news organizations on the left.
You saw people associated with the Wall Street Journal and even the Fox Murdoch Empire, in addition to the Washington Post and New York Times, speak out against the charges when the Espionage Act indictment was revealed in the UK.
So the media at least understands that this is a significant threat to press freedom.
I say the media organizations.
Most reporters who work for those organizations probably don't see it.
And they're focused on the wrong question.
You know, they're saying, look, this guy is not a reporter the way we are.
He doesn't have the same principles and values that we do.
They're just dumping stuff on the Internet.
They're not doing it.
But of course, the question is not whether Julian Assange is a reporter.
That's completely irrelevant legally.
The question is, what is he being charged with?
And he's being charged with possessing and publishing classified information, which is something that reporters, all good reporters, should do as part of their daily work.
And so whether you regard Julian Assange as a heroic journalist or as a foreign spy is actually not really relevant to the threat that this case poses to free press in the US.
Right.
But, you know, that's also a really important point, too.
I mean, you're right that it's the charge that matters so much.
But it's also such an important point of the professional jealousy and resentment of this guy where these American journalists and mass, with the few exceptions being the good guys, but the rest of them against who would gladly throw their own profession under the bus because they don't like this guy because he does such a better job than them.
Comes down to that, really.
I think a lot of them don't even conceptually understand why the prosecution of Julian Assange relates to what they do because they're focused on the wrong question.
And look, I think in the first iteration of the charges against Assange, I don't know if you remember this, that the charges were released in two stages.
And the first time that the charges were announced when he was dragged out of the embassy, there was just one charge.
And it was a conspiracy to violate the Computer Fraud and Abuse Act, which is an anti-hacking statute.
And it was actually a very clever way for the government to do it because it's much harder for us to argue that all journalists engage in conspiracy to hack.
Now, look, I think that charge was legally weak and factually weak.
But if they had sought the extradition on that ground alone, it definitely would have been a narrower threat to press freedom.
But then a few weeks later, they released a second indictment that had 16 more charges, including charges under the Espionage Act just for possessing and publishing classified information, which is what journalists do.
And again, this point sometimes sounds glib when I say it, but the job of a national security investigative journalist is to engage in a criminal conspiracy with their sources.
What is their job?
Their job is to go to people in government who have confidential access to classified information and urge them to turn it over so that the public can find out about what the government is doing in their name.
That is what they do.
That's what the Pulitzer Prize is awarded for every single year.
Well, I mean, I don't know.
I mean, that's the thing, though, right, is I think that there's a big supposed to be there.
And the reality is their job is to be stenographers.
Their job is to tell secrets that the establishment, that the military, or if we're talking about national security stuff, what the government wants them to tell us, even if it's still classified.
I was careful to say national security investigative journalists.
It's true that most people who call themselves national security reporters are people who wait for the phone to ring so John Brennan can tell them something that benefits the government storyline.
Those are the guys that get the Pulitzers, too.
No, I don't think so.
I mean, look, Bart Gellman has won it three times, right?
He was one of the lead Snowden reporters.
He was in Iraq showing the lie of weapons of mass destruction.
Glenn Greenwald and Laura Portris won it for the Snowden stories.
Oh, gosh.
You know, so- You know, Gellman's probably the best guy ever at the Post, and Greenwald is no mainstream New York Times type reporter, so I'm just clarifying that.
There is a bit of myth and reality there, right?
Like Charlie Savage is one of the most prominent national security guys, and his job is to print whatever his CIA sources tell him to print, and he's happy to do it.
He's not an investigative reporter in the way that, say, a Cy Hirsch is an investigative reporter.
I agree.
Yeah.
So, he's a little bit more- So, in other words, by definition, you're already saying, no, no, no, I mean the good ones.
Never mind the rest.
I got you.
I'm making a point about why journalism is in the First Amendment to the Constitution.
You know, Jefferson said he'd rather have newspapers without a government than a government without newspapers, right?
We really depend on reporters essentially convincing people to give the government a bad day in order for us to know the most important stories.
We wouldn't have known about black sites and extraordinary rendition, and the CIA's torture on Abu Ghraib, and the global mass surveillance system that was enacted in our name, what really happens with drone strikes, right?
We wouldn't have known any of these things if some reporters hadn't convinced some sources to risk their careers and their freedom to share this kind of information.
And that's what's on the line here, even if, as you say, most mainstream news organizations aren't doing enough for a lot of this reporting.
And as you mentioned, too, about the liberal side of political power is so resentful about 2016, but the charges here are all related to Manning.
And think about how important that leak was to the Iraq and Afghan war logs and those State Department cables.
I mean, this is world historical greatness, unless you're a general, in which case I feel very sorry for you.
For everyone else on the planet, we deserve to know this stuff.
And in fact, it was deliberate by Manning to leak, and maybe this is all Manning had access to, was secret and confidential level stuff.
In other words, plenty scandalous, but none of it being the secret identities and locations of all our spies in China or some kind of horrible thing that got American interests severely compromised.
It was just the horrible, scandalous truth that demanded to be exposed and became so through this avenue.
Let's also remember that the way that WikiLeaks published that information was by partnering with Der Spiegel, The Guardian, and The New York Times.
So WikiLeaks didn't get that information from Manning and slap it up at WikiLeaks.org.
It worked carefully with those news organizations that did what they ordinarily do, which is had conversations with the government before publication.
As you say, it led to tens of thousands of stories around the world that were a vital public interest, won journalism awards.
This was, of all the things that WikiLeaks has done, probably the most admirable was the publishing around the Manning leaks.
But we're in a different world in 2021 than we were in 2011 or 2013 when the Obama administration decided not to bring these charges, right?
I'm sure there was an argument in the Obama administration between people who wanted to bring them and then the cooler heads who prevailed.
Would that argument come out the same way in 2021 when all of these career Democrats have a different level of hostility towards Julian Assange?
Would the equities be balanced in the same way?
I don't know.
We're going to find out in the next couple of years.
Yeah.
This question, in other words, do they have any principle at all or not?
Yeah.
Oh man, what a horrible position to be in to have to rely on them having principle.
It's important, isn't it, too, that Manning went to The New York Times and The Washington Post and Politico and was ignored and turned away before she went to Julian Assange?
Yeah.
I mean, this kind of we hear this kind of story all the time.
There's no question.
And I think this is what you're getting at, that WikiLeaks at that time fulfilled a vital role that was not being played by other news organizations.
Now, ironically, that pioneering role has now been replicated.
And the same kind of technology that WikiLeaks used for anonymous encrypted submissions is now available through a program called SecureDrop to all the major news organizations in the world, The New York Times, The Washington Post, ProPublica, The New Yorker.
They all use SecureDrop, which is basically the same technology that WikiLeaks used for its submissions.
And so, you know, they have now kind of adopted that.
They now realize that if they want to do important journalism, if they want to publish Trump's tax returns, right, they have to not do the same kind of ivory tower, you know, approach to sources they haven't heard of.
They need to democratize access, democratize access to their platforms the way WikiLeaks pioneered.
Right.
All right.
Well, listen, so you mentioned that they did not drop the appeal there, you know, pursuing it.
But you guys must have gotten some sort of response for just the sheer number of major organizations that signed this letter with you, no?
Not that I'm aware of.
It was, I mean, look, there was a public letter and it was written to a placeholder official.
The real audience for it was the future attorney general, Merrick Garland, and the people in the White House who are going to be involved in this kind of decision, even though they probably shouldn't be.
Did The Post and The Times cover the letter?
Yeah, The Times covered it, I think, very fairly with a good quote from Ken Roth from Human Rights Watch, the right kind of official you want quoted if you're trying to get the Biden administration's attention.
So yeah, I think there was really good coverage, at least in The New York Times.
I didn't check elsewhere of the letter, but you know how hard it is to break through to public consciousness.
And I suspect that the more effective advocacy here is not going to be public letters, but private diplomacy.
And I hope that the publishers of news organizations, you know, the Salzburgers of the world, not the reporters, care enough about this that they will go to the Biden administration quietly and say, you should let this one go.
You know what, man?
What if you guys put on an event, you know, kind of a small thing where you bring together all the lawyers of the major newspapers and TV channels, and you say, hey, guys, this is a pretty big deal, don't you think, kind of thing in a setting like that, and get them on board for this, where they have to report back to their bosses that I was talking that Weisner guy, and he was making some pretty inescapable arguments.
Well, I think, look, I also think that they are watching this closely.
I think it's a good idea.
And probably the Reporters Committee for Freedom of the Press would be the right entity to convene a conversation like that.
So good.
I got something out of this conversation.
Thank you, Scott.
Good.
It's like somebody got something out of one of these interviews.
Now, listen, I really appreciate your efforts here.
I think Julian Assange is a hero.
He ought to be sitting in the castle, not in a dungeon.
And it's absolutely sick what's happening here.
And as you say, there but for the grace of so far, the First Amendment goes every one of us.
So yeah, that's right.
All right.
Thanks.
Appreciate it very much.
Take care.
All right, you guys.
That is Ben Weisner.
He's a lawyer at the ACLU.
The Scott Horton Show, anti-war radio, can be heard on KPFK 90.7 FM in LA, APSradio.com, antiwar.com, scotthorton.org, and libertarianinstitute.org.
