By Joe Lauria – Jul 13, 2021
The sixth and final part of a six-part series on Julian Assange and the Espionage Act.
The most significant change in the Official Secrets Act of 1989 is that it largely brought it into line with the McCarran-amended Espionage Act: intent was removed, thereby eliminating the public interest defense. A 1988 government White Paper considering changes to the OSA, stated:
“Suggestions have been made that the law should provide a general defence that disclosure was in the public interest. The object would be to enable the courts to consider the benefit of the unauthorised disclosure of particular information, and the motives of the person disclosing it, as well as the harm which it was likely to cause. It is suggested, in particular, that such a defence is necessary in order to enable suggestions of misconduct or malpractice to be properly investigated or brought to public attention.
The Government recognises that some people who make unauthorised disclosures do so for what they themselves see as altruistic reasons and without desire for personal gain. But that is equally true of some people who commit other criminal offences. The general principle which the law follows is that the criminality of what people do ought not to depend on their ultimate motives – though these may be a factor to be taken into account in sentencing – but on the nature and degree of the harm which their acts may cause. …
It cannot be acceptable that a person can lawfully disclose information which he knows may, for example, lead to loss of life simply because he conceives that he has a general reason of a public character for doing so. So far as the criminal law relating to the protection of official information is concerned, therefore, the Government is of the mind that there should be no general public interest defence and that any argument as to the effect of disclosure on the public interest should take place within the context of the proposed damage tests where applicable.”
In other words, strict liability would be imposed: either one broke the law, or one didn’t, no matter the reason.
The changes were spurred by the fallout from a case involving the 1982 British sinking of the Argentine warshipGeneral Belgrano during the Falklands/Malvinas war, which killed 360 people. Clive Ponting, a senior civil servant at the Ministry of Defence at the time, leaked a document to a Labour MP exposing the government lie that it had acted in self-defense.
In fact the document showed the Belgrano was sailing out of a British-declared, 200-mile exclusion zone around the Falklands. Ponting was put on trial in 1985 for violating the Official Secrets Act and mounted a public interest defense.
Though the judge indicated to the jury that it should find Ponting guilty, infamously saying “The ‘public interest’ is what the government of the day says it is,” the jury acquitted Ponting on the grounds that what he had done was indeed in the public interest.
It was a great embarrassment for Prime Minister Margaret Thatcher, who had staked her re-election on the war. So her government set about amending the Act to remove the public interest defense altogether. It also explicitly made it a crime for anyone, including a journalist, to commit the offenses of possession and disseminating classified information.
The implications for Assange of these changes are stark. In her judgement in Assange’s extradition hearing, Judge Vanessa Baraitser upheld the Espionage Act charges against him because she said they met the criteria of his alleged activities being a crime in both the U.S. and Britain — a requirement in an extradition case. Before the 1989 removal of the public interest defense, which does not exist in the Espionage Act, that would have less likely been the case.
Being unable to explain that the intent of one’s actions was in the public interest is fatal to a case like Assange’s. Daniel Ellsberg has many times told the story that when he was on the witness stand in his Espionage Act case the judge prevented him from explaining why he had leaked the Pentagon Papers.
The 1989 Act repealed Section 2 of the 1911 act, which criminalized the mere character of a defendant and took the burden of proof from the prosecution. It also added a Section 5 that explicitly makes members of the public, which would include journalists, liable to prosecution.
According to a House of Commons study “if a member of the public (or any person who is not a Crown Servant or government contractor) has in their possession official information in any of the six categories, and this information has:
• been disclosed to them by a Crown Servant without lawful authority; or
• was entrusted to them by a Crown Servant in confidence, then it is an offence to disclose this information without lawful authority.”
Among the six categories of unauthorized disclosure include “• Security and intelligence • Defence • International Relations • Information which might lead to the commission of crime and • Foreign confidences.” This clearly jeopardizes any reporter who is given “official information” by a whistleblowing source.
There may be worse to come. Proposed changes to the 1989 Act by the Boris Johnson government, which would give intelligence agencies “the tools they need to disrupt hostile state activity,” have alarmed journalists even further. A National Union of Journalists spokesman, referring to the proposals by the Law Commission in 2017 to make gathering secret information a crime, told The Guardian: “The union expressed opposition at the time because the proposals included making it easier to prosecute journalists and increased the likelihood of conviction.”
Obama’s ‘NYT Problem’
After the Pentagon Papers case, the Gerald Ford and Ronald Reagan administrations threatened, but did not follow through, with Espionage Act indictments against the press. The Ford administration in 1975 discussed indicting journalist Seymour Hersh after he reported in The New York Times that U.S. submarines were spying on Soviet communications. In 1981 the Reagan Justice Department threatened but backed down on indicting author James Bamford for his groundbreaking book on the National Security Agency, The Puzzle Palace.
A reason the Espionage Act was not used against journalists until Assange, even though it could have been, is because of the Act’s inherent contradiction with the First Amendment. The Barack Obama administration aggressively used the Act against press sources, indicting more than any administration before.
When WikiLeaks published the Iraq and Afghanistan war diaries and the State Department cables in 2010, an incensed Obama Justice Department empaneled a grand jury with the intention of indicting Assange under the Espionage Act.
Then Vice President Joe Biden said if Assange conspired to get the classified material then his case was closer to the actions of a “high-tech terrorist” than to the Pentagon Papers.
Though prosecutors tried to construct a case that Assange was complicit with his source Chelsea Manning in illegally obtaining defense material, they ultimately concluded that Assange was working as a journalist and his prosecution was complicated by the First Amendment.
As The Washington Post put it in 2013 when it explained the Obama DOJ’s decision not to prosecute Assange:
“Justice officials said they looked hard at Assange but realized that they have what they described as a ‘New York Times problem.’ If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper.”
In fact, the documents that Assange has been indicted for releasing on Afghanistan, Iraq and Guantanamo were the exact ones reported on by The New York Times, The Guardian and WikiLeaks’ other media partners, but only Assange has been prosecuted.
The Political and Class Nature of These Acts
While the overt intentions of legislators in Britain and the U.S. in enacting these laws may have been to combat foreign espionage, the broadness and complexity of the language left open its use, intentionally or not, against the press and the interests of the public. Instead, these Acts protect the interests of a class of people who have accrued vast power and are responding to the crisis of their rule with increasing aggression against anyone who threatens it.
Two U.S. presidents came close to prosecuting journalists and a third has indicted Assange for publishing defense information. Wilson intended the Espionage Act to censor the press. Though Congress defeated that effort it left an Act that has been used after publication to punish the press on the grounds of “national security” defined by the government of the day.
The British legal scholar David Glyndwr Tudor Williams warned back in 1965:
“It is surely desirable that the operation of the Official Secrets Acts should be severely confined. They should not be wielded as an all-purpose weapon, whatever the literal wording of their provisions. They should not be invoked unnecessarily – where other appropriate laws are available – or for trivial considerations. Their only admissible purpose in a democracy should be to restrain and punish espionage, gross breaches of trust and gross carelessness in respect of State secrets. They should not be used to intimidate the Press and to encourage a timidity in the handling of official information which in the end deprives an administration of the scrutiny and criticism necessary for efficiency and responsibility. If they are used too readily to stifle exposures of governmental inefficiency and corruption they could become as oppressive as the law of sedition once was.”
But indeed that is how they have now been used. And for a political purpose: to protect the interest of people in power.
In a 1990 academic paper, Australian scholar Barbara Hocking quoted journalist Tony Bunyan in his 1977 bookThe Political Police in Britain:
“In an analysis of the political uses of the criminal law in the United Kingdom, Bunyan turns this theoretical myth around: the fundamental purpose of the criminal law is the maintenance of a political order acceptable to the British ruling class; this was the primary purpose of the secrets legislation: ‘The British state has available to it the whole of criminal law for use against political opposition: the laws used against political activists embrace those normally used against the criminal and those for maintaining public order.’”
A Shattered Notion
Both British and U.S. espionage legislation throughout their histories have been as much political as legal instruments, allowing punishment not only for foreign spies, but for government officials who leak embarrassing information and for journalists who publish it.
Until now a difference between the Espionage and Official Secrets Acts has been the First Amendment. Without one, Britain has been more easily able to prosecute journalists. That led to the notion that the U.S. is better off because it does not have an “Official Secrets Act.” But the indictment of the journalist Assange, despite the First Amendment, has shattered that notion, giving the U.S. in effect an Official Secrets Act of its own.
At the time of the Pentagon Papers case, former U.S. Secretary of State Dean Acheson called for a “severe official secrets act” to go after journalists, not acknowledging that the U.S. already had one in the Espionage Act, which has now been proven with the indictment of Assange.
The political and class nature of these British and U.S. laws that go beyond classic foreign espionage to endanger journalists has never been clearer than in the Assange case, a man clearly seen as a class enemy for exposing rulers’ crimes and corruption.
Assange in the Dock
After three previous presidents came close to prosecuting journalists for possessing and publishing defense information — FDR in 1942, Nixon in 1971 and Obama in 2011 — the Trump administration unveiled an Espionage Act indictment shortly after Assange’s arrest in April 2019. Trump’s secretary of state tried to justify it by saying the U.S. had universal jurisdiction to prosecute but the First Amendment wouldn’t apply to Assange.
On the first day of Assange’s extradition hearing, prosecutor James Lewis QC directly addressed the press box. He said the prosecution was not about the press, because Assange was not a journalist. This was a tacit acknowledgement that the Espionage Act charges are in conflict with the First Amendment.
After numerous defense witnesses testified that Assange had engaged in journalistic activity (as the Espionage Actindictment against him itself describes), the U.S. changed its approach. The prosecution essentially admitted that Assange was indeed acting as a journalist, but that 793 (e) of the Espionage Act made no exceptions for journalists: Assange had unauthorized possession of defense information and had disseminated it to unauthorized persons. (There is a bill in Congress that would amend the Espionage Act to make such an exception for the press.)
Assange’s judge, Vanessa Baraitser, ultimately denied the U.S. extradition request on Jan. 4, on health grounds. But her 134-page judgement agreed with the U.S. on every other point that criminalizes journalism.
If the U.S. wins the appeal it filed on Feb. 13 in the London High Court it can try Assange in the U.S. on the Espionage Act charges that went unchallenged by Baraitser.
Baraitser’s decision underscored the close alignment of the Espionage and Official Secrets Acts. Since in an extradition case an act must be a crime in both countries, what Assange is accused of must be prohibited under both Acts. In her judgement, Baraitser pointed out how Assange would be just as liable under the Official Secrets Act:
“Section 5 of the OSA 1989 imposes criminal liability on a third party who comes into possession of information which has been disclosed to them by a Crown servant without lawful authority and who further discloses it in the circumstances prescribed by section 5. It applies to any individual, including a journalist, who is not a Crown servant, a contractor or a notified person, and it applies when protected information is published which caused damage to the work of the security and intelligence services.”
The damage Assange has done to these services is to their reputations, which is why they have come down so hard on him. The government has been unable to prove harm to any U.S. informants or service members as a result of any WikiLeaks publication. This became clear during Assange’s extradition hearing.
Assange’s treatment is not unusual, seen in the context of the long U.S. history of repression of a free press despite the First Amendment. Part of that repression has been the 1917 Espionage Act and its amendments, which helped set the stage for the Trump administration to trigger the first indictment of a journalist on an espionage charge.
Should Assange be extradited and face those charges in U.S. federal court it would fulfill the lust of reactionaries from the founding of the country to punish journalists for uncovering their secret crimes and corruption.
Featured image: The General Belgrano (Public Domain/Wikimedia Commons)