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Notes -
Julian Assange Walks Free
A long time ago in a political climate far far away, there was a confluence of movements rallying around concepts of peace, openness, and freedom. There was the anti-war movement, which has a long and storied history across many cultures at many times, which was in the midst of a high-water mark in the US, due to war fatigue (and war struggles) in both Iraq and Afghanistan. There was the free and open tech/software/internet movement, still riding the old 90s consensus that digital devices connecting people and places could only be a force for good in the world, believing that the only threats to tech's ability to bring peace, harmony, and utopia to the world would be if corporations killed freedom and openness with closed source control or if governments did anything at all to regulate tech. Finally, this all came together with the movement that "information wants to be free", that if only sunlight could be let in to disinfect all the places where government and shadowy cabals (but I repeat myself) were gathering to close things down and control stuff, then it can again, only be for the good of the world, cleaning up any questionable actions people might want to take in secret due to the threat of it being revealed. Of course, the tech/software/internet axis was the Anointed One that could deliver all information into the Promised Land of Freedom.
Julian Assange, Wikileaks, and The Forever Wars formed the peak of this confluence, and to many, he delivered precisely what they were hoping for. Troves of classified documents and videos streamed through the web, potentially from all sorts of sources, who could hopefully conceal their activities via the magic of internet technology. Some of those sources would ultimately be discovered and become household names: Manning, Snowden, and to a lesser extent in importance, but greater extent in nominative anti-determinism, Reality Winner. Leaking classified information is not new to the US (see also Pentagon Papers, etc.), nor is it solely a US phenomenon (who remembers the Panama Papers or a list of other et ceteras here, too?), but for a US-centered audience, these are some of the most well-known examples which contributed significantly to the general zeitgeist of the times.
Many leaks have been somewhat more-or-less routed through "traditional journalistic" outlets. This line has always been fuzzy, and it remains so today, with examples like Matt Levine's fascination with Hunterbrook, a newspaper that is also a hedge fund. But the inherent fuzziness of the boundaries here left the situation wide open to competing and clashing intuitions. Was Wikileaks a "journalistic outlet"? Was Assange a "journalist"? Was there just some quantity of editorial writing that they must produce to go along with their document dumping in order to clear the bar? Was there some other set of "journalistic duties" that they must uphold in deciding what to publish, or how? Some people thought that there could be distinctions to be made and harangued over what precisely they should be. Others just thought, "Information wants to be free; tech will get us that; utopia follows," and figured that the most expansive interpretations of First Amendment law were either just correct or at the very least a useful cudgel to drag more traditionalists into accepting the movement. Others yet, such as CIA Director Mike Pompeo, representing the forces of closedness and government control, called Wikileaks a "non-state hostile intelligence service", trying to sever any link from journalism or First Amendment protection.
Most of the story is well-known. Assange was arrested by US allies and kept in limbo under various political pressures. The US obviously pushed for extradition, so he could be prosecuted there. Other governments worried about such a fate and pushed back. The result of his precarious situation was that he was stuck hiding out in Ecuador's embassy in the UK for years until he was ultimately arrested and then imprisoned for years further. This week, an agreement was made - the US would drop a variety of charges they wanted to bring against him, he would plead guilty to one count of violating the Espionage Act, and he would now walk free to return to his home country (Australia).
Assange's case followed the ebbs and flows of the general movement regarding openness/freedom of tech/internet/information being sunlight disinfectant. In the early 2010s, he was not charged for his role in the major Manning leaks; at that time, the Obama administration said that they could not distinguish his actions from that of a journalist. But then Trump happened. Assange was never charged for any role he played in Wikileaks' involvement in the Mueller-era Trump/Russia saga, but I don't think this event can be understated for how significantly it impacted the general movement. Suddenly, a huge number of folks had to figure out how they felt about a discordance between their love of the movement and their hatred of Trump, for it seems that the very principles espoused by the movement helped Trump in some way, which was the most verboten of cardinal sins. Losing many of these supporters was likely, from a practical standpoint, a major factor that enabled all of the subsequent developments in getting Assange charged, arrested, and ultimately, this plea deal "resolution".
In the aftermath, the core fuzziness and major tensions remain fuzzy and tense. The NYT describes it well:
They emphasize that the fuzzy, tense aftermath remains "ambiguous", with no clear resolution on how to draw specific lines. In essence, I would say that the article espouses a position that, if the First Amendment were actually held to its true meaning, then what Assange did was not actually a crime; it was just a normal, protected act of a normal, protected journalist. They worry that the ambiguity could have been resolved in the other direction, with courts deciding that such prosecution does not violate the First Amendment, which would be a result that they think is wrong as a matter of, I don't know how to put it, "True Law".
...which, of course, brings us back to where everything ultimately brings us back to - Donald Trump. I can't pass up incredible hypotheticals that cut to the crux of things and make all the partisans want to switch sides. Suppose Trump made what could have been argued to be a false business record in the state of New York with the intent to conceal something about Assange's actions related to this guilty plea. Would the NYT still think the true reality is that Assange actually pled guilty to a non-crime? Would they say that Trump could have an appeal to the courts of law, not the courts of fact, by saying, "No dawg, that's not a crime"? Or would they say that Assange's plea deal settles the matter, thoroughly establishing the fact that such actions absolutely are a crime, with no First Amendment defense?
I think the real problem here is that The Powers That Be see his actions as criminal (which I don't have the strongest objections to, honestly), but that the actual written laws across The West aren't written today to cover such actions. It's not a good look for US authorities to prosecute someone who as far as I know, other than online interactions, never set foot in the US, even though he worked American sources (who have themselves been prosecuted) and published what they consider to be US secrets. But, as far as I know, the actions weren't directly against the laws of the (Western!) countries he was in.
Spycraft has its own sets of ethics and rules, but non-state-affiliated actors like Wikileaks aren't really subject to them. But at a fundamental level, those actions aren't particularly dissimilar to Bellingcat publishing exposes of Russian cruise missile targeting. It's not generally seen as a crime for Americans to snoop on and publish details of Russian military units. But the State Department already looks askance at Chinese law enforcement reaching overseas, and would probably loudly object if they started arresting, extraditing, or even just intimidating Bellingcat.
Realistically, Western-aligned governments should probably sit down and establish what the acceptable rules are: this entire case would have been easier if Australia had a law on the books that private citizens soliciting and/or publishing secrets of Australian allies (like the US) was subject to similar rules as Australian secrets. But that has some subtleties, because broad laws like this could threaten IMHO reasonable things like Western journalists criticizing the way Western allies fight wars.
I don't know of any on-point cases for the Espionage Act, but extraterritoriality is an absolute mess in general. I recall that since the Obama administration, there has been a push to publish "name and shame" indictments against Russians/Chinese individuals who commit 'crimes'/'actions disliked by TPTB' over the internet, even though they have zero chance of ever bringing those folks into a US court. I think if they ever managed to nab one, it would be quite a blockbuster case on extraterritoriality, and we might get more info that could shed light on whether Assange could have been successful with this type of defense as well.
The general space is mostly ungoverned/ungovernable, and agreed that the State Department would look askance at Chinese law enforcement reaching overseas, but in international relations, it pretty much seems to always come down to, "What are you going to do about it?" Assange found himself in the country of a US ally, so he got caught in the muck. The ugliest of mucks, where you're really at the mercy of great power politics rather than what is absolutely Right and Just.
Unfortunately, not only do I think that there are no established acceptable rules; I think this is an area where it is extremely unlikely that we are going to develop established acceptable rules anytime soon, given the geopolitical situation. For the meantime, I think all we have is muck.
I don't think extraterritoriality is a huge concern in this case. It's an issue in things like banking regulations where the actions are only peripherally related to the United States, but not in cases where domestic activity is at the crux of it. For instance, if someone in the UK who has never set foot in the US hires an American hit man to kill a US citizen in the US, I don't think there are any extraterritoriality concerns about prosecuting him here. Similarly, international espionage has US interests at the core of things. This is fairly rare because most spies who never leave their home countries simply aren't likely to be identified, and when they are they are usually employees of foreign governments that are at least somewhat hostile to the United States, e.g. China. If it's a country we're close to then we're more likely to deal with the situation via diplomacy than to demand extradition and put a further strain on the relationship. When the perpetrator is a private actor whose home country had no involvement in the espionage (or, as in the case of Assange, whose home country isn't even that relevant to the legal proceedings), then it's much easier.
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