What’s Really Behind Julian Assange’s Arrest

Listen to the entire discussion between the two journalists regarding Assange, the rare heroism of whistleblowers and the government’s menacing assault on the First Amendment. You can also read a transcript of the interview below the media player and find past episodes of “Scheer Intelligence” here.  

If you have trouble viewing or hearing the podcast player posted above this notice, click this link.

Robert Scheer: Hi, this is Robert Scheer with another edition of “Scheer Intelligence,” where the intelligence comes from my guests. In this case, it’s Bruce Shapiro, a contributing editor to The Nation magazine and the executive director of the Dart Center for Journalism and Trauma at Columbia University Graduate School of Journalism. And we’re here to discuss–I’m probably misusing the concept of trauma as you define it. But the presence of Julian Assange, WikiLeaks, has been traumatic for his critics, and certainly in the Democratic Party and elsewhere, and even for journalists. And he’s now been charged by the U.S. government with a single count of violation of the Computer Fraud and Abuse Act, for attempting unsuccessfully to understand a password or change it; he failed. And that’s led to the arrest and extradition attempt to take him from England to face this charge, and presumably other charges can be added on. And you have, the reason I wanted to talk to you, Bruce Shapiro, is that you wrote a number of articles, but most recently in The Nation, the indictment of Julian Assange as a threat to press freedom. So can you basically summarize your view of this?

Bruce Shapiro: Sure. And I suppose I should start by saying that my view of this is that it’s a mess. It’s contradictory, it’s complicated. And I think it’s important to separate, for this conversation, whatever personal views or political views we may have of Julian Assange as an individual, or WikiLeaks as an institution. And instead, look at the indictment and say, what are its implications for the work of journalism and journalists, what are its implications for publishing, what are its implications for free expression. That’s what I’ve tried to do. A lot of news organizations, I think, have kind of stepped back from Assange with the revelation in this indictment that he seemed to be actively trying to crack a government password at the request of his source, Chelsea Manning. Usual press practice would be to accept leaked materials, but not to participate actively in the breaking into the file cabinet, whether a real file cabinet or a virtual one. And because he crossed that line, some free press folks have said, Oh, that’s it, we don’t need to worry about it anymore. I disagree strongly. And it’s for a couple of reasons. First of all, the underlying charge is not just the limited charge of having tried to crack a password; that’s sort of a predicate to get him extradited and maybe add more later, who knows. But even in this limited indictment, it’s a conspiracy charge. The indictment charges Assange and Chelsea Manning with conspiracy, and in particular conspiracy to violate the Espionage Act, which has never been used against a journalist in the history of the United States, or against a publisher. And the nature of that conspiracy is everything surrounding this act of purported password-cracking back in 2010. The indictment details Assange’s conversations with Manning, his attempt to reassure her that the effort was worth it, sort of cajoling, stroking. Talks about them discussing how best to protect her, to cover her tracks. This is the kind of conversation that journalists–especially those who report on national security, but other kinds of investigative reporters, too–have with sources every day. And so this indictment in order to get to this limited act of password-cracking, is criminalizing the work, the day-to-day work of investigative reporting. That seems to me to be very dangerous. I think the government, the Trump administration is counting on a lot of people’s dislike of Julian Assange personally to get this through to, to establish the precedent for criminalizing investigative reporters’ relationships with leakers.

You know, the Obama administration, which was no friend of whistleblowers–which prosecuted more whistleblowers than any administration in history–the Obama administration looked at this same material and concluded that it would intrude on the First Amendment, that it would be a threat to freedom of the press, to prosecute Assange. It wasn’t worth it to them. The Trump administration, now Secretary of State Pompeo, formerly the head of national intelligence, the Trump Justice Department, now under Attorney General Barr, have decided for political reasons, I think, to turn around that decision by the Obama Justice Department and go after Mr. Assange. Again, whatever you think of Assange, the question is, what are the implications of this indictment for the practice of investigative reporting? And that worries me very much.

RS: Yeah, it’s kind of a shame that we have to say, put in this disclaimer, “whatever you think of Julian Assange.” Because of course, any whistleblower is going to be attacked, and it’s the traditional argument of shooting the messenger. The fact of the matter is, there’s two points to be made. First of all, Julian Assange, and Chelsea Manning more spectacularly, and the real victim of prosecution here so far, has–you know, they distributed at least 700,000 military, war, and diplomatic records. And there is no question of the news value of those records, the right of the public to know that information, the need of the public to know that information. There has not been one documented example of an injury or death as a result of the release of that information. So the rump of this whole issue here, the documents that were released, that really showed evidence of serious war crimes, the killing of civilians, shooting of reporters, everything else–no one has gone for jail on the other end. No one has, you know, been held accountable for any of those crimes. And Chelsea Manning, of course, has been prosecuted, and then was pardoned and is now back in jail because she won’t cooperate with the grand jury, having said she has said everything she can. The interesting thing here is that Julian Assange is in the position–the same the New York Times and the Washington Post were in the Pentagon Papers case.

BS: Well, you know–yeah.

RS: Ellsberg was Chelsea Manning, and the fact of the matter is, whether you like the publication or not, basically with the exception of this breaking the password charge, Julian Assange is a publisher. And the interesting thing is that Chelsea Manning, who supplied the password, was not charged with this, and with this failed effort. And this was used, again, to drag Julian Assange into a court in England.

BS: Well, it’s interesting. So there’s–let me just unpack a few layers. You know, there’s a big argument within journalism right now about whether Assange is really a journalist and whether WikiLeaks is really journalism. I actually think this is an irrelevant argument, because whether or not you think a public interest document dump is journalism or meets the best ethical standards or whatever, what Julian Assange unquestionably is a publisher. And the First Amendment doesn’t only protect journalists; in fact, journalism as a profession didn’t really exist when the First Amendment was passed back in 1789. The First Amendment protects publication and publishers, and that was the meaning as well of the Pentagon Papers case, right? When the Supreme Court agreed to let the New York Times and Washington Post and everybody else go ahead with publication of the Pentagon Papers, what they found is that under American law there can be no prior restraint. We do not have an official secrets act here that allows the government to put stories on spikes. And I think there’s been a lot of confusion caused by this argument about whether or not Assange is really a journalist or not. I certainly agree that the Iraq War logs, which are the documents at the heart of this conspiracy indictment, that there is an unquestioned public interest in their release. It revealed, you know, all kinds of unknown, previously unknown activity and cover-ups for accountability in deaths of civilians, and the deaths of journalists–the famous collateral damage video. You know, those–there is a public interest. Chelsea Manning is in exactly the same position as Daniel Ellsberg was in when he leaked the Pentagon Papers, with a couple of important differences. Back then, the Nixon administration wanted to use the Espionage Act to go after Daniel Ellsberg; it didn’t only because that would have revealed the Nixon administration’s illegal break-in into Daniel Ellsberg’s psychiatrist’s office. So Nixonian dirty tricks prevented this kind of a conspiracy charge at that time. And, you know, Daniel Ellsberg was a person at the top of the power pyramid when he decided to leak the Pentagon Papers. He’d been to Harvard, he had been a top Defense Department official, he worked for the Rand Corporation. Chelsea Manning was a lowly private, except a lowly private with access to the goods. And you know, the–in many ways, again, whatever you think of Assange, Chelsea Manning is doing something that I find unprecedented in the history of American journalism. We often hear, or from time to time hear, about journalists going to jail to protect a source. I’ve never before heard of a source willingly go to jail to protect a journalist. And that’s what’s happened here, with Chelsea Manning now in prison for contempt of court for refusing to cooperate with the investigation and to give more information to back up this indictment. Now, look. That said, I think we would be–Bob, you and I would not be doing our job as journalists if we didn’t acknowledge the fact that Julian Assange is a complicated and contradictory and very messy figure. You know, we’re speaking on the day that the Mueller report was released, which goes into–was just looking at it before we talked–some detail about the nature of Assange’s interactions with some of the Russian operatives behind the Clinton leaks. He’s a person who arguably contributed to the election of Donald Trump, because of his profound hatred of Bill Clinton, through the publication of those leaks. But that’s a historic irony. I mean, it’s an irony that the administration he now, he supported, is now the one to go after him. But that doesn’t diminish the press freedom stakes in this, and it doesn’t diminish the injustice of a criminal conspiracy brought against a public-interest publisher for releasing information.

RS: I understand what you’re saying. I actually consider that to be so irrelevant here. As you’ve pointed out, when we had this protection of freedom of the press, you know, the press–the point of the–same with speech–was not to honor the messenger. The press was quite scurrilous at times. I’m not agreeing with you, by the way, in your characterization of WikiLeaks.

BS: [Laughs]

RS: I’m not. I think–I would take exception. But I don’t think it’s the issue. In fact, you know, Tom Paine was considered a traitor; when he died, they dug up his body and threw his bones out to the countryside, there were plenty of people hated him so much. The press, the freedom of the press that was enshrined, the press was reviled, was attacked, whether it was town criers or wall posters or so forth. The issue–and by the way, I was a witness, a defense witness in the Ellsberg trial, and I can tell you they were digging up a lot of dirt on Ellsberg, on his personal–the reason they went into his psychiatrist’s office, or his psychologist’s office, was to get data to disparage his intention, his motives as a human being. There were even some journalists who went after him in a very scurrilous way, to you know, attack him. And that is not the issue. First of all, WikiLeaks is in a–as you point out–far stronger position than Ellsberg was. Ellsberg has pointed this out. Ellsberg had taken an oath. Ellsberg had said he would honor classification. And then he had to make the case, this was such an extreme case of hiding information from the public, that he had a constitutional obligation to reveal it. WikiLeaks, and whether the New York Times likes it or the Washington Post likes it, is in the same position they were in, in terms of our Constitution. It is not a question of whether you like the–now the Washington Post is owned by the richest man in the world; does that mean I can go challenge their motives in publishing a story, whether I like it or not? No, that’s a shoot the messenger argument; I’m not saying you’re advancing it, but I am saying I’m hearing that a lot in media circles.

BS: Oh, I–very much. Now, I will say, to its credit, that the Committee to Protect Journalists came out very strongly and very clearly describing this as a very troubling indictment, particularly for the way in which it would seem to encourage prosecutors to root around in the source reporter relationship. And kudos to CPJ for that. There are a lot of corners of American journalism, anyway, that are trying to distance themselves as far as they can from Assange, and therefore are not, I think, living up to their responsibilities to our own free-press traditions. You know, the freedom of the press is rooted not–as you say, not in the likeability or agreeability or whatever of the publisher. In the most famous libel case, the most important libel case in American history, New York Times vs. Sullivan, [Justice] Brennan, who wrote the majority opinion in that, talked about the importance of caustic speak, of offensive, even caustic speech, being protected by the First Amendment. And the same thing is true of investigative matters. Deeply controversial leaks, deeply controversial revelations about the abuse of power–sources who essentially, whether it’s Ellsberg or Manning, who have committed an act of civil disobedience by violating an oath that they took to secrecy–are part of the public interest discussion. Particularly when the stakes are so high on matters of war and peace. The reality of this indictment is that if it, if this were to become the norm, there’s a whole host of important stories from the last 20 years regarding all kinds of institutions, and regarding democratic and republican presidencies alike, that would never have come to light if reporters or publications feared being called co-conspirators for working with their sources to figure out the best way to leak material. This is, it’s a very dangerous act.

RS: Well, in fact, if you apply it to what part of the media has done in their effort to criticize Trump and talk about Russian collusion and using the Steele memo and so forth and so on, you could develop a vast conspiracy. That is the real danger. And you’re absolutely right in pointing out that the use of–and for listeners who don’t understand, let’s just be legally specific. The CFAA, which is the legislation that we’re talking about, is legislation that basically has been–well, it’s been used, it’s the Computer Fraud and Abuse Act. It’s used by corporations when they want to punish people, it’s used in all sorts of ways; famously, it was used against one of the true heroes of internet freedom in my book and caused his suicide. And that was Aaron Swartz, who downloaded judicial documents, again, that I think the public had a right to see; he downloaded scientific journals from JSTOR, and JSTOR even said they didn’t want him prosecuted, and yet the government used this same CFAA, with its draconian penalties, and Swartz took his own life. I mean, it was so intimidating.

BS: The Computer Fraud and Abuse Act is a troublingly broad and very confusing statute. Which makes it all the more dangerous that it’s sort of the predicate for this conspiracy charge, the kind of thin, thin hook to hang an entire conspiracy case on. You know, I think there is some chance that a British court looking at this, and in particular looking at the Trump Justice Department’s decision to revive a charge that the Obama administration had deliberately chosen not to pursue. There is some chance that a British court, looking at the totality of this, will say that it amounts to a political act of prosecution. Which under international law, and under UK and European law, they’re allowed to refuse extradition for what is deemed to be a political prosecution. You know, that may be a thin chance, but I think it’s a real one. This is clearly a politically motivated prosecution by an administration looking to distract attention from its own problems, by an administration eager to control the media, and an administration in particular that has threatened and taken action against reporters on other fronts. The administration’s open hostility to what Donald Trump calls “the enemies of the people” makes this a political prosecution. And that’s something, I think, that the British courts will need to pay some attention to in the course of deciding whether to hand Mr. Assange over.

RS: [omission for station break] I want to focus, in the time that remains, just a little bit more on the role of the media, particularly the establishment media. And people are generally, a lot people are very angry with Julian Assange because of what happened in the election, and basically, the release of material that had nothing to do with this charge. But the Podesta file showing that the Democratic National Committee had basically tried to undermine the Bernie Sanders campaign. And the other important thing that was revealed, again having nothing at all to do with this charge or Chelsea Manning, was the content of the speeches that Hillary Clinton gave for three quarters of a million dollars to Goldman Sachs, saying that she would like to bring these wonderful bankers back to Washington with her to straighten out the problems that we have, that of course the banks caused. And there’s such a sense of animus to, you know, anybody who hurt the chances of the democrats in that last election, and all other issues seem to be pushed aside. And what is particularly troubling in the whole treatment of Julian Assange–and Chelsea Manning, because she’s, after all, in jail now, and there isn’t much of an outcry–is there seems to be no concern that war crimes were committed by the United States, or at least the very strong possibility of serious war crimes–a war on civilians in Iraq, a country we invaded partially on the basis of misreporting by the New York Times and other establishment papers. And there seems to be no concern, in this zeal to get Chelsea Manning or Julian Assange convicted of additional charges, of what about the crimes that they revealed? What about the killing of civilians? What about the invasion of a country and doing this, the dismemberment of a whole region? And there is absolutely no sense at all–which we usually bring to whistleblowing cases; we usually say, was the information important? Did the public have a right to know it? That is, after all, the First Amendment basic argument in defense of the press, that you need a vital press. And you could not have a better example of the vitality of a press, in terms of the documents revealed by WikiLeaks. No one can challenge that, I don’t think. And yet there’s no mention of it.

BS: Well, I think there’s been some mention of it. And I think, to be fair, that American journalism is divided over Assange, and is divided over this case, and is having exactly this argument. There are an awful lot of reporters I know, editorial page editors and others, who are saying exactly what you’re describing now. Now, listen. I do, I’m going to push back gently in one way. I do think it’s important that we acknowledge that there are ways in which Mr. Assange, through his judgment and I what I think is sometimes poor judgment, has contributed to the situation. And here I’m not talking about the 2016 presidential campaign at all. I think in this case, for example, in the case of 2010, in the War Logs, while I think it is dangerous and wrong for the government to be prosecuting him now–and I’m very strongly writing against this prosecution, OK–I do think it was a poor judgment of Assange to actively participate in cracking a password. And here’s why: it actually put his source in more legal jeopardy. We’ve seen this before; back in the 1990s, the Cincinnati Enquirer had a magnificent scoop that a team of reporters worked on for a year, about corruption and criminality and violence by the Chiquita Banana company. They ran the story, and it turned out that one of the reporters on the team had been quietly, privately hacking into the executive voicemail system with a password he’d been given by a source. That action, that actually participating in the extraction of files in an active way, or voice mails in an active way, gave Chiquita–which was very politically connected–an opportunity to sue the Enquirer and its publisher. Got to go to prosecutors and get criminal charges against the reporter in that case. And this entire, huge series about crimes against humanity by a major multinational American corporation–that entire series ended up being unpublished, retracted, taken out of LexisNexis–you can find it somewhere on the internet, but it’s hard to find. The reporter ended up being charged criminally, and in order to stay out of jail, ended up giving up his source, who lost his job. When reporters, or when publishers, themselves decide–and sometimes it may be necessary. But when reporters themselves decide to cross a certain line of law, or a certain line of action, the risk to the story itself, the risk to their publications, the risk to their sources rises. I’m, you know, I teach journalism ethics, and I would be irresponsible if I didn’t say that I think Assange made some important mistakes in this case. But so what, right? The danger to press freedom by allowing the government to root around in source relationships like this, far outweighs whatever my judgments on Assange’s own character or state of mind may be. I think what we have to focus on now is how the government is using Julian Assange, and using the controversial nature of his actions, as a smokescreen to cover up a broad attack on national security reporting, a broad attack to criminalize source-journalist relationships involving leaking, a broad attempt to criminalize investigative reporting. They’re exploiting, you know, the complicating factors of Julian Assange and WikiLeaks to undermine all kinds of watchdog reporting here in the United States.

RS: Yeah. And you know, the complicating factors are always there in every story of this kind. For God’s sake, we’re talking about the area of national security where the government routinely–every government in the world, but ours is masterful at it–routinely lies about every bit of information you need, and anything that would be unflattering to what they’re doing. And you can go here with the Steele memo, and how is that created, and what was this relation to government agencies? You could go through–

BS: Well, that—

RS: Anyway, but let me just, I mean, ‘cause I, I think I take your point. That the whistleblowers, yes; you know, John Kiriakou, who gave the name of a CIA person to a New York Times reporter, ended up spending years in jail. He’s the one who first revealed that we were doing torture, and they used, you know, that passing that card with the name. In this case, by the way, it’s not that he cracked the password; it was part of a password. And Chelsea Manning had asked, would he know anything about it, and they did not crack the password, it did not happen. And if people want to, I mean, I’ll post this at the end of it, but the Electronic Frontier Foundation, which I don’t know if you would agree with me, but I think it’s the most exemplary organization. It has a libertarian bent, but that can be positive in the case of questioning government…

BS: Well, that’s right. And look, I think it’s also important to say, as both in terms of what EFF is saying and as a kind of extension of what I was saying a few minutes ago, that the source has not been born, the whistleblower has not been born who has pure motives. And the journalist has not been born who is pure of motive and character, right? We are, these are complicated, messy motivations; complicated, messy stories. But the First Amendment means nothing if it doesn’t mean the right to publish information gleaned from hopelessly messy, and indeed maybe even compromised, sources. And it means nothing if it doesn’t mean the ability of journalists, for their own complicated reasons and complicated motives and complicated characters, to pursue public interest information about abuses of power by the government.

RS: And so, I take your point, and I’m not trying to glorify anyone, a whistleblower of any sort. But I do want to say something, push back a little bit on the characterization of Julian Assange. This guy has sacrificed a great deal to do what other people have failed to do. There are a lot of people who knew about crimes being committed in Iraq and elsewhere. I always raise this question about whistleblowers. There was one Daniel Ellsberg; there were thousands, if not tens of thousands, of people who had already read the Pentagon Papers and knew that the war in Vietnam was a tissue of lies, and yet millions continued to be killed because of this lie. And in the case of Julian Assange, this incredibly valuable information that he, thanks to Chelsea Manning’s incredible courage, revealed–that seems to be lost. The rest of the media, including the media that celebrated going into Iraq on a lie–that’s the New York Times, Washington Post, and many others–celebrated going into it, bought the lies, takes no accountability for the needless civilian destruction of lives, American troops killed, what have you. And somehow, Julian Assange, who more than any other single figure enlightened us, with Chelsea Manning, about the reality of what our government was doing in Iraq–more than any of those two people–and somehow we’re sitting here nit-picking about their motives. And the scoundrels–the scoundrels who lied, none of them have been prosecuted. None of them–they all feel self-righteous. The people who voted for the war based on the lies, who were in Congress. The people who spread the lies when they were in the government. You know, including democratic and republican governments. None of them are put in our crosshairs the way we’re doing with Julian Assange and Chelsea Manning.

BS: Well, and that’s why, you know, we need to view–I think American journalists, in particular, and American press freedom groups, which are trying to figure out their relationship to this complicated case–need to understand that leaking in a matter like this, and the choices that a publisher like Assange makes in a matter like this that is about war crimes, about cover-up for atrocity, that’s about misleading the public–that sometimes breaking, you know, a computer hacking law, sometimes breaking a secrecy oath, is a kind of civil disobedience as historically significant as Rosa Parks, you know, refusing to sit in the back of the bus. That is what we’re dealing with here. And that’s why I think it’s particularly notable that we pay attention to the courage of Manning at this moment, who as I said, is doing something that as a sort of journalism historian I find unprecedented, which is a source going to jail to protect a journalist. We need to be focused on Chelsea Manning as much as perhaps we are on Julian Assange. And we need to separate out the–look, the very complicated emotions that many folks have in light of the 2016 campaign. Forget about all that. Because what we’re talking about here is the basic ability of journalists to do their job, of sources to act out of conscience, of publishers to publish secrets, which has been protected by the First Amendment, and will be in grave danger if the conspiracy rap is allowed to run its course. If Julian Assange can go to prison for conspiring with Chelsea Manning over a password, really the whole nature of source-reporter relationships in American law is up for grabs.

RS: Yeah, I think that’s an important point on which to end it. I pushed back on–

BS: Yeah, I thought it was good.

RS: I think you’re being very polite. I don’t feel polite about a mainstream media that is quite willing to pass on government lies and rarely apologize for it, but when you have the rare whistleblower–my goodness, we’ve had what, 10, 12 whistleblowers in 40 years of any significance on national security. And we learn that wars were unnecessary and millions died unnecessarily. And yet these whistleblowers are always challenged. Their lives are messed up terribly; divorce, they lose their jobs. You got Thomas Drake trying to hold down a job at an Apple store, losing all their benefits. I can go through the list. And you have to really ask a question: why are there so few whistleblowers? If we’re such a great, free society, you know, where are the people of courage? Are they so worried–what are the risks they would be taking, there would be a slight kink in their career curve? But how many people, how many people on the inside, with security clearances, whether they’re in the academic world, the military world or so forth, have stepped forward and told the American people the truth they need to know in order to make intelligent decisions as an electorate? In national security, 95 to 99 percent of the information we operate on is government-tailored information, quite often fraudulent. You have that rare person, like a Julian Assange, an Edward Snowden, a Daniel Ellsberg and so forth, you can name them all right now on this program in a few minutes, and you have to ask the basic question: Where are the other folks? Where are the people with the security clearances who keep quiet while lies are sold to the American people that they know are lies?

BS: So let me close by drawing your attention and that of listeners to a wonderful organization recently set up, based in San Francisco, actually, called the Signals Network, which was set up specifically to promote the support of and defense for whistleblowers in the wake of Snowden, in the wake of Assange, in the wake of all of these cases. The Signals Network is doing very important work to advance exactly the kinds of questions that you’re asking here, and to say, how do we turn these–how do we give these people who so easily as whistleblowers, as Chelsea Manning, turn in to defendants and pariahs, how do we give them the honor, respect, and support they deserve for the courageous act of telling the public what it needs to know?

RS: Thank you, Bruce Shapiro, for that statement. And yes, those are good sources. The Electronic Frontier Foundation is another one. There are good folks out there–including, by the way, let me hasten to say, Bruce Shapiro and his writings in The Nation magazine [Laughter], which is why I wanted him on this show now. So even though he’s very polite [Laughter] towards, I think, an establishment that’s out of control and can be quite dangerous and deceitful, I do want to thank you for taking the time to do this. Bruce Shapiro, contributing editor to The Nation, executive director of the Dart Center for Journalism and Trauma, and a longtime really important journalist on his own terms, and a media critic. I want to also thank Kat Yore and Mario Diaz, our engineers here at KCRW, and Joshua Scheer, the producer of “Scheer Intelligence,” and we’ll be back with another edition next week. Thank you.