This week, I was proud to join the board and help launch the Freedom of the Press Foundation, a new organization which plans on crowd-funding for a variety of independent journalism outlets whose prime mission is to seek transparency and accountability in government. You can read about the first group of four organizations – which includes the National Security Archive, MuckRock and The UpTake and WikiLeaks – here.
Recently, I sat down with George Washington Law School professor and constitutional scholar Jonathan Turley, along with my close friend Kevin McCabe, to discuss WikiLeaks’ impact on transparency, the government’s response and the comparison to the Pentagon Papers whistleblower Daniel Ellsberg (also a co-founder of the Freedom of the Press Foundation).
WikiLeaks was extralegally cut off from funding after two Congressmen successfully pressured Visa, Mastercard and PayPal into refusing to do business with the journalism organization in late 2010. We hope that the Freedom of the Press Foundation will become a bulwark against these types of unofficial censorship tactics in the future.
This conversation is the first installment of a two-part interview series.
John Cusack: I was just thinking about Julian Assange, and that, as Chris Hedges and Daniel Ellsberg sue over the National Defense Authorization Act (NDAA), we have a situation where, if things are as they appear to be, Juilan Assange is locked up for, basically, exposing war crimes.
Jonathan Turley: Yeah. I think the fascinating thing about Assange is that the very same act of disclosure, if he were recognized as a journalist, might have brought him the Pulitzer Prize. Assange holds this curious status. The media doesn’t quite know how to handle him. They can’t decide whether he is a villain or a hero, or some type of villainous hero. And many people are ignoring the content of a lot of what he disclosed.
You and I have talked about this in the past, John, that the material released by WikiLeaks ticked off the US government primarily because it showed that the government had been routinely lying to the American people. That produced tremendous anger from government officials who are not used to being exposed in this way, including members of Congress. These are people who tightly control what the public knows and what information is allowed out of the government.
Frankly, most governments are used to lying to each other – to a degree that most people would find shocking. Part of diplomacy is the art of strategic lying. These cables show the level of deceit shown by government not only to other governments, but to their own citizens, including our own. And so it was a tremendously embarrassing disclosure.
Some of these disclosures were quite startling and far more important than the media suggested in the coverage. For example, we’ve talked about the cable showing the Obama administration threatening Spain if Spain carried out its right under treaty to investigate the American torture program, in light of Obama’s refusal to do so.
John Cusack: Yeah, it doesn’t seem like this guy is being hunted around the world because he embarrassed some diplomats.
Jonathan Turley: Right, it is more than that.
John Cusack: I would love to discuss what these underlying legal principles are. Do you think he feels he’s doing something that should be done by journalists and publishers – do you think he’s filling a gap in journalism, or is this a new sort of journalism? Perhaps he doesn’t care about those distinctions, but should we?
Jonathan Turley: Well, the response to Assange is remarkable – it was something of a paradigm shift. The media’s used to insular disclosures that are controlled and focused on subjects like the secret prisons in Europe, or the torture program. What Assange did was a massive release of material that showed the breathtaking dishonesty by the US government and governments around the world. It showed how much of our domestic and international politics are just a type of kabuki.
John Cusack: In that way, it’s adequately analogous to the Pentagon Papers, in the same way Eric Holder signing statements saying you can kill American citizens is the same kind of bullshit legal patina akin to John Yoo’s torture document. What are the important differences or parallels between the Ellsberg releases of the Pentagon Papers and WikiLeaks’ release of the exposure of war crimes and state lies?
Jonathan Turley: I think you make the right analogy. In one sense, the Pentagon Papers were so powerful because they were focused on the issue of deception with regard to the Vietnam War. Assange is almost hurt by the fact that his disclosures were 100 times broader than the Pentagon Papers.
Ironically, if he had simply taken parts of those disclosures and released them in isolation, he might have had a greater level of support. Instead, he released this comprehensive record of deceit by the US government and other governments. And frankly, I think the mainstream media had difficulty in covering it and describing it and processing it.
The result is that this guy is isolated, both in a legal and physical sense. He’s being basically held captive in this embassy, unless he’s willing to leave and be subject to arrest. He has good reason to suspect that the United States government is planning to deport him as soon as any friendly government can get their hands on him.
John Cusack: I have no idea what the truth is in the matter. But I know that you haven’t seen too many governments taking such active interest and getting so actively involved in Swedish rape cases.
Jonathan Turley: Well, there’s a lot of skepticism with regard to the timing. The fact is the United States did need some government to grab Assange on the basis of some criminal allegation. Yet we do not know fully the underlying facts.
Assange may indeed be a highly imperfect individual – even a rapist, if these allegations were ever proven. As I’ve mentioned before, I tell my students all the time that our causes are often better than our clients. It’s just a reality of pro bono or public interest work. It is not uncommon to have people who raise important public interest issues but may have committed great wrongs.
Frankly, I don’t know what the truth of the matter is. I know that Assange has offered to meet with investigators in the embassy and that’s been refused. I’m a little uncertain of why it has been refused.
But in terms of the importance of WikiLeaks, I don’t think anyone can really question that there is considerable importance to those disclosures.
John Cusack: In many ways, it’s world-changing. Are Assange and WikiLeaks basically saying there’s no one who’ll do this journalism anymore, so we are compelled to do it? Or is he filling some other space, or trying to trump journalistic space? Legally, what’s the difference? Why is he punished, but The New York Times is not? They published his material.
I think you’re saying it’s such a vaster terrain than the Pentagon Papers that it may explain the frenzy, when the publisher for The New York Times and reporters around the Ellsberg release had to just say to themselves, Vietnam lies – all right, these guys are going to come after us. Maybe we’ll go to jail, maybe we won’t. But they made the call, and they published it. WikiLeaks is going after all governments all over the world.
Jonathan Turley: I think what Assange showed, more than any journalist or activist perhaps in history, is the sheer degree of duplicity and deception by this government and governments around the world.
John Cusack: You think the primary crux of it is the thing as a whole, not just the Bradley Manning case, or any specific revelation? Manning is just the fulcrum point to stop it and destroy them?
Jonathan Turley: I think it’s fascinating when you look at the reaction to Bradley Manning and Assange. The government really went to DEFCON 4 in dealing with these guys. And the question is why. I think the answer to that is they want to hoist the wretch. They want everyone to see these guys twisting in the wind, so no one will do this again.
And what is it that they did?
John Cusack: They were whistleblowers.
Jonathan Turley: Right, they released information embarrassing to the government. But when you look at the media coverage, they clearly are unwilling to treat Assange as a whistleblower, and they are particularly unwilling to treat him as a journalist.
And so this sort of goes to this longstanding question of what constitutes a journalist in the age of blogs and Internet sites?
John Cusack: What do you believe that difference is, from the constitutional perspective of freedom of speech?
Jonathan Turley: Journalists have been adopting a very narrow definition because they have a legitimate concern that, with the ability to create a blog in a matter of minutes, everyone can claim to be a journalist. If everyone is a journalist, then no one will likely have journalistic privileges. Journalists survive on these privileges and those privileges will evaporate if everyone can claim them.
And so if you look at things like the National Press Club, they long have had a definition of a journalist that deals with how much the person gets paid to do journalism, excluding people who are legitimate journalists but are not receiving a full-time, or even a significant part-time, salary. Those definitions are highly artificial today. Most people are now getting their news from the Internet and from blogs.
Kevin McCabe: In a reference in a Times story, the reporter referred to Chris Matthews and Katie Couric as journalists who would be attending the Al Smith dinner. And I was going to send a note saying Chris Matthews is no journalist. At one time, he was a columnist. But he’s a cable TV opinion guy now. I think that what you say just brings a striking relief to all of that. It’s just so obvious.
Jonathan Turley: It also creates this awkward position, where if Adam Liptak at The New York Times releases material from Assange, it’s a journalistic act. When Assange releases this information in bulk, it’s considered a terrorist act. And nobody seems comfortable with trying to explain that distinction. And I’m not too sure that they can.
There’s two ways to look at whether someone’s a journalist – their function and their motivation. And usually, we look at both. Well, what was the motivation of Assange? Assange’s motivation, it seems to me, was clearly to be a whistleblower and to release this information. But he was also doing an act which is identical to what journalists do.
And yet, if you look at how he’s treated in the newspapers, they’re not treating him as either whistleblower or journalist; they’re treating him somehow as sui generis, something unique. He’s an Assange.
John Cusack: What is the difference between him raising money and putting up a web site, WikiLeaks, and having his own investigative reporting team gather information and aggregating content; and The Huffington Post hiring folks doing the same. I watch Arianna Huffington put her things together and become the online newspaper. Many of the people who were bloggers and are now journalists – great guys like Sam Stein, and they do a great job, – now they have titles, they get accredited and go to the White House, and they are journalists, but primarily, they write online.
Jonathan Turley: I think that’s true. I think that part of the distinction is if the government was arguing that Assange is an actual hacker – if they’re saying that he broke into a computer system and removed this material…
John Cusack: They’re basically saying that Assange is Anonymous.
Jonathan Turley: Right.
John Cusack: So their argument is, if Assange is Anonymous; he’s a cyber-terrorist?
Jonathan Turley: Right. And if he’s a hacker, I think that does…
John Cusack: Does that hold up?
Jonathan Turley: Well, no – if he’s a hacker, it does put him in a different category, in the sense that he’s committing a crime –
John Cusack: Is he a hacker? Do we know that?
Jonathan Turley: Well, no, we don’t know that. In fact, many people insist that it’s clear he’s not a hacker, that he somehow got this material from a third party. But I don’t know the truth either way.
John Cusack: Like The New York Times got from Ellsberg – he was the third party.
Jonathan Turley: Right. And I think that if Assange is a hacker, it’s difficult to treat him as a journalist. And it may be difficult to treat him as a whistleblower.
Kevin McCabe: But I think it’s important to re-frame this discussion here and look at this problem from a broader perspective than just Julian Assange. Because I am not interested in individuals.
I am interested in movements. We need a movement protecting the First Amendment and its broadest reach. I don’t care about Assange other than he is an individual whose rights are being violated. And that means my rights are being violated. The reason we should care about what happens to Assange in the United States is because what happens to him, happens to the First Amendment.
Another element to it – my understanding of it – was that when Assange was negotiating with the Times regarding what would be reported and, therefore, verified and validated through The New York Times and The Washington Post, he lost any ability to get into the club, because of the way he engaged them.
Apparently when the Times set out parameters, Assange became difficult and insisted on a different approach. The Times was like no, that’s not how we do it, and Assange lost any institutional support going forward, on an ongoing basis, to be considered a journalist because he wouldn’t play by those rules. So it’s just an interesting part of the dynamic, when you so eloquently put that – it’s sui generis, but of what? He’s neither fish nor fowl, but he’s filling a vacuum and serving the public by disclosing information and reporting information everyone should be aware of.
John Cusack: So Jon, on the same terrain – if you give me information and I decide I want to put it out on, say, Twitter, – and it’ll reach a million- plus people – am I in the same class as Assange? If somebody sends me a video of a crime, and I believe a crime has been committed, do I have a right or moral obligation to expose the truth, and am I protected?
Jonathan Turley: Well, this is a longstanding conflict that we’ve had in the civil liberties community with Congress. In fact, I testified before the House Intelligence Committee years ago on the move by a number of members to criminalize the publication of classified information, whether you’re a journalist or anyone else. So they were including all the journalists, as well as non-journalists.
And this had the support of the Republicans and Democrats. Members of Congress tend not to like whistleblowers, or journalists for that matter, because they get them off-script and when they are most vulnerable. They make things less controllable. I have previously testified before both Democratic and Republican members considering a disastrous move toward criminalizing the publication of classified information regardless of how you receive it.
The question of your releasing the same information on Twitter is interesting. Given your status, you actually reach more people than virtually all of the daily newspapers. So you’re reaching over a million-plus people with a single tweet that most newspapers would dearly love to replicate.
John Cusack: We both blog and write online, as we are now.
Jonathan Turley: Then we get into this serious question of why you’re not a journalist, but Chris Matthews is. I mean, you actually are likely to reach 100 times more people than MSNBC would on any given evening because of your status.
John Cusack: One of Arianna Huffington’s big ideas was to create what she calls citizen journalists to participate and have your voices heard – and ordinary people could be right up there with Hillary Clinton and blog, and she’ll aggregate news. She’s created this kind of revolution in her own way. But it has to do with connectivity and aggregation and the idea of a citizen journalist. So is Assange basically a citizen publisher? It gets back to the same question – what are the rights of people to expose the truth? Where are their protections?
Jonathan Turley: I think that’s right. And this is where I think the media has decided to go conspicuously silent. Because there’s no question that Assange’s release of this information resembles the type of act for which journalists have received Pulitzers. He released information that came to him, and information that had not been released in any other forum. That information dealt directly with government deception and potential crimes.
So it walked and quacked just like a journalistic story. But they’re not willing to call him a journalist.
John Cusack: And so therefore, he has no protections?
Jonathan Turley: Well, that’s how the US government is dealing with it. They have rather transparently opted to deal with him as a suspected hacker. And they’re going to pursue him on that ground. If they get their hands on him, I expect they’re going to do everything they can to keep him in jail. They need to hoist the wretch, they need to make it clear that you won’t get away with this if you embarrass the government and release this type of information. Both the Bush and Obama administrations have previously threatened journalists. They are not going to hold back on Assange if they have already threatened to prosecute reporters.
John Cusack: As the man once said, you have the right to free speech, as long as you’re not dumb enough to actually try it. So it’s another part of the widening clamp-down on civil liberties and freedom of speech.
Jonathan Turley: Indeed. So, the Justice Department continues to insist that journalists and others who receive classified information are technically violating the law if they know that they are in possession of classified information and release it. This is an age-old argument that we’ve seen since Nixon. There’s a continuing hostility toward journalists doing this type of act. I think that’s what makes Assange such a tempting target for the government. Because they know they can pursue him and that the media is equivocating as to whether to support him, or even whether to explain him to the public.
I mean, the astonishing thing is that after all this time, Assange remains as much of a mystery as he was in the first month. The question is why. And the media really is treating him the way the government is. He’s not a journalist; he’s not a whistleblower; he’s an Assange. He’s becoming a noun unto himself.
Kevin McCabe: He’s not one of them.
Let me ask you a question: from a legal point of view, the government can take a very strict, calculated and almost singular approach to leaks and individuals who do the leaking, yet for their own political purposes, they have routinized leaking to outlets that they favor in order to control the message in politics.
Jonathan Turley: You’re right, that’s always been that hypocrisy.
John Cusack: And then the other hustle – the grand diversion we do. We start to leak personal peccadilloes and/or personality profiles that make us either like or despise a person, and we never know what’s actually true – Assange is vain, he’s messianic, a sexual predator etcetera etcetera – none of us know whether it’s true or not; We have no idea. But the argument then pivots to the perhaps feigned personality disorders of the individual, not to the principle behind it or the content intrinsic to what they’re doing.
Bradley Manning exposed the brutal murders of human beings. Daniel Ellsberg, also a co-founder of Freedom of the Press Foundation, even held up a sign for a photograph that said, “I was Bradley Manning,” and yet I still hear, “It’s not a valid comparison” all the time. All the while, governments leak to their own political advantage frequently.
Jonathan Turley: Well, I think you really have to wear waders to get through the hypocrisy of this issue with Washington.
When I was testifying in the House Intelligence Committee, these members were coming off like Claude Rains – that they were “shocked, shocked” people are leaking things in Washington. Some of these people routinely pick up the phone and leak embarrassing things against each other. And that’s viewed as part of the game. But I think that they share a certain dislike for journalists and whistleblowers doing it.
Kevin McCabe: What is the legal standard? If there was a comparable dynamic, a comparable scenario, not Assange, somebody who is being accused of being a leaker or hacker, or a non-whistleblower threat to America, and then, there’s a government entity that’s – either on instructions or on their own volition – setting up an investigation: from a strictly legal point of view, what is the protection for the individual who’s initiating the action, whether it’s well-intended or more venal? And whether you’re a government official or a citizen, or even a noncitizen – what are the legal standards for saying, I can leak, but you can’t?
I cannot believe that Leon Panetta is allowed to call up the mainstream media and say – don’t report that story, here’s a better story, and I need this, or whatever. They do it all the time. But if somebody else does it, he can get the electric chair. I don’t get it.
John Cusack: Or the differences being that because Seymour Hersh doesn’t burn his sources, he can release classified information about Iran attacks or WMDs because besides the hacker argument – and we don’t know whether its true – are they falling back on the method to which he’s gone about releasing this information? Or is it just a general deep-freeze in hypocrisy?
Jonathan Turley: Well, I think the problem is the legal standard. If you read the federal law, it’s quite sweeping that it is a crime to possess classified information without having a clearance or a need to have that information.
Kevin McCabe: Is Judith Miller in that world, or is that different?
Jonathan Turley: Well, that can be used against any journalist who receives classified information like the Pentagon Papers. And the problem is that the courts, particularly since the Rehnquist court, have gradually reduced the journalistic privilege in this country. There’s a crime fraud exception to the journalistic privilege, which is why journalists can be pulled into grand juries and thrown into jail for not testifying. That’s not just for classified matters, but for any criminal matter.
John Cusack: But then it doesn’t uniformly apply to the government. So when Rove released Valerie Plame’s identity, well, I guess they got Scooter Libby, so they gave up one head.
Jonathan Turley: Well, but there’s a lot of those types of conflicts. I mean, you had [Clinton NSA adviser] Sandy Berger, who reportedly put classified material in his sock and walked out of a secure facility. Any other person doing that would likely have been prosecuted, and he –
Kevin McCabe: And leaked it. It wasn’t like he was bringing it home to put in his varsity album.
Jonathan Turley: Yeah. So there’s a great deal of that.
People don’t realize that the Obama administration has been, if anything, harder on whistleblowers than the Bush administration. Part of the reason is that they know that the response will be more muted because the traditional constituency supporting whistleblowers just happens to be the same constituency as Obama’s.
John Cusack: Can you explain that a little more? I don’t quite understand that.
Jonathan Turley: Well, that the Obama administration, in the area of whistleblowers, has taken the same position as they have with regard to civil liberties. That is, they are fully aware –
John Cusack: Institutionalizing the Bush agenda, the massive expansion of executive power …
Jonathan Turley: But they have more of an ability to do it, because they know that they’re starting out by dividing the usual …
John Cusack: Opposition.
Jonathan Turley: … community, right, that supports whistleblowers. And it’s the same thing with civil liberties. They know that at least half of the usual folks who support whistleblowers will remain silent if the assault is by President Obama. And it’s part of this cult of personality that has taken hold of so many liberals and Democrats and progressives.
John Cusack: Yeah. We see that every day.
Jonathan Turley: But the crackdown on whistleblowers is an example of a rather muted response. The Obama administration has gone full tilt against whistleblowers. They have shown very little sympathy or restraint. But there has been precious little coverage of that. I mean, I thought the Democratic Convention was eye-opening, when you looked at the party platform from 2008 in comparison to 2012. Whole areas of civil liberties disappeared between those two conventions. And even though it’s true that these conventions are pretty much content-less, the refusal to even mouth support for some of the principles in his re-election campaign was really striking, from the failure to condemn indefinite detention, or even torture.
I mean, it’s evaporated. The same thing with warrantless wiretapping – drone murders – even Americans, killed without a coherent legal argument or standard.
John Cusack: But he was on Jon Stewart, and he did say that killing Americans isn’t optimal …
Jonathan Turley: Yes.
John Cusack: That is sort of a loose acknowledgement of some of the messy and pesky affairs of state.
Jonathan Turley: Yes. It’s sort of like taking a convertible out in the rain. It’s not optimal.
John Cusack: No, not optimal. Sometimes you just need to hold people in prison without trial and assassinate them. But not optimal.
Jonathan Turley: It really does show the infatuation with drones in this administration. Few people know that President Obama has used drone attacks many times more than Bush ever did. Obama’s off the charts in terms of drone attacks.
John Cusack: And these are acts of war, on sovereign countries, and innocents are being killed, right? But we call them suspected terrorists and butcher them. In reality we don’t know who we’re killing, or why.
Jonathan Turley: Yeah, this is another example of this sort of nuanced meaning that we find in the Obama administration – what is a drone attack? A drone attack is an assassination. It is targeting an individual to kill them.
John Cusack: That should be underlined in blood. As you said, your due process is served when your car explodes.
That’s interesting, because it’s kind of a twisted parallel to the question, what is an Assange: what is a journalist? All this profound sickness – people just don’t seem to want to acknowledge it and it isn’t really even defended; it’s just routinely ignored. It isn’t just that the excesses of the Bush administration haven’t been righted. There’s an escalation of warrantless wiretapping, an escalation of drones, an escalation of intimidation of whistleblowers. These things are escalating exponentially. Is that a fair statement?
Jonathan Turley: It’s absolutely fair. But these Democratic leaders have largely abandoned civil liberties. They’ll still give rhetorical flourishes about civil liberties. But these are some of the very same people during the Bush administration that were told about things like the torture programs. Some were the same people that blocked any Congressional investigation of these programs.
So they’re heavily invested in this national security system that we have. And that’s not going to change just because Obama’s in his second term. Congress is still heavily divided. These politicians will be looking to the next election in two years, and so will Obama. And they’re going to continue the same scripted approach to civil liberties. They are going to continue to give the national security crowd everything that they want.
John Cusack: It’s so bizarre, because even when we talk about civil liberties, it sounds sort of like a very fringy issue – kind of kitsch, kind of like a thing that collectors of small trinkets do. I like my little Chinese boxes; I like my civil liberty.
What I don’t understand is – and that’s why I think maybe it’s just racism – perhaps since it hasn’t happened to anyone that we know yet, just those Arabs or brown-skinned people from failed states. Fuck ’em. It doesn’t matter if they can throw Bradley Manning in jail. Doesn’t matter if they can throw any Arab in jail or murder them, or their families at a wedding. If the government can simply say, “We suspect this,” or, “These people are terrorists,” we can pulverize them – obliterate them from the face of earth.
Jonathan Turley: Or, more importantly, you’re going to have the same division. People are still not going to feel that they can oppose Obama when the Republicans are even further to the right.
And so you’re going to have the same dynamic. It’s the same echo chamber that exists today. And that’s why Obama’s been so disastrous for the civil liberties movement. I wrote a column a few years ago, about the death of the civil liberties movement, for The Los Angeles Times. And it details how devastating Obama has been to the movement. I don’t think his re-election will help, but rather hinder, a meaningful movement to crystallize. It’s not going to come together.
I think it could have come together if Romney were elected, ironically. I think it would’ve come together if McCain had been elected because you would have the removal of this very divisive figure, which is Barack Obama. Because many people just cannot fight on these civil liberties issues when they’re fighting against this iconic figure.
John Cusack: Kevin, how do you see it playing out politically? Do you see any good news coming down the pike, or is it really just we have the obligation to tell the truth and take the beatings? Or rather, watch on as others do – in reality.
Kevin McCabe: I think we have too many problems at the same time.
One: the Congress. Regardless of whether it’s Democrat or Republican, the Congress, both the House and the Senate, are bought and paid for by Politics slash Gov dot Inc, who control it. The commercial, professional consultants/lobbyists/fundraisers/operatives – they run the business of Washington DC now. So you have very few openings for anything creative, any alternative, any solution, and the public at large is looking for solutions.
Two, Jon makes a great point that I hadn’t thought about before. The fact is that there’s no 50/50 split. There’s a different kind of split. And the reason that Obama has not been as good as he could’ve been is because he’s being enabled. And every day, there’s this silent enabling of people who are afraid of being viewed as disloyal – ooh, don’t say that, you can’t say that, he’s our guy.
Well, the fact of the matter is, politically, if you don’t have your supporters pushing you toward an agenda, pushing you to be better, pushing you to a higher plane, you leave it to the ego – or to Obama’s ego, or his vanity, or his narcissism, whatever you want to call it. We will not benefit. The people at large will not benefit; it is about him, not the people.
So there’s this I believe unintended, or well-intended, silent enabling by giving him a pass. And it’s not just on civil liberties issues.
What scares me the most is that so many of the people that are on the sidelines, that would have to be activated – motivated and activated to make a movement, are taking it for granted.
John Cusack: I will see Assange soon and report back …
You can read this interview at Jonathan Turley’s blog and at The Huffington Post, where it was first published. It has been reprinted here with Mr. Cusack’s permission.