Julian Assange Indictment “Criminalizes the News Gathering Process”

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: Well, a London judge has ordered WikiLeaks founder Julian Assange to appear before a court next year to face a full extradition hearing. Prosecutors in the U.S. have indicted Assange on 18 counts, including 17 violations of the Espionage Act, in the first-ever case of a journalist or publisher being indicted under the World War I-era law. Assange said his life was, quote, “effectively at stake” if the U.K. honors a U.S. request for his extradition.

AMY GOODMAN: On Friday, Julian Assange appeared by video link from the high-security Belmarsh Prison, where he’s serving a 50-week sentence for skipping bail in 2012 when he took refuge in the Ecuadorean Embassy in London. He was granted political asylum. He lived there for almost seven years. The full extradition hearing is expected to last five days and will begin February 25th, 2020.

To talk more about Julian Assange’s case, we’re joined now by James Goodale. He’s the former general counsel of The New York Times. In 1971, he urged the Times to publish the Pentagon Papers, which had been leaked by the whistleblower Daniel Ellsberg. Jim Goodale is the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.

Welcome to Democracy Now!

JAMES GOODALE: Thank you.

AMY GOODMAN: It’s great to have you with us, Jim. Talk about what Julian Assange faces right now. It’s become very clear with the, what, 17 charges of espionage against him and now the court clearing the way for this extradition case next year.

JAMES GOODALE: Well, the first thing that happens, as you said, is there will be a trial as to whether he will be extradited or not. That will be interesting to follow, five days. If he loses, which most people think he will, he then comes back here, and he faces charges under the Espionage Act — espionage, if you can believe it — for publishing and gathering the news. Those charges are absolutely novel in the history of this country.

And if the government succeeds with the trial against Assange, if any, that will mean that it’s criminalized the news gathering process. Fancy way of saying when a reporter, like the two of you, go out and try to get a story from someone who has classified information — by the way, all information is classified in the government — you run the risk of going to jail. So that’s why the Assange case, from a journalist’s point, is very important. And from a publisher’s point, since he also has a website and he publishes, it’s astounding that the government has brought criminal charges against a publisher. Think of The New York Times, for example.

JUAN GONZÁLEZ: Well, but in terms of Assange, in particular, he — many in the press have, quote, “soured” on him over the last few years in terms of how they view him. Your assessment of how the press attitude, other journalists’, toward Assange himself and why there’s a danger in some of their thinking?

JAMES GOODALE: Well, the press attitude has been terrible. First, it’s driven by ignorance of what I’ve just said. And I think I’ve got the true view of this. But secondly, I think their view, and perhaps the public’s view, of Assange is that he’s a rapist. He faced rape charges in Sweden. He steals information. He causes leaks to take place.

AMY GOODMAN: Those were charges, by the way, that were never actually brought against him.

JAMES GOODALE: That’s what I was about to say. All of this is totally irrelevant to what we’re talking about today, which, I want to emphasize, deals with publication by The New York Times, by four companion papers, by Julian Assange, 10 years ago. Anything that’s happened since then is not part of the charge. So, therefore, if you hate Julian Assange because he screwed up the election, or if you hate him because he’s been accused of rape, forget it. It’s got nothing to do with that. We’re now talking about something that happened 10 years ago. And it raises huge issues of principle with respect to journalism and the news gathering process.

AMY GOODMAN: You talked about The New York Times. Continue on that line.

JAMES GOODALE: Well, in the Pentagon Papers case, OK, basically you had an issue of what happens pre-publication and when you will be allowed to publish. That’s known as a civil case, OK? After the publication, there can always be, but there never has been, a criminal case. So, therefore, when The New York Timespublished the Pentagon papers, the case was not over.

The government actually — and people have forgotten this — tried to do to The New York Times and its reporter Neil Sheehan exactly what it’s trying to do to Assange today. The government convened a grand jury in 1971, if anyone can remember that far back, to get Sheehan, try to see if he could connect in The New York Times to Noam Chomsky and others of the antiwar left who were in Boston. The grand jury went on and on and on — I don’t know, year, year and a half — and all of a sudden it dropped. We don’t know why it dropped. But I will tell you, as a matter of slight trivia, Jill Lepore, who is a famous Harvard historian, is trying to open up that case. And that case, when opened up, may be very interesting, because it might bear on what the government is trying to do to Julian Assange, the reporter, and WikiLeaks, the publisher of what he reports.

JUAN GONZÁLEZ: But, of course, the government is not claiming that their case stifles free speech. They’re claiming that Assange facilitated the ability of Chelsea Manning to actually break into government information. Could you address that, as well?

JAMES GOODALE: Well, I think that’s a way of reading it. But I think when you take your lawyer’s eyes and look exactly what they’re saying and actually what happened, he, Assange, did not facilitate Chelsea Manning, who is the source in this case, with respect to Chelsea Manning’s leaks. He, or she — they use both — leaked because she wanted to whistleblow. And Assange didn’t get in there and say, “Hey, start leaking.” Now, once he started leaking, and it leaked to WikiLeaks, which is a website that takes anonymous leaks, he did — he, Assange, had conversations with Manning. But it’s hard to say that Assange is the driving force in all of what took place, because he didn’t blow the whistle. Manning blew the whistle. Sometimes you forget. You think, “Hey, isn’t Assange Ellsberg?” No, Assange is The New York Times.

AMY GOODMAN: I wanted to —

JAMES GOODALE: Wiki — yeah.

AMY GOODMAN: — go to Mike Pompeo — now he’s secretary of state, but when he was director of the Central Intelligence Agency — about Julian Assange in 2017. This was his comment as CIA director.

MIKE POMPEO: Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended America’s First Amendment freedoms shield them from justice. They may have believed that, but they’re wrong. Assange is a narcissist who has created nothing of value. He relies on the dirty work of others to make himself famous. He’s a fraud, a coward hiding behind a screen.

AMY GOODMAN: So, that was Pompeo. Assange later responded to his comments while speaking on the Intercepted podcast.

JULIAN ASSANGE: Pompeo said explicitly that he was going to redefine the legal parameters of the First Amendment to define publishers like WikiLeaks in such a manner that the First Amendment would not apply to them. What the hell is going on? This is the head of the largest intelligence service in the world, the intelligence service of the United States. He doesn’t get to make proclamations on interpretation of the law. That’s a responsibility for the courts, it’s a responsibility for Congress, and perhaps it’s a responsibility for the attorney general. It’s way out of line to usurp the roles of those entities that are formally engaged in defining the interpretations of the First Amendment. For any — frankly, any other group to pronounce themselves, but for the head of the CIA to pronounce what the boundaries are of reporting and not reporting is a very disturbing precedent.

AMY GOODMAN: That was Julian Assange, speaking on Intercepted. Jim Goodale?

JAMES GOODALE: Well, I agree with what Assange said about Pompeo. And I think what Pompeo said about Assange could be applied to Pompeo. But it’s interesting the CIA chief is so interested in this. It’s because the CIA has been trying for half a century to cut back the First Amendment to stop leaks. That’s what this case is all about. First, following the Pentagon Papers, the Justice Department was able to convict sources of leaking to reporters, but they couldn’t get reporters, so they got half of the equation, so to speak. For 50 years, they’ve been trying to get the other half of the equation, to get reporters and put them in jail and limit the First Amendment protection of reporters in that regard. So, I think Assange is right. I also think, tell the truth, Pompeo’s got the right to say it. But you think about what he said. He’s just trying to cut back the First Amendment.

JUAN GONZÁLEZ: I’m wondering if you could —

AMY GOODMAN: We’re going to go to break.

JUAN GONZÁLEZ: Go to break first, yeah.

AMY GOODMAN: And then we’ll come right back. Jim Goodale is an attorney, former general counsel for The New York Times, during the time of the Pentagon Papers encouraged the Times to publish the stash of information that whistleblower Dan Ellsberg had. Jim Goodale is the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles. Stay with us.

[break]

AMY GOODMAN: “Sleep” by Godspeed You Black Emperor. This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: Well, as we continue to talk about the possible extradition of WikiLeaks co-founder Julian Assange, I’d like to turn to Pentagon Papers whistleblower Daniel Ellsberg, who spoke on Democracy Now! last month about the Justice Department’s decision to indict Assange on espionage charges.

DANIEL ELLSBERG: There hasn’t actually been such a significant attack on the freedom of the press, the First Amendment, which is the bedrock of our republic, really, our form of government, since my case in 1971, 48 years ago. But this is — I was indicted as a source. And I warned newsmen then that that would not be the last indictment of a source, if I were convicted. Well, I wasn’t convicted. The charges were dropped on governmental misconduct. And it was another 10 years before anybody else faced that charge under the Espionage Act again, Samuel Loring Morison. And it was not until President Obama that nine cases were brought, as I had been warning for so long.

But my warning really was that it wasn’t going to stop there, that almost inevitably there would be a stronger attack directly on the foundations of journalism, against editors, publishers and journalists themselves. And we’ve now seen that.

JUAN GONZÁLEZ: That was Daniel Ellsberg, the famous Pentagon Papers whistleblower. I wanted to ask you, James Goodale, first on his comments, also on the fact that Chelsea Manning, the whistleblower in this case, is currently now incarcerated for refusing to testify to a grand jury precisely about what happened here. And I’m wondering if you could talk about that, but also about the climate that we’re in today, that we have a president who, when he was campaigning for president, actually praised WikiLeaks and called on WikiLeaks publicly to try to break into or find Hillary Clinton’s supposed lost emails.

JAMES GOODALE: Well, we’ll talk about the president first, my favorite subject, because it’s under his regime that this case is being brought. Obama had a choice to bring the case or not. Now, the same facts — this is 10 years old, as I said earlier. He decided, because of First Amendment considerations, he would not bring the case. So this case is a reflection of Donald Trump. It would not be brought without Donald Trump.

And he has been enhanced in this ability to do so for exactly the reasons that Daniel Ellsberg says, that after his case, the government — and I’m sorry to say, it was Obama, in large part — decided to bring criminal proceedings against sources. Daniel Ellsberg was the first, as he said, and nothing for 10 years. And then the son of Samuel Eliot Morison, one of the great historians of this country, who was in the CIA, was the first such person to have a case brought against him. And there have been many others. And therefore, once the government has — as I said earlier, sort of has half of the transaction, the intellectual transaction — namely, can convict the source — they’re just tempted. They can’t resist the temptation to go after the reporter and the newspaper. And so, Daniel Ellsberg has been absolutely right to warn about this.

AMY GOODMAN: Let me ask you about the extradition relationship between the United States and Britain. Isn’t it true that countries don’t usually extradite people facing prosecution for political offenses? And isn’t that what espionage is?

JAMES GOODALE: I think that I would agree to both the hints of the answers to those questions. In the case of United States, it has a treaty with the U.K., and it says specifically in the treaty you can’t extradite for, quote, “political purposes.” Now, is espionage a political activity, which would exempt Assange? There are a lot of people who think so. And I think, probably, that’s the better argument. But whether in fact Assange will be able to get a fair trial in the U.K., when the British home secretary has already said he wants him indicted, and the prime minister said justice will be done, makes me wonder whether the court will fairly apply that exception. That’s what the argument will be about in the five-day period in which this trial will take place.

JUAN GONZÁLEZ: And assuming he is extradited to the United States, what is your expectation of what an eventual ruling in the Supreme Court here would be on this case?

JAMES GOODALE: Oh my goodness, in the Supreme Court. I was going to say, well, ask me in the trial court, because I worried about the trial court convicting him, because I think it’s hard for Assange to get a fair trial anywhere. There’s so much publicity about what he’s done. Now, you say, let’s go to the Supreme Court. Well, the Supreme Court is not bad on the First Amendment, you know? It really isn’t. But when it comes to national security cases, we can wonder whether the chief justice will be as good on the First Amendment as applied to national security as he has been — and he has been — with respect to other issues. And his vote is needed. You’ve got to find — you’ve got to find the fifth vote, as we all know, because conservatives sort of control the voting numbers on the court. So we don’t know what he’s going to do, and, therefore, the answer, which was terribly long-winded, excuse me, is that I’m pessimistic.

AMY GOODMAN: You know, we talk about the Pentagon Papers, Dan Ellsberg, the whistleblower in the Pentagon Papers. We talk about you as the person who pushed the Times to publish these papers. But especially young people don’t exactly know what happened. And if you can talk about what happened back in 1971, when Dan Ellsberg approached the Times? What happened inside the paper? You were this young general counsel for The New York Times.

JAMES GOODALE: Yes, I was young then. What happened was that Pentagon Papers, which consisted of the history, 40-plus volumes of United States relationships with Vietnam, was effectively brought in to the main editors of The New York Times and to me. I didn’t have any difficulty whatsoever to think that a history couldn’t be published. And I really didn’t care if there was a classified stamp or not. And if you looked at those sources of the study, New York Times was a source on much of the study. So, what was somebody going to do? Stop the Timesfrom publishing what it already published? I mean, that was basically my argument.

But when this argument and when the desire of the newspeople to publish was brought to those who own the paper, they were not so happy about it. And you can understand why. And they asked the former attorney general of the United States, who served under Eisenhower — his name was Herbert Brownell — what his opinion was. And his opinion was, “I am not even going to read the Pentagon Papers, because they have a classified stamp on it. And you will go to jail if you publish.” Well, Times published anyway. I asked Brownell, the same Brownell, to represent us in court the next day, because the government was trying to stop publication. That’s what the Pentagon Papers case was: a move by the government to stop publication. It had to be defended.

AMY GOODMAN: This was President Nixon at the time.

JAMES GOODALE: Yeah, it was under President Nixon. And I asked Brownell to defend us in court. And six hours or seven hours before we were about to go into court, he said, “I’m not going to do it.” So, you know, I was young and a little excited, but I was able to put together a team, in the next hour and a half, of lawyers. And we went into court with a whole new team, which, I know from subsequent conversations with the government, surprised the living hell out of them. How did I do that? That may have been my better achievement, just putting that team together. And we won.

JUAN GONZÁLEZ: But in your book, you also talk about the internal battles, before you ended up in court, within the paper itself about what to do and the pressure put by the White House on the owners and the editors of the paper. Could you talk about that, as well?

JAMES GOODALE: Well, let’s take the last question first: What pressure did the White House — because how did they find out about it? Well, they found out about it after it was published. But what the White House did, through its then-Attorney General John Mitchell — we know about him, because he spent part of his life in jail — he called Brownell and said, “Don’t defend the Times.” So that’s the pressure the White House put on The New York Times.

Internally, there was a huge battle between the chief editors and those who represented the publisher, with respect to choice of material that is to be published by the Times, which is the publisher’s role. He was advised by a former foreign editor and so forth and so on. And it got to be so bloody that the editor of The New York Times, whose name was Abe Rosenthal, went home and told his wife that either The New York Times publish the Pentagon Papers or I’m taking off. And I did the same with my wife, too. So, I mean, it was a bloody, screaming situation. And when the government asked us to stop publication — we published, the government asked us to stop — there was another huge fight, between me and those advising the publisher. And the screaming could be heard. There was actual screaming. But, you know, the First Amendment won.

AMY GOODMAN: We’re going to do Part 2 of this discussion, just to give people a sense of the pressure at that time, as we move into this new case. James Goodale is former vice president and general counsel for The New York Times, author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles. I’m Amy Goodman, with Juan González.