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Assange seeks to renew his appeal in the UK

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  1. First Amendment
RCFP's Gabe Rottman explains why one of the U.S. government's arguments in Julian Assange's case is so concerning.
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On Tuesday and Wednesday of last week, a two-judge panel of the U.K. High Court heard arguments from WikiLeaks founder Julian Assange in his bid to block his extradition to the United States on Espionage Act and computer crime charges.

The technical question before the court is whether Assange can appeal at all, after a single High Court judge said he could not in June 2023. If the court upholds that June ruling, Assange will have exhausted all recourse in U.K. domestic courts (though he has vowed to continue to challenge the extradition before the European Court of Human Rights). And if the High Court finds for Assange, it will hold additional proceedings down the road to consider the substantive questions at play. The court reserved judgment and the timing of any decision remains unclear.

Based on the public reporting, it doesn’t sound like there were many surprises. Assange continues to argue that criminalizing the receipt and publication of government secrets would offend the First Amendment. We have long highlighted our grave concerns with respect to the three “pure publication” counts in the indictment, which charge Assange directly under the Espionage Act based on the sole act of publishing government secrets online, the first time the government has ever secured an indictment from a grand jury on that theory.

Additionally, counsel for the United States continues to hammer another troubling claim: that this case is really just about Assange and WikiLeaks publishing the unredacted identities of sources who had provided information to the United States.

According to the BBC, one of the United States’ lawyers, Clair Dobbin KC, told the court: “This wasn’t a slip, or an error, this was the publication of a vast amount of material unredacted.” She also reportedly said that Assange’s “knowingly and indiscriminately publish[ing] to the world the names of individuals who acted as sources of information to the United States” is the “objective basis” that distinguishes him from other media outlets who redacted that information but reported on the underlying disclosures. And she continued: “The material that [Assange] published unredacted attracts no public interest whatsoever,” which is the “weakness at the center of the appellant’s case.”

As we have pointed out on numerous occasions, the failure to redact informants’ names may serve to distinguish the Assange case as a practical and ethical matter, but it is not statutorily relevant. The Espionage Act does not turn on the relative harm or the public interest in the disclosure of the information. Rather, it simply speaks of “tangible” material (think code books, photographs, blueprints, maps, etc.) or information “relating to the national defense,” which courts have routinely held refers to information that is “potentially damaging” to national security if disclosed and that the government has endeavored to keep secret. Put in plain terms, the Espionage Act does not draw the line the government suggests it does.

Further, the government’s position is essentially that the Assange case is one-of-one because of the particularly heinous nature of the informant identity information. But government officials will always be able to characterize any national security leak as heinous.

For instance, the Pentagon Papers are seen today as the quintessence of a public interest disclosure: revelatory of government impropriety, backward looking and lacking in secrets exploitable by an adversary, and directly relevant to a heated and ongoing public debate over the very nature of our democracy. But, at the time it sought to block publication, the government controversially filed a special appendix with the U.S. Court of Appeals for the Second Circuit arguing, with great specificity, that disclosure would affirmatively and gravely harm U.S. war aims in Vietnam.

As we wrote in 2019 when news of Assange’s indictment first became public, there are allegations against him — namely that he conspired with Chelsea Manning to “crack” a password to a classified government network — that take “this case out of the ‘easy’ category for press freedom advocates.” But the “informant” smokescreen is not one of them, and it is concerning that the government continues to bang that drum in court.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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