[Salon] REFLECTIONS ON JULIAN ASSANGE, THE ESPIONAGE ACT, AND THE GREAT INTELLIGENCE HOAX - Guest Post by Bruce Fein

REFLECTIONS ON JULIAN ASSANGE, THE ESPIONAGE ACT, AND THE GREAT INTELLIGENCE HOAX By Bruce Fein* On Wednesday, June 26, 2024, Julian Assange pled guilty to one count of violating the Espionage Act and was sentenced to time served, i.e., five years in detention defending against extradition to the United States from Great Britian. Mr. Assange immediately returned to his home country Australia with no restrictions on free speech. The Espionage Act charge alleged that Assange conspired to disclose “information relating to the national defense” with “reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” Despite the vast volumes of military or diplomatic secrets Assange’s WikiLeaks published over many years, the United States was unable to identify at sentencing or other platforms even one disclosure that was “used to the injury of the United States or to the advantage of any foreign nation.” Thereby hangs a tale of stupendous government disinformation to deceive the American people into accepting limitless surveillance power. The omission of harm at Assange’s sentencing was predictable. The United States has never been able to demonstrate under the Espionage Act particularized concrete harm caused by the publication of national defense information—even in camera to a judge. The famous 1971 Pentagon Papers case is exemplary. Daniel Ellsberg leaked the 47 top secret volumes of the Pentagon Papers revealing monumental government lies about the Vietnam War to The New York Times and The Washington Post. The government sued to enjoin the latter from continuing to publish the classified documents in New York Times v. United States. The United States Supreme Court adamantly refused. Justice Potter Stewart elaborated that an injunction would require proof that publication would “surely result in direct, immediate, and irreparable damage to our Nation or its people.” That proof was not forthcoming. Indeed, United States Solicitor General Erwin Griswald, former Dean of Harvard Law School, lamented that he ever defended the national security hallucinations of the United States in an op-ed in The Washington Post (“Secrets Not Worth Keeping”). Dean Griswold was not Code Pink. He was a crusty conservative recruited by the Nixon administration. His political orientation gives special weight to his likening national defense information as a synonym for political blunders or embarrassments: “I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat. Sen. Gravel's edition is now almost completely forgotten, and I doubt if there is more than a handful of persons who have ever undertaken to examine the Pentagon Papers in any detail -- either with respect to national security or with respect to the policies of the country relating to Vietnam. It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.” As with Assange, the government has never been able to show the disclosures associated with Chelsea Manning, Edward Snowden, or Massachusetts Air National Guard member Jack Teixera. Eugene Debs was convicted and sentenced to prison under the Espionage Act for uttering, among other things, the following commendable words opposing the pointless hecatombs of World War I. “The working class have never yet had a voice in declaring war. If war is right, let it be declared by the people – you, who have your lives to lose.” The United States Supreme Court sustained Debs’ conviction over a free speech defense in an opinion penned by Justice Oliver Wendell Holmes in Debs v. United States. Holmes soon repented his blunder in Abrahms v. United States. Debs would have been exonerated under current First Amendment jurisprudence. He was a presidential candidate in 1920 while imprisoned. He attracted nearly one million votes running as a Socialist Party candidate. Debs’ supporters subconsciously understood the stupendous government lie in representing that World War I was fought to make the world safe for democracy. In fact, the war exponentially expanded the British and French racist empires while the United States was denying women and blacks the franchise and tolerating serial black lynchin The feebleness of the government’s Espionage case against Assange is self-evident. It waited until 2019 under the Trump administration to indict him after long years of massive WikiLeaks disclosures. Publications that republished WikiLeaks information like The New York Times or Washington Post have never been charged although newspapers are not exempt from the Espionage Act. The suggestion that the government is concealing information showing WikiLeaks has endangered the national security to protect sources and methods is fatuous. The government is notorious for declassifying or leaking classified information to publicize alleged intelligence successes or to demonize enemies. Deputy Secretary of State Richard Armitage, for example, leaked the name of CIA officer Valery Pflame to syndicated columnist Robert Novak to discredit Doubting Thomases that Iraq’s Saddam Hussein possessed weapons of mass destruction, a delusion that occasioned the United States war of aggression in 2003. The catastrophic trillion-dollar misadventure that made Iran a regional hegemon continues to this very day. Some suggested Assange’s free speech defense would have faltered because he was an Australian and WikiLeaks publications originated outside the United States. The Supreme Court of the United States declared in Agency for International Development v. Alliance for Open Society International, Inc. II (2020) that foreign organizations lack the same free speech rights as their domestic counterparts. True enough But Assange could have asserted the First Amendment rights of his American audience to receive information about what their government is doing to defeat his Espionage prosecution. In Lamont v. Postmaster General, the Supreme Court recognized a First Amendment right of American citizens to receive “communist political propaganda” from Cuba. The Court further explained in Powers v. Ohio that a defendant may assert the constitutional rights of third parties if there is a “close relation” with them and there is “some hindrance” to the third parties’ ability to protect their own interests. Assange’s free speech interests in revealing to Americans what their government was doing aligned perfectly with the latter’s interests in transparency to hold their government politically accountable. Further, American citizens would confront more than “some hinderance” in defending their rights to receive WikiLeaks information in a criminal prosecution of Assange because they would not be a party to the proceedings. If the First Amendment does not travel abroad, moreover, the government could suppress all foreign criticism no matter how truthful and informative to United States citizens. It could criminally punish any speech originated by a foreigner in a foreign country that failed to praise the United States as the world’s “indispensable nation” that scrupulously honors the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the laws of war. In other words, the United States could criminally punish foreigners for failing to become its propaganda organs to deceive the American people. It is inconceivable that such a law would pass First Amendment muster. Assange, WikiLeaks, and the Espionage Act provoke deeper questions about the intelligence community itself and the value of spying. The Espionage Act postulates without a crumb of evidence that classified or national defense information is invaluable in fortifying the United States from foreign danger or in anticipating material developments abroad and adapting our foreign policy accordingly. In other words, the intelligence community with its vast access to secrets and resources is clairvoyant and saves the United States from national security blunders, ambuscades, or drive by shootings. There may be greater intelligence hoaxes, but if there are, they do not readily come to mind. The hoax endures, like Nostradamus’ prophecies or astrology notwithstanding chronic forecasting errors, for example, the fall of the Berlin Wall, the dissolution of the Soviet Empire, Arab Spring, the 1956 Suez Crisis, the Six-Day War, the Yom Kippur War, and the massive Israeli October 6 intelligence failure. In the intelligence forecasting world, there is no scientific certainty of the type that ordinary people rely upon to plan their affairs (like the force of gravity). The opposite story peddled by the intelligence community for power and money is fiction like the Wizard of Oz. The hoax serves a psychological craving, like a placebo. Humans prefer0 certainty no matter how illusional to indeterminacy no matter how justified. A nation feels safer if its spies on adversaries even if national security is diminished by false confidence or the risk of provoking blowback. An American is less likely to die of an international terrorist attack than by a falling vending machine. Yet the American people, through their representatives in Congress and the White House, eagerly spend trillions of dollars to prevent another 9/11 terrorist abomination with tools that have not aborted even one international terrorist attack in the United States. The notorious Shoe Bomber Richard Reid and Christmas Bomber Umar Farouk Abdulmutallab were foiled by airplane passengers, not by the intelligence community. Transparency should be the coin of the realm, except for military deployments in times of actual or imminent war. The Espionage Act should be narrowed accordingly. All history teaches that the alarming evils of secrecy of the type exposed by the Church Committee are far worse for self-government and the rule of law than the theoretical loss of candor or compromise associated with transparency. *Bruce Fein was associate deputy attorney general under President Reagan and author of American Empire Before The Fall. He is currently an international and constitutional lawyer www.lawofficesofbrucefein.com n