Marjorie Cohn is a professor emerita at Thomas Jefferson School of Law in San Diego, California. She has authored publications arguing against the legality of the 2003 US military intervention in Iraq as well as the US-led NATO interventions into Afghanistan and the former Yugoslavia. Professor Cohn is also a national board member of Assange Defense, a coalition dedicated to opposing the extradition of Julian Assange, the co-founder of WikiLeaks. In an interview with JURIST Assistant Editor Pitasanna Shanmugathas, Cohn explains why she opposes the extradition of Assange to the United States, arguing that his prosecution under the Espionage Act would constitute a violation of the First Amendment.
JURIST: To readers of JURIST who may not be aware, tell us, who is Julian Assange, and what are some of the key revelations that his organization, Wikileaks, is responsible for bringing to public attention?
Professor Marjorie Cohn: Julian Assange is a publisher and co-founder of WikiLeaks. In 2010-2011, they revealed evidence of U.S. war crimes in Iraq, Afghanistan and Guantánamo Bay. Those revelations included the “Iraq War Logs” — 400,000 field reports including 15,000 unreported deaths of Iraqi civilians, as well the as systematic rape, torture and murder after U.S. forces handed over detainees to a notorious Iraqi torture squad. They contained the “Afghan War Diary” — 90,000 reports of more civilian casualties by coalition forces than the U.S. military had reported. And they included the “Guantánamo Files,” 779 secret reports with evidence that 150 innocent people had been held at Guantánamo Bay for years, and 800 men and boys had been tortured and abused, in violation of the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. WikiLeaks also released the notorious 2007 “Collateral Murder Video,” depicting a U.S. Army Apache attack helicopter target and kill 11 unarmed civilians, including two Reuters journalists and a man who came to rescue the wounded. Two children were injured. The video contains evidence of three violations of the Geneva Conventions and the U.S. Army Field Manual.
JURIST: Why has Julian Assange been incarcerated in Belmarsh Prison in the United Kingdom, and do you believe there is any chance his legal team will be successful in fighting his extradition to the United States?
Cohn: The Trump administration indicted Julian Assange for violations of the Espionage Act and the Computer Fraud and Abuse Act for revealing U.S. war crimes. He faces 175 years in prison if extradited to the United States, tried and convicted. The UK arrested Assange and is holding him in Belmarsh Prison pending a decision on whether he should be extradited to the U.S. to stand trial. A UK district court judge denied extradition after finding that Assange’s mental health was so frail that he would likely commit suicide if extradited to the U.S. because of the harsh conditions of confinement he would face. The UK High Court reversed that ruling and Assange’s lawyers have appealed on several grounds, including violations of the UK-U.S. Extradition Treaty and the European Convention on Human Rights. Assange’s appeal is pending in the UK High Court. If he loses there, he can file an appeal in the European Court of Human Rights.
JURIST: In 2017, then-CIA Director Mike Pompeo branded Wikileaks as a “non-state hostile intelligence service” and denied that Julian Assange had First Amendment protection. Why is Pompeo wrong? How is the United States Justice Department’s prosecution of Julian Assange a violation of the First Amendment?
Cohn: Pompeo said, “Julian Assange has no First Amendment privileges. He is not a U.S. citizen.” But the Supreme Court has long held that the Constitution applies to non-Americans, not just U.S. citizens. And when the Obama Justice Department considered prosecuting WikiLeaks, they were concerned that it would violate the First Amendment. The Obama administration was unable to distinguish what Wikileaks did from what the New York Times and the Guardian did since they also published documents that Chelsea Manning had leaked.
JURIST: Those who support Pompeo’s view would assert that a distinction should be made between publishing and espionage. They would argue that Julian Assange, through leaking the classified information, engaged in espionage rather than publishing. Your thoughts?
Cohn: On November 28, 2022, The New York Times, the Guardian, Le Monde, DER SPIEGEL and El País signed a joint open letter calling on the Biden administration to drop the Espionage Act charges against Assange. They wrote, “Publishing is not a crime,” and noted that Assange is the first publisher to be charged under the Espionage Act for revealing government secrets.
JURIST: What do you think is the likelihood that if Julian Assange is extradited to the United States, he would be found guilty of violating the Espionage Act?
Cohn:It will be very difficult for Assange to get a fair trial if he is extradited to the United States. The Trump administration filed the indictment against him in the Eastern District of Virginia, a conservative federal court where the “war on terror” cases were tried. The corporate media will villainize Assange which will likely prevent the seating of an impartial jury.
JURIST: It is interesting that although the Obama administration declined to prosecute Julian Assange for his publication of classified documents, the administration was criticized for its prosecution of more individuals under the Espionage Act than any other previous administration. A report from 2013 notes that, under Obama, “Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press—compared with a total of three such prosecutions in all previous U.S. administrations.” Now in the case of Assange, we are seeing the Espionage Act being used to silence a journalist. What factors do you believe are responsible for the increasing application of the Espionage Act?
Cohn: The release of information has taken new and more expansive forms with the advent of the internet and the “War on Terror.” As Ralph Engelman and Carey Shenkman wrote in their recent book, A Century of Repression: The Espionage Act and Freedom of the Press, “the Espionage Act has become a weapon to combat new forms of digital disclosure and journalism.” Trump, whose administration filed the indictment against Assange, went after the press with a vengeance, calling it “the enemy of the people.”
JURIST: Given the Espionage Act’s chilling effect on free speech, whistleblower protection, and government accountability, do you advocate that the law should be repealed entirely? If the law is repealed entirely, what do you say to critics who argue that it will weaken America’s national security?
Cohn: The Obama administration indicted more whistleblowers under the Espionage Act than all prior administrations combined. But after convening a secret grand jury, they made the decision not to indict Assange because of the “New York Times problem.” That means they would also have had to indict journalists from major news outlets who did what WikiLeaks did. The charges in the indictment allege that the revelations of WikiLeaks harm national security. But those revelations contain evidence of U.S. war crimes, which the administration seeks to hide from the public. The charges against Donald Trump for violation of the Espionage Act allege that he withheld, concealed and mishandled classified documents containing national defense information including “defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack.” That’s what the Espionage Act should be used for, not punishing whistleblowers and publishers of information about U.S. war crimes.
JURIST: Opponents of Assange’s prosecution make the argument that the charges against him would prohibit practices that investigative journalists engage in every day. If Assange is prosecuted, how will this affect freedom of press in the United States and even globally?
Cohn:The indictment against Assange is based almost completely on functions that national security journalists routinely engage in, including cultivating and communicating confidentially with sources and soliciting information from them, shielding their identities from disclosure, and publishing classified information. If Assange is prosecuted and convicted, it will chill journalists both in the U.S. and abroad from publishing evidence of government wrongdoing.
JURIST: While some activists who support Julian Assange may be inclined to draw parallels between the US Supreme Court case Bartnicki v. Vopper and Assange’s situation, legal experts hold differing opinions on the matter. The Bartnicki decision, in which the Court affirmed that the First Amendment safeguards a radio station’s broadcasting of an illegally recorded audio conversation, significantly relied on the understanding that the radio station had lawfully acquired the recording. However, due to the provisions of the Espionage Act, it becomes implausible for a third party to obtain classified national security information “lawfully” if unauthorized to possess it. Hence, some legal experts have reservations regarding the likelihood of Assange (or even the New York Times) having an unequivocal First Amendment defense for publishing classified information. Your thoughts.
Cohn: The case of Julian Assange is a case of first impression. The First Amendment allows journalists to publish material that was illegally obtained by a third person if it is a matter of public concern. The commentators you cite wrote that the First Amendment should protect the right to publish information about unlawful government programs, which would include the commission of war crimes, including torture and targeting civilians. No publisher has ever been prosecuted under the Espionage Act for disclosing government secrets. The U.S. government has never prosecuted a publisher for publishing classified information, which constitutes an essential tool of journalism.
JURIST: My favorite Supreme Court Justice of all time, and also the longest-serving Associate Justice in US history, is William O. Douglas. A staunch defender of the First Amendment, he asserted in his book Points of Rebellion, “We must realize that today’s Establishment is the new George III. Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is also revolution.” Whether it’s the late Dan Ellsberg, Chelsea Manning, Edward Snowden, or Julian Assange, I always find it interesting how those who commit egregious atrocities like Henry Kissinger, Bill Clinton, George W. Bush, or Barack Obama are never prosecuted. Yet, it’s the people who expose their atrocities that face consequences. Professor Cohn, you have published scholarly content strongly critical of the legality of actions by US Presidents on matters like drone warfare, Iraq, Afghanistan, Yugoslavia, so I would be curious as to your thoughts on my point as to how the perpetrators get away with it, and the messengers suffer.
Cohn: Although the U.S. leaders you cite committed war crimes, they have never been brought to justice. When asked whether his administration would prosecute Bush officials for their war crimes, Obama said, “We need to look forward, as opposed to looking backward.” The Trump administration effectively blackmailed the International Criminal Court to stop investigating CIA and U.S. military leaders for their war crimes in Afghanistan.