After two days of hearings, British judges are still deliberating on whether Assange can appeal extradition to the United States to face the government’s charges against him. Political analyst, Noam Chomsky, believes that Assange’s extradition would be “catastrophic” for press freedom. Let’s find out why.

Julian Assange is the first publisher that the United States government has ever pursued under the Espionage Act, a piece of legislation from World War One that was intended to protect America from spies. The State Department lawyers don’t talk a lot about the publishing charges against Assange, preferring to maintain the impression that their case is based solely on the issue of protecting sources. They insist that the government is requesting the WikiLeaks founder’s extradition from the United Kingdom over the publication of informants’ names, not for handling leaked documents.

The initial indictment in April 2019 charged Assange with ‘computer intrusion’ a violation of the Computer Fraud and Abuse Act (CFAA). This charge references complicity with Chelsea Manning to hack into a Defense Department computer to obtain classified information. This focus on Assange the ‘hacker’ rather than Assange the ‘publisher’ initially allayed concerns among journalists that this case was going to become a direct attack on freedom of the press. Their relief was short-lived. Barely one month later, everything changed when to the amazement of many Assange was charged in a superseding indictment with an additional 17 counts of the 1917 Espionage Act, 3 of which are directly concerned with publishing.

The United States has every reason to play down the publishing charges, since the activities of the very media outlets reporting on the developments in the case could themselves be targeted if the indictment’s language were ever used against them. As Fred Kaplan (about as far from a fan of Assange as one can get) writes in Slate: “By the indictment’s logic, dozens, if not hundreds, of journalists could be arrested for simply doing their jobs.”

After the release in July 2010 of more than 70,000 Afghan War documents, WikiLeaks was heavily criticized by the US government for failing to redact names of civilians which potentially put them at risk of retaliation by the Taliban. Assange’s supporters point out that the US government has not presented a shred of evidence for the claim that Assange’s work endangered lives. They suggest that these accusations are a merely a ploy to distract public attention from the crimes committed by the United States military that Assange and WikiLeaks exposed including the hiring of child prostitutes by Defense Department contractors, friendly fire incidents, human rights abuses, civilian killings, and United States use of psychological warfare. When CNN, whose coverage has been highly critical of Assange, ran a comparison of some of the documents redacted by WikiLeaks to the same documents released by the Department of Defense under the Freedom of Information Act, it revealed that WikiLeaks had actually redacted more information than the Pentagon.

The criticism that WikiLeaks published unredacted material is not altogether unfounded. The most prominent example is Cablegate, WikiLeak’s collection of US diplomatic leaks that followed the publication of the Afghan and Iraq war logs, in 2010/11. However, the publication of the unredacted cables by WikiLeaks occurred only after the accidental exposure of the material by a mainstream journalist; the Guardian’s David Leigh.

The story goes that WikiLeaks volunteers had put an encrypted file online that contained all of WikiLeaks data as “insurance” against the potential occurrence of some massive security breach. Ironically, it was this precaution that actually led to a security breach, when Leigh, believing that the passphrase to access the cables was temporary, published it in his book, WikiLeaks: Inside Julian Assange’s War on Secrecy, which was made into the movie, The Fifth Estate. Wikileaks did indeed publish the unredacted material in September 2011, but only after it had already been published by others who had used the passphrase to decrypt the files.

Before WikiLeaks went ahead with publication of the cables, Assange even contacted the U.S. Department of State through his lawyer offering to remove any information that the Department considered could pose a danger to anyone. Needless to say, the offer was declined.

In terms of journalistic principles, the issue of redaction–editing and organizing material in a way that protects the identities of sources–is extremely important. Legally, however, as much as the US lawyers would like the public to believe otherwise, there is no language in the charges against Assange that specifically hangs on the issue of redaction, nor on the issue of potentially endangering lives of informants.

As Glenn Greenwald wrote in The Washington Post, “Although the indictment points to examples where Assange’s publication of classified records exposed and might have endangered people named in them, the charges do not hinge on this detail. All the charges require is that he gave war-related documents classified at the relatively low level of “secret” to the general public – you and me – and that we are “not entitled to receive them.”

The US government wants us to keep talking about the redaction issues issues because it stops us from understanding that this case, if successful, could set a legal precedent for overriding the First Amendment in journalism. James Goodale, former general counsel for the New York Times in the Pentagon Papers, described the charge against Assange for ‘conspiring’ with a source “as the most dangerous I can think of with respect to the First Amendment in all my years representing media organizations.”

Of the 18 charges levied against Assange under the Espionage Act, it is counts 15 to 17 that are of the most concern to journalists and human rights advocates. These charges have nothing to do with any alleged collusion between Assange and Chelsea Manning. As Gabe Rottman writes in Lawfare: “The theory behind [these charges] would permit prosecution even if Assange had received the material anonymously in the mail.”

What the US government has done through its use of the Espionage Act writes Greenwald, is to declare that “collaborating with government sources to receive and publish classified documents is no longer regarded by the Justice Department as journalism protected by the First Amendment but rather as the felony of espionage, one that can send reporters and their editors to prison for decades.” Jameel Jaffer, a professor of law and journalism at Columbia University has said that based on this indictment, a successful prosecution of Assange would “criminalize a great deal of the investigative journalism that is absolutely crucial to democracy.”

Perhaps the US government imagined that they had done such a good job in framing Assange as a “hi-tech terrorist” that few journalists would rally to his defense. Indeed, when the initial charges were declared, the strength of support for Assange from media groups was somewhat muted.

But the State Department did not take into account how the invocation of the Espionage Act and specifically the publishing charges they contain would inflame a sense of self-preservation within the community of journalists, at home and abroad, who are among the fiercest gatekeepers of the rights to freedom of expression.

Because the issue is not whether Assange redacted his material, or whether he is a real ‘journalist’, or even if his work put lives at risk—the issue for journalists is this: if they can use this legal device to go after him, they can use it to go after us.