Robert Scheer SI Podcast

The Nightmare Espionage Act That is Killing Julian Assange and the First Amendment

The use of the century old Espionage Act in the Julian Assange case continues to set the chilling precedent of a bleak future in American journalism, a precedent that endangers even those outside US borders.
Carey Shenkman. Photo credit:

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Carey Shenkman, attorney, author, and litigator specializing in civil and human rights, joins Robert Scheer for this week’s Scheer Intelligence, where Shenkman offers a sobering analysis on one of the most chilling attacks on press freedom exhibited in the Julian Assange case. Using his recently published book, A Century of Repression: The Espionage Act and Freedom of the Press, Shenkman details the history of the Espionage Act and how civil liberties have continued to be eroded as a result of the existence of this law and the lack of revision.

Shenkman talks about the bipartisan disdain towards the Espionage Act in legal circles yet its continued use by bipartisan presidents brings the conversation to its flaws and disreputability: “Over the decades, you have folks that are coming out with law review articles saying that it’s vague, verbose, that it makes no sense, and that ambiguity in the law is being exploited now to go after Julian Assange, to go after government whistleblowers. So there have actually been serious calls for its reform and repeal in recent years.” Assange faces 175 years in a U.S. maximum security prison after being indicted with 17 charges relating to the Espionage Act.

Going back to its inception during World War I, Shenkman explains what its true purpose was and how within the law, “you get a sense that this language of promoting disloyalty, of promoting opposition to the war, was actually used to go after conscientious objectors and folks that opposed entry into World War I.”

As for Julian Assange, the urgency behind bringing attention to the case is justified.  According to Shenkman, “We tried to dig through the history to see if a publisher has ever been charged for anything like Julian Assange has been accused of. And the answer is no. This is the first case in U.S. history of its kind. And it would set a precedent that would open the floodgates for prosecuting the press.”

Shenkman says if Assange is extradited, it will make his case a law school case for all the wrong reasons. Despite all the concern surrounding the overreaching power of the United States, this case could also open the door to countries around the world to extradite citizens from foreign countries for exposing their wrongdoings. As Shenkman mentions, “Assange is not a U.S. government employee. He’s not even a U.S. citizen. And somehow the U.S. government says it has jurisdiction.”

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Robert Scheer


Joshua Scheer


Robert Scheer: Hi, this is Robert Scheer with another edition of Scheer Intelligence, where the intelligence comes from my guest, in this case a well-known civil liberties lawyer, Carey Shenkman, he worked with a famous Michael Ratner on major cases, among which was the early defenders of Julian Assange when he was still in the Ecuadorian embassy and now, of course, he’s in a maximum security prison in England and the United States, President Biden wants to extradite him. Something started under the Trump administration, and he faces 175 years for material that has been published by major publications around the world and the five leading ones, The New York Times, Der SPIEGEL, The Guardian, El Pais and I think Le Monde have all issued a statement just two months ago saying that he has to be, these charges should be dropped because this is an attack on press freedom. Julian Assange is a publisher. They published his material. And this would be a very frightening precedent for journalism of any kind, not just Julian’s, and he’s a publisher as opposed to Edward Snowden or Daniel Ellsberg, who were people that had a relation to the government and had their own agreements about how they handle material. So that’s what makes the case so important from a civil liberties point. And at the heart of all this, and this is why I’m going to turn to Carey Shenkman is the Espionage Act and the Espionage Act, which sounded at first like something aimed at foreign spies, came into being with Woodrow Wilson at the time of World War I to get those spies ostensibly. Then it was used in some very famous cases. I’ll let Carey describe that history. And it fell into disuse until our recent post-War on Terror history. And it was actively used really for the first time by Barack Obama, who actually filed more cases under it than by all his predecessors and is now at the heart of the case against Julian Assange and, if there should be one, against Edward Snowden. So the book is called A Century of Repression: The Espionage Act and Freedom of the Press. So why did it, oh, there’s the book. Hold it up again. Yeah. And the point is you know, why did you stop to write this book? It’s been published by the University of Illinois Press. It’s widely available. So tell us about it and your coauthor, by the way, who I don’t know. 

Carey Shenkman: Thank you so much, Bob. And it’s an honor to be on the show and just wonderful to see you again. I really consider you a dear friend. So I’ve been following issues around the Espionage Act for close to a decade now, and folks might be wondering, why should we care about this law that’s 100 years old? So you pointed out that this is the main law that’s been used to go after whistleblowers. And now for the first time in U.S. history, a publisher who’s not even a U.S. government employee, not even a U.S. citizen, and somehow the Justice Department is claiming it has jurisdiction over an Australian who’s now been in custody of various kinds in the U.K. for a decade, more than a decade now. So why do we care about this Espionage Act? Well, it actually has a long and convoluted, bizarre and at times shocking history that goes back to World War I. And as you pointed out, it was passed on during World War I, actually just a couple of months after the US entered that war. And it was one of the main tools of political repression during World War I, basically decimating the Socialist Party and various labor movements such as the international workers or rather, the industrial workers of the world, which was one of the strongest movements in U.S. history. So to give a sense, this law is called the Espionage Act, but in fact, it’s been used beyond espionage. So when you and I think about the word espionage, most folks hear the word espionage, they think foreign spies. They think someone who’s being paid by a foreign power to steal information under the radar and feed it to another government. But in fact, this law was used to punish what the U.S. viewed as disloyalty or anything harming the war effort. Let me read to you one of the first clauses of the Espionage Act, which punished “Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military.” And it goes on. “Whoever shall willfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military shall be punished by a fine of not more than $10,000 or imprisonment of not more than 20 years or both.” So you get a sense that this language of promoting disloyalty, of promoting opposition to the war, was actually used to go after conscientious objectors and folks that opposed entry into World War I. It was the same thing during World War II, and these were mass trials. We’re talking dozens, hundreds of people. In fact, the first two thousand folks prosecuted under this law weren’t spies. They were folks that were opposed to the war. So that was really the push that got us to write this book. Because when we look at these cases in the modern day, when we look at Chelsea Manning, Edward Snowden, when we look at Julian Assange, these are folks who are exposing war crimes. They’re exposing misdeeds of war. They’re exposing violations of the Constitution. And we thought this sounded really similar to the very first uses of this law. 

Scheer: And why did it? But it wasn’t used much. I mean, the statistic that I keep reading is that under Barack Obama, more people were charged under this law than all previous presidents combined. And now it’s being used by President Biden in the case against Julian Assange. And what I mean, why this legislation? Why this law? 

Shenkman: So I’m glad you brought up that point about Barack Obama. So it’s true that Barack Obama prosecuted more government employees for giving information to the press than all presidents combined. So what our book talks about is that there was a shift after World War II. Whereas before, in the first two World Wars, it was used to go after the left and to go after the anti-war movement for war opposition. It shifted during the Cold War to be a tool for information control. So we saw this shift under McCarthyism, where it started to be used to prosecute government sources. So folks who are giving information to the press from within the government. So it is true that Barack Obama was responsible for more prosecutions for these what are called leaks or media disclosures than all presidents combined, but the theme and the motivation for those prosecutions remain unchanged, which is which is our main argument. So I’d say the reason that this law has been used is because it’s a vague and convoluted law. It’s actually considered poorly drafted. You look at law professors across the political spectrum. So it’s not just folks on the left or liberals who think this law is garbage. They’re actually right wingers who say it’s poorly drafted. And over the decades, you have folks that are coming out with law review articles saying that it’s vague, verbose, that it makes no sense, and that ambiguity in the law is being exploited now to go after Julian Assange, to go after government whistleblowers. So there have actually been serious calls for its reform and repeal in recent years. And our conclusion in the book is that this law really needs to be repealed at the minimum to allow a proper defense for defendants, which doesn’t exist under this law. 

Scheer: Well, I wanted to ask you about that. The case of Julian Assange is complicated by the fact that he was a publisher. And in your book, you discuss that because there is a strong feeling that we have a constitutional protection against what is the right word, prior censorship, right. That prior something, prior restraint, that there’s something sacred about the government not being able to say, you can’t publish this, maybe after you publish it, if you libel somebody or something, you can have a lawsuit. But that puts Julian Assange in a very different position than, say, Edward Snowden or Daniel Ellsberg, who once faced, I think, 120 years on the Pentagon Papers. It came up prominently in that case because he gave the Pentagon Papers first to The New York Times and then The Washington Post. And the government tried to prevent and succeeded actually, in stopping The New York Times after a few days from printing anymore of the Pentagon Papers. Then The Washington Post picked it up. That issue has never… The Ellsberg trial was declared a mistrial because Richard Nixon offered the job of being head of the FBI to the judge. Judge Burns. So I was there in the courtroom. I remember there was this incredible stir in Los Angeles. And then the judge said to Ellsberg’s attorney, I could, you know, keep the trial going. You know, he said they said, I can keep this secret. And Ellsberg’s lawyers said, Why? You know, and that caused a mistrial. But we never got any real good law on whether you can go after a publisher and exercise prior restraint or other things against the publisher. So why don’t you talk a little bit… Because I mean, Julian Assange, according to Nils Melzer, the former U.N. rapporteur on torture, is being tortured, and we know he’s had breakdowns. I think you’ve actually seen him in the past when he was in the embassy. I don’t know. Yeah. So you were familiar with his case. And here’s this guy. You know, basically, here are these five leading publications like The New York Times that printed his material. In November, they came out with a strong statement that if you do this to Julian Assange, you’re doing it to us. This is an attack on publishers. So tell us about that distinction. 

Shenkman: I’m glad, Bob, that you brought up the parallels to the Pentagon Papers case and Nixon, because this is a really strong connection and one that we make in the book, because in charging Julian Assange for publication, the Trump administration crossed a line that not even the Nixon administration crossed. So that administration came close. They were deliberating going after The Times. They sent FBI agents to Beacon Press, which is a small publisher that had the courage to publish the full Gravel edition of the Pentagon Papers that made it to their… So there are serious attempts to…

Scheer: Actually let me just interrupt. What you’re referring to is Senator Mike Gravel from Alaska, I believe. Who read the Pentagon Papers at his committee hearing. He was a very fiercely independent, courageous senator. And, you know, so that edition, because you can’t stop him from reading it in the Senate chamber, when Beacon Press, which I think was a small religious press in origin, a publisher, then, you know, they tried to go after it. Yeah, but tell us about the distinction there. 

Shenkman: So I think one of the most important things, as you point out, folks call Julian Assange a whistleblower. He’s not a whistleblower. He’s not employed by the U.S. government. He’s not even a U.S. citizen. He is not in the legal position of Chelsea Manning or Edward Snowden. Those two were U.S. citizens. They were government employees. Julian Assange is not a U.S. citizen. He is a publisher. He published materials. He didn’t have a duty to the U.S. government to keep secrets. And yet the U.S. is claiming that he’s subject to criminal prosecution for conduct that national security journalists engage in every single day. You open up the front page of The New York Times or any paper, you see classified information left and right. But in those cases, it’s officials doing it for their own gain. It’s Donald Trump leaking things to the press for his own gain. But these people aren’t prosecuted. General Petraeus years ago wasn’t prosecuted for leaking code word level information for his own personal gain. 

Scheer: But you should explain, he gave the top secret black book manuals that govern his briefing of the president to his mistress. 

Shenkman: Yeah, for a biography. 

Scheer: Yeah. And then he got a slap on the wrist. And he’s actually been a professor at University of Southern California, where I teach and many other universities, is a highly respected figure. But he had taken that oath, and you know, he was in the government and yet this was really top secret stuff. So it’s obviously a double standard. It’s used to punish people who… Well, let’s cut to the chase about Julian Assange. There’s a 17 minute tape that you can get on the Internet. The collateral damage thing that was revealed, was part of the material from Manning. And it shows the killing or shooting of journalists, Reuters correspondent shows the killing of children, young kids. And there were no weapons. There was no al-Qaeda. They were journalists in Iraq. And yet that’s so we wouldn’t know about that if Julian Assange had released that or, you know. 

Shenkman: 100%. And there were Freedom of Information requests filed by media outlets to access that video, and they never received them. So, I want to also add for our listeners and viewers that I had testified actually in the extradition proceedings of Julian Assange in London on these issues surrounding the Espionage Act and the threat that they pose for freedom of the press, because the U.S. is trying to argue that this case is business as usual. That Julian Assange allegedly put lives at risk, which is a claim that was debunked actually at Chelsea Manning’s court martial. And they’re trying to claim that there is legal support for this prosecution when in fact, it is completely unprecedented in the 100 year history of this law. We tried to dig through the history to see if a publisher has ever been charged for anything like Julian Assange has been accused of. And the answer is no. This is the first case in U.S. history of its kind. And it would set a precedent that would open the floodgates for prosecuting the press. In fact, it’s the reason the Obama administration declined to prosecute Julian Assange. So folks may not realize, even though this indictment was filed in 2019, a lot of folks associate Julian Assange with 2016 and publication of emails and the 2016 election. This case has nothing to do with that, in fact, has nothing to do with anything, any conduct alleged past 2010, 2011. There’s a couple of things in the indictment that go forward a few years, but the core of the indictment has to do with Cablegate, with the Iraq and Afghanistan publications. That case didn’t change at all. The file before the Trump administration, the case file the allegations they had, were the same ones the Obama administration have and the Obama DOJ refused to prosecute. This was called “the New York Times problem” because they knew that if they prosecuted Julian Assange, there was no legal distinction between prosecuting Assange and all the other media organizations that publish the same stuff. But the Trump administration, the Trump DOJ, decided to change its mind. And that’s why now press groups, outlets that have actually criticized and shown hostility to Julian Assange, like the New York Times, have not been the biggest supporters of Assange. In fact, their editor at the time, Bill Keller, was trashing Assange and talking about… saying stuff that he had dirty socks and all these things and I’ll actually call parallels to Daniel Ellsberg. They did the same thing. And you might remember, they did the same thing about Ellsberg. In fact, Neil Sheehan, before he passed away, Neil Sheehan was the one who published the initial scoops of the Pentagon Papers for The New York Times in a big piece right before he passed away, he talked about how he actually deceived Daniel Ellsberg and made him commitments that he didn’t actually keep. So we’ve seen this ambivalence from mainstream media works toward folks that are working with them and really providing them these incredible scoops. But now, actually, The New York Times is, as you pointed out, a fierce opponent of this prosecution. So many dozens, hundreds of media organizations in the US and around the world are opposed to this extradition because of the precedent it would set, one that the Obama administration was aware of, but the Trump administration reversed course on. 

Scheer: And now the Biden administration is very eager to get Julian Assange, you know, extradited from England and to be put in a maximum security prison in the United States. And the passion, you’re absolutely right, of course. And you know the law much, much better than I do. But the irony here is that the people now in this Democratic administration that are fiercely eager to incarcerate Julian Assange and convict him in the United States, are angry with him over what he did in revealing Hillary Clinton’s speeches to Goldman Sachs and the Podesta files in the [indistinguishable]. So it’s always the case everybody’s for freedom of speech or press or assembly. As long as you’re targeting people they don’t like. When you’re in the government, they’re targeting you. You know, this is why Nixon at first didn’t want to go against… I read this in your book, it reminded me at first Nixon, by the way, excellent book called A Century of Repression: The Espionage Act and Freedom of the Press, a very important book to read, really, because we take freedom of the press, freedom of speech for granted until they’re attacking someone we like or us. And in the case of Nixon, when he first heard about the Pentagon Papers, he said, hey, they’re attacking Lyndon Johnson, they’re exactly the Democrats, let them have it. And then, you know, some more hawkish people said, no, this will come after you. And so he got involved and denounced Ellsberg because he was still running the Vietnam War. And this would undermine it. It would show that it was the tissue of lies that got us into that war. Well, something very similar is happening now with Julian Assange. You’re absolutely right. The charges against him and I think it will be an enormous embarrassment for the Democratic administration if there’s still a power and Julian Assange is on trial and we and the public realizes, wait a minute, this guy is going to be put away over the rest of his life because he told us about helicopter pilots killing journalists, including Reuters correspondents in Iraq. And yet the passion that drives it clearly is that Julian Assange released information that was embarrassing to the Democratic Party, even though that’s not an issue here. Another irony of this is that Julian Assange really did what a publisher should do. He was an equal opportunity tormentor, if you like, with the truth. He embarrassed the Russian government, the Chinese government. You know, governments all over the world with the WikiLeaks revelations. And yet even The Washington Post at one point and Bill Keller at another point at The New York Times turned on him because, as they say, they like him when he’s embarrassing their opponents, but not when it gets close to home. And you were in the middle of that, right, when you were actually defending him. 

Shenkman: So I worked with Michael Ratner and his law firm for several years. And Michael Ratner at the time, before he unfortunately passed away in 2016, was one of Julian Assange’s principal lawyers. 

Scheer: And but, I mean, you were up against that kind of contradiction even then. I mean, this statement of The New York Times and the others, Spiegel and El Pais, The Guardian, New York Times and I think Le Monde, is very clear, but it’s not given much publicity. And basically, Julian Assange has been the subject of a sort of character assassination, as was Daniel Ellsberg, as sort of shooting the messenger with a vengeance. You know, what’s really should have nothing to do with it. I’m not just going to disparage his character, whether he treats his cat well or any of the, you know, the claims from Sweden, which have been dropped about his mistreatment of women he was having sex with. But this is again, we always say, don’t shoot the messenger. It doesn’t matter what the motives of the messenger are. I think his motives are comparable to any publisher that has stuff that we ought to read that makes good reading and is important news. But that shouldn’t matter. The fact… What is his stake here is no one that I know of that has looked at this material as massive as with Edward Snowden denies that this is material that the public had a right to read or need to read. And also, as in the Pentagon Papers case and Snowden, they haven’t really produced any evidence of innocent people being hurt or troops being killed as a result of this material. You know, it embarrasses people in power, but it doesn’t even get into the, or at all get into the issue of real national security or the survival of, you know, combatants or what have you. 

Shenkman: Definitely true. I think that’s an important point about the constant refrain that we hear, and it’s really a deflection that lives are being harmed, that the folks in the U.S. government are being put at risk. And these are aspects that years later end up being debunked. I mean, there have been interviews with officials about the WikiLeaks publications about the disclosures of Chelsea Manning. It came up at Chelsea Manning’s court martial, that the government couldn’t prove that harm had been done, actually. And to the point that these types of revelations do a public service and in fact, a high US appeals court, the Ninth Circuit Court of Appeals, went on record in one of its opinions saying that the Edward Snowden revelations had done a great service. And that was in a big ACLU case over the last couple of years. So I do want to turn back to this character assassination point you bring up, because I do think that’s really important. And I think that one big aspect of these cases is the human aspect. I think sometimes we’re only talking about these abstract ideas like these laws. And I think the legal impacts in these cases and these trials, we can sometimes lose track of the fact that these are human beings that have their lives impacted and ruined over these cases. Julian Assange has a family, and has two young children. He’s been in custody in some respect in the embassy, in Belmarsh Prison now for over a decade. But he’s an individual and this has taken a huge human toll. And it’s the same with folks like Daniel Ellsberg. I mean Ellsberg was seriously, I mean, a serious threat. And those around him, they saw that he was in a serious threat, spending life in prison. And yet these folks on top of that see character assassination. I’ll read from The New York Times Article in 1971 about Ellsberg. And keep in mind that Ellsberg was the source of the Pentagon Papers, that they benefited and still do. They said that he was, quote, “a divorced man living in a semi bohemian atmosphere of a Malibu beach house with a flashy sports car and an on again off again romance.” You zoom forward about 40 years. And you see they say about Assange “WikiLeaks founder on the run trail by notoriety,” and they talk about how he’s whispering in London restaurants, he is painted as self-centered, he’s comparable to these terrible figures of the past and becoming this defector of the Internet era and kind of a cult figure they talked about. So we see these parallels and it doesn’t change. Another thing that doesn’t change, actually, you pointed out, importantly, that the judge in the Pentagon Papers case was approached by the FBI with an offer to become its head. Actually, Nixon’s plumbers, the secret CIA unit, was at the center of that. The reason the Pentagon Papers case, the case against Daniel Ellsberg failed ultimately and he’s not spending, he didn’t spend the rest of his life in prison was because of all the illegal stuff. Not the prosecution and not the plumbers have done so. They made that offer. They were spying on his legal team. They’re spying on the lawyers with wiretaps that got exposed in court documents. And most importantly, they broke into a psychiatrist’s office to try to dig up dirt on him. And it got so bad that the judge had to throw it out. I mean, the case had been so tainted. And now we see similar conduct, similar types of impunity from the CIA in the Assange case, there was a huge, huge piece in Yahoo News. It was about a year or two ago now about how there were plots. And this wasn’t this wasn’t a rumor. This is actually confirmed by numerous sources within the government that there are plots to assassinate Assange. I mean, we’re talking wild stuff about having shootouts on the streets of London outside the Ecuadorian embassy. And I wish I was making this stuff up. But actually, Mike Pompeo, the former CIA director, just published a book where he gloats about how he pressured the Ecuadorian government to get rid of Assange. He talked about how he hoped that Assange would be extradited and prosecuted. So, in fact, there are high level officials in the US government that were hoping to take extra legal means to spy on Assange, spy on his lawyers, spy on his visitors. 

Scheer: They had copies of his conversation with his attorneys. 

Shenkman: Yeah, they’re spying on his lawyers, just as they did with Daniel Ellsberg. I mean, these prosecutions. They think they’re above the law, and that’s really horrifying. 

Scheer: Well they are above the law. Let’s cut to the chase here. The conceit of the American experiment in democracy is that we have these written down rules, beginning with our Constitution, these protections, and the founders of this nation, not perfect human beings, had hold of a very important idea that power corrupts and power had corrupted the Roman Empire, a power corrupted obviously England, or they wouldn’t have had to make a revolution in the English crown. And they also had an idea that you had to restrain power by guaranteeing the sovereignty of the individual and so forth. And so then they passed legislation right away, the Alien Sedition Act and so forth that allowed power to be misused. That’s always the tension. People in power can say the nicest things about democratic freedom, individual rights. But when they’re in power, as with the Democrats and Julian Assange, they don’t want people to embarrass them. And yet the original American press that had this absolute right of freedom of the press could be scurrilous, could be tough, you know, their motives could be challenged. And they also wanted people to read their war posters and their pamphlets. Tom Paine certainly aimed for an audience. They you know, but they were publishers, they were journalists, they were press, and their rights were guaranteed because it would save us from the truly powerful people who are in government. That has all been forgotten. And the reason your book is so important, I found, was that this Espionage Act, which almost by itself sounds virtuous, you’re getting the bad guys, you getting the spies, foreigners are coming here, that was what they said around the passage of it. And we’re going to get them. We’ll get those Germans. They were the bad guys then and now would be Russians again once again. And they use that against Julian Assange. What’s his connection with them? But what your book lays clearly showing this history is that we’ve always had an ambiguity. Even you have some very respectable Supreme Court justices and others who waffled on this issue. This is a book really worth reading because it gets into the human contradictions behind the principle of law. You know, and it’s very funny. Somebody in your book who comes out very positive, Justice William O. Douglas references just as a little aside for this podcast, and he and Justice Hugo Black were the two justices that were very strong on protecting free press and so forth. Ironically, before that happened, that happened, I guess, in the late sixties, ’69. I was in Justice Douglas’ office when I was writing my little pamphlet about how the US got involved in Vietnam, and I was doing it for Robert Hutchins Fund for the Republic, the Center for the Study Democratic Institutions, which William Douglas was a member of. So Hutchins was able to arrange for my interviewing him and Douglas, and one of his things he’d done, had written a book called Far From Malaysia. And he was celebrating a guy named Ngo Dinh Diem who, the U.S. had been put in power in Vietnam to prevent an election and to prevent the unification of the country. So it’s one of Justice Douglas’s errors, I think, because he wrote books. And so. So I’m in his office. And when I challenged him on this in a very polite way and asked, you know, do you still feel this way? He ended up telling me to get the police escort me out of there. I mean that so crudely. But, you know, this interview is over. He didn’t want to discuss it. So even as worthy a defender of civil liberties like William Douglas, when you’re going too close to something of an inconvenient truth, then suddenly people shift over. And that’s what happened to the Democratic Party on this. That’s how whistleblowers became the bad people. And even now, somebody like Trump and DeSantis who are running, they maybe, Trump might’ve pardoned. And he didn’t do it. But there was even some thought that maybe he would pardon. And the Democrats seem to have the great vitriol of getting Assange, and they’re forgetting about the larger issue of a free press. Are they not?

Shenkman: Absolutely. I’m glad you brought up the bipartisan aspect of this, too, because folks sometimes think, well, this is a right wing problem. It’s just the Trumps and the Nixons and the Republicans going after whistleblowers or publishers. And you look at history, that’s not the case. The Espionage Act was passed under a Democrat. It was also used by FDR to go after the Black press, to go after anti-war advocates and it was used by Barack Obama to go after, as you point out, more whistleblowers in all administrations combined. And in fact, Eric Holder, who is Obama’s attorney general, said that his biggest regret of his tenure, this is after he left office, his biggest regret was going after the Associated Press for their phone records, which was a huge, huge scandal at the time. And at that point, surveillance and interference for journalists increased. Now, Eric Holder supports reform of the Espionage Act. I mean, this is remarkable. You have a former CIA head actually, Brennan, as well, who supports reform of the Espionage Act. So the use of this law is bipartisan, but also the push to reform the law is bipartisan. This isn’t a problem just of the Republicans. But what we’ve seen actually is you have folks like Trump who get into office who say things that the press is the enemy of the people. I wish I was making that up. But Trump said the press was the enemy of the people. And you have folks like that who come in with an agenda to go after the press for their personal gain. So when we have these types of laws that can be abused, that are so vague to be abused, they end up being abused by the wrong administration. 

Scheer: Let me conclude this and I urge people, you don’t have the whole of the book to hold it up again. I don’t mind. Look, I’ve written a number of books myself, and let me tell you, the more worthwhile the book you write, the more difficult it is to get it discussed and get it out there. You know, and that’s really a problem. But this is a book, really… I teach this stuff and I know how valuable this book is. And it’s called A Century of Repression: The Espionage Act and Freedom of the Press. And I just want to bring up one little anecdote or not anecdote, example of this importance of freedom. Not taking it away from strictly… Well, it’s still national security. But on this podcast show, I had the person who wrote the most important book really, about the Spanish flu, the COVID of a century ago, and the Spanish flu, if we called it, as they have called it, the Chinese virus now is an effort to always and it was under Trump to blame it on China. The Spanish flu, which was, by the way, caused many more deaths, had nothing to do with Spain. Spain was neutral during the war, and so people there also die from this flu. Now you do… If you wanted to have a location, it should have been called the Kansas flu. I started on a military base in Kansas, and Woodrow Wilson, the guy who did the Espionage Act, was so worried that because he was having trouble building up support for entering World War I, we have a very large German population of immigrants in the United States. And the worst thing is to take these troops from a Kansas military base and put them on a troop ship, because that’s where they will spread and they’ll bring the virus to the rest of the world, which they did. They did. So this was the Kansas flu. And again, if reporters at that time had written, tried to write about it, they would be considered subversive. Right? Interfering with the war effort. And so when we think about, you know, that the first casualty of war is the truth, that’s really what’s going on here and the rule of law that we pride ourselves in, our Constitution, was intended exactly to protect freedom of speech and press and assembly in times of passion. And yet we’ve now interpreted it to be only in times when you feel absolutely secure. You can’t do it during a pandemic. You can’t do it during a war. Well, that’s exactly, you’re a big constitutional expert, I’ve always been struck by that. This is not supposed to be a leisure time right, this is an emergency right. That’s when you get into the fire in the theater. Maybe sometimes it’s so focused you can’t give the names of troops or which, by the way, Leon Panetta did or they did with the SEAL team that killed bin Laden, suddenly it was okay to give their names out. These rules get violated all the time. Official secrets are leaked. We see it even with both Trump and Biden. They have official documents in their hotels, rooms and everything else. But the important point is that maybe it’s a good way to end, the freedom that is significant is the freedom in a time of danger. You know, any government that feels totally secure can allow people to say anything. It becomes entertainment. You know, if you’ve got the population with you when good times are rolling, freedom has to be protected. When the debate is hitting the third rail, you know, when you know when that’s what happened with World War I, you had pacifists, you had labor people like Big Bill Haywood. I found that the beginning chapters of your book are really quite compelling using Victor Debs. These people were talking about the big issues and that’s what made them threatening and that’s why this act was brought about. No? 

Shenkman: 100%. I mean, it’s those types of cases that define our laws. It’s not the peacetime cases. It’s what folks expose during war. It’s what folks expose when the time gets tough. And we see that going back to 100 years ago when our modern First Amendment was shaped by those cases, by the Eugene Debs case. The Debs case was a major Supreme Court case that’s referenced in first year law school textbooks. Same with the Pentagon Papers case that’s talked about in every constitutional law class that’s talked about. So these cases, they make a difference. And the Assange case, if he’s extradited, if he’s prosecuted under the Espionage Act, that’s going to be a law school case because these wartime cases shape the First Amendment. It’s not these words. I mean, they’re just words on a page. You have to fight for them. You have to have them upheld in court. But you have an administration, you have a government that is pushing that, that is eroding that, that feels that it’s above that constitution. And that’s what’s truly scary. It’s the reason we wrote this book, which I’ll remind folks, even though it’s about a law and the 100 year old law, we… 

Scheer: Give me the name of your coauthor, will you?

Shenkman: Oh, yes. So I co authored it with Ralph Engelman. He’s a respected media historian and professor emeritus at Long Island University. We were working on the project together for about, gosh, seven or eight years now. We were going to publish it actually before the Trump administration began, and then he got in the power and just gave us way too much material, unfortunately. But I had met Ralph, actually at a Chelsea Manning art event in New York City. He was interested in exploring the Espionage Act from a journalism standpoint, and he wanted to work with a lawyer to really dive into the weeds of the legal implications. So what we did actually was a partnership between a journalism professor who is the head of the board for the George Polk Awards and a constitutional lawyer. So this partnership really gave us a chance to look at this through a number of perspectives which we hope really comes through, because this law, in the end, it’s not about espionage. As you and I and most folks would understand that word. It’s much more. 

Scheer: Well, let’s end on this. But I think the point you made, if Julian Assange is I think, I don’t want to be cynical here, but maybe the people, the Biden administration just hope he dies or goes crazy in jail and then they’ll have their vengeance and not have to deal with it. But if they actually succeed in extraditing him and he’s in a maximum security prison, well, he’s not going to be able to have an easy time talking to his lawyers or communicating. And the real danger and this came up the Pentagon case. They’ll probably try to say, you can’t admit this material or it’s not relevant or it’s classified or what have you, and try to prevent the people reading about it or listening, you know, following it from understanding what we’re talking about. Again, to use Gore’s idea of inconvenient truth, this is really the ultimate inconvenient truth. If you’re involved in a war to save the freedom of the Iraqi people and overthrow a dictator, and you are there shooting journalists, including for a Western news organization like Reuters, and you’re killing children who you think are accompanying news reporters or they brought their children to the action. That’s what the words of the helicopter pilot were. It doesn’t get any more basic than that as far as news that you should have. It defines what that war was all about and that I don’t understand, tell me, because you’ve been involved with trials and everything. Well, it’s a good point on which to end. Let’s say they extradite Julian Assange. What happens then? 

Shenkman: The Pentagon Papers case against Ellsberg was known as putting the Vietnam War on trial and there was a huge effort to prevent the substance of what Ellsberg exposed from being presented in court. Even those, as you point out, are probably the most relevant part of that. The cases under the Espionage Act are inherently unfair. That’s actually behind the push, the main push to reform this law, is that defendants are not allowed to talk about what they revealed. They’re not allowed to argue that they were serving a public interest. In fact, the question under an Espionage Act case is whether or not there is a disclosure of national defense information. It doesn’t even have to be classified. That’s it. There’s no chance to present a defense. There’s no chance to talk about the public interest that served. So when you look at cases, actually so there’s a prosecution, I encourage folks to to look into. We talk about it in the book. But Daniel Hale, who is prosecuted for being a source for Jeremy Scahill, for exposing the murder of civilians by drones, the government argued and the court upheld it, that Hale and his legal team shouldn’t be allowed to talk about the drone strikes killing civilians. And that wasn’t actually even admissible. It wasn’t that they could talk about it in the briefs and it would be weighed. No, it wasn’t even admissible. So if Assange would be extradited to the US, I think there’s a serious risk that the core, that the Collateral Murder video, that the wars in Iraq and Afghanistan, that the actual public benefits or the awards that journalism won would not see the light of day. The legal team couldn’t present that. And that would be absolutely shameful. It would be a shameful look at our legal system. It would be a shameful result for the First Amendment. And that’s one of the reasons why so many folks are opposing this extradition right now. 

Scheer: And they should oppose the law. It’s interesting, I happen to be in the court in Albuquerque when a Reagan appointed judge said Wen Ho Lee, a scientist from Taiwan, not from mainland China, who had been working at Los Alamos and was accused, really irresponsibly in the beginning with reporting in The New York Times, somehow he stole secrets for a foreign government and the assumption was China and everything. And the judge in that historic situation apologized to Wen Ho Lee on behalf of the government, of the courts of Congress for failing you and failing our society. And, of course, he finally had seen the material. He finally saw the substance, which was going to be denied in the trial. But he got to read it. He had the clearances. He spent a lot of time looking at this. And he said, there’s no case here. It was one very minor issue, which was for time served, which is actually using some files as a doorstop or the files were in the wrong place, you know. But, you know, not that Wen Ho Lee had given any information. This was supposed to be the most sensitive nuclear weapons secrets. It was all phony. But he could he was facing also long time in jail. He was being held in solitary for nine months, you know, at that time and that truth that he had not given anything to anybody and after all, he did have clearances and so forth, would never have come out. And so you’ve really presented a very sobering possibility. I had been going with the idea, well, if Julian Assange is extradited, at least we’ll have a trial and hear the facts. You’re saying and I, from my own experience covering some of these things, you’re absolutely right. And I remember a little. I’m old enough to remember I happened to have been listed as a defense witness in the Pentagon Papers case. I had been to Vietnam. I’d written about it. I knew something about it. And the whole argument was, would they even be able to call people like me? I was one of a group of experts, and it was pretty clear that this judge wasn’t going to allow that. So let me… Okay. Final point here. We’ve taken time, but I think this is a good educational opportunity. I teach at a school, university where we have over 6000 students from China. We have a lot of students from Saudi Arabia, from India, from, you know, lots of places all over the world. We’re actually a higher number, I think, almost than any other school. And it’s in the air when these students come to all of our classes. I guess I’m one of the exceptions. I raised some questions but there aren’t too many. But generally, there’s a feeling they’re here to learn about freedom, to learn about democracy, even if it puts them in an awkward position with their own home government, you know, or going back. Nonetheless, we kind of feel we have the secret sauce of freedom, individual rights, free society and so forth. And once again, in this conversation, I’m reminded by what you just said, particularly what you just said in the last few minutes. This is largely a charade. Now, people are going to jump up and down right now and say don’t call the protection of individuals a charade. And yes, it’d be a lot better if in China or now in Russia or anywhere you had a written, but they have written constitutions. But one that at least, you know, has some clout, some significance or restraint, you know, separation of powers, all the things we talk about. Right? Protection of individual rights. And yet, once again, we have a case here where, okay, you know, look what happens to a Julian Assange. Where is the where? Well, if you were teaching at a law school right now and a student raised their hand and say, what does it all add up to? You’ve spent, you know, you’re a young guy still, right? You’re 35. Yes. But you because you’ve been really in the midst of it. What if I’m in your class? I say teacher. You know, Professor. Really? What is it, what does it add up to? Is it just smoke or is it just propaganda? Yeah, you know. Okay. What if this all were in the Chinese constitution and there were some good paragraphs in the old Soviet constitution. Where, how do you give life to it? 

Shenkman: What’s sobering is that I want to remind folks that Assange is not a U.S. government employee. He’s not even a U.S. citizen. And somehow the U.S. government says it has jurisdiction. Over this person for publication that exposes the US crimes and war crimes and human rights violations. So what does that mean? That means the US is saying that anyone, literally anyone on earth is subject to this Espionage Act. And what I want, what’s honestly scary and I think folks don’t talk about enough. Imagine if China or Russia said the same thing. What if Russia came forward and said, we want to extradite this U.S. citizen under our laws to face prosecution and life in prison in Russia for publishing evidence of war crimes committed in Ukraine, for instance? What if China… Yeah, by Russians. The same thing, what if China did that? I mean, we folks would be up in arms. They’d say they’d see it for what it is. I mean, and that’s exactly what the U.S. is doing. And I think if this case goes forward, it’s going to legitimize other countries doing it. And that’s truly scary. Just imagine any other country on earth saying that someone who is not even a citizen of their country is subject to prosecution for exposing the misdeeds of their government. 

Scheer: And doing it outside the territory of the United States. 

Shenkman: 100% was not in the US. Not even a U.S. citizen. 

Scheer: And it’s not just the U.S., though, if England grants that, there goes the whole English law, going back to the Magna Carta. I mean, this just means that power gives you the right. The very idea, I’ll end on this, the very idea, the basic unfortunately conceit of the American experiment was that power should not give you the ability to wipe out law, deny the rights of individuals. That power could be constrained, examined, controlled. And yet we see when it comes to anything important in the way of a challenge to power that doesn’t work. We still have not been able to read the report that Senator Dianne Feinstein’s Intelligence Committee collected on torture. We had a redacted version of the introduction. No one has gone to jail for any of that. No one had ever been persecuted. The only people persecuted are people like John Kiriakou, who said, yes, there is a torture program. Right. You know, okay, that’s a depressing note but I want to applaud you at this young age, relatively young again. Oh, my God. What am I, 50 years older than you? And yet you’re doing this great work, So thanks, hang in there and I’ll come back to you with another interview if and when the Assange Case moves on. Again, the book is called A Century of Repression: The Espionage Act and Freedom of the Press. Basically what it should be, the Espionage Act versus freedom of the press. But that’s another issue. And it’s University of Illinois Press. You can get it in electronic versions. You get it everywhere, independent public bookstores and Amazon, of course. I want to thank Carey Shenkman. Thank you. I want to also very much thank Laura Kondourajian and Christopher Ho at KCRW for posting these shows and doing a great job of it at that independent NPR station. I want to thank Joshua Scheer, our executive producer, Diego Ramos, who writes the introduction to these and other aspects of it. Max Jones, who posts at ScheerPost and the JKW Foundation, which is in the memory of Jean Stein. 

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