S.F. police chief apologizes for raid
Free-press tests: Leak cases differ, but questions remain the same
About two weeks after San Francisco police went to freelance reporter Bryan Carmody’s home with a sledgehammer to look for leaked files, Trump administration prosecutors charged Wikileaks founder Julian Assange with conspiring to leak government secrets.
The cases differ in many details but have at least one thing in common: Both men obtained confidential information from a government custodian in order to make it public — an action their accusers say
was a crime. And whether Carmody and Assange are journalists or not, free-press advocates say their cases could set a dangerous precedent.
“Sources are a journalist’s lifeblood,” said James Wagstaffe, a San Francisco lawyer who specializes in First Amendment issues and teaches journalism at San Francisco State University. “When the government, as in these two cases, threatens reporters or their sources with criminal punishment for sharing confidential information, it has a clotting effect. We need the free flow of information to expose wrongdoing.”
Carmody and Assange’s cases are “instances of deeply troubling government overreach that shows a disregard for the essential role that the press, and their sources, play in a healthy democracy,” said David Snyder, executive director of the First Amendment Coalition, a media-advocacy organization based in San Rafael.
Assange’s case changed dramatically Thursday. His initial indictment, unsealed six weeks ago, charged him with conspiring with Army intelligence analyst Chelsea Manning to obtain state secrets in 2009 and 2010, by trying, unsuccessfully, to help Manning hack into government computers.
The new grand jury indictment accuses Assange of 17 counts of espionage — that, by encouraging Manning to release secret documents so that he could publish them, he “willfully caused” her to endanger national security and “unlawfully obtained” the documents.
The charges, each punishable by 10 years in prison, are the first accusations of espionage in U.S. history against someone who describes himself as a journalist. Manning was convicted of espionage and sentenced to 35 years in prison, but was released in seven years after then-President Barack Obama commuted her sentence. Obama, who had his own confrontations with the press, decided not to prosecute Assange.
“For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information,” said Ben Wizner, an American Civil Liberties Union lawyer. Wikileaks tweeted that the prosecution was “the end of national security journalism and the First Amendment.”
John Demers, head of the Defense Department’s National Security Division, told reporters when the indictment was released that it was not “the department’s policy to target (journalists) for reporting. But Assange is no journalist.”
He noted that, unlike everyday journalists, Assange didn’t edit his material but released raw files on his website — including, the indictment alleged, the names of foreign sources who “risked their safety and freedom by providing information to the United States and our allies.”
But if Assange is not a standard journalist, said Terry Francke, general counsel of the media-support group Californians Aware, he is at least a journalistic source who plays much the same role in exposing wrongdoing.
Assange was not an official custodian of the documents and did not steal them, Francke said, and those who provide such information to the media and the public must receive some legal protection “if we care about getting at the truth in powerful and secretive organizations.”
Snyder said Assange is being prosecuted for “the mere act of publishing classified information — something virtually every newspaper has done many times over the years.”
Much the same could be said of Carmody, who has spent 30 years as a freelance “stringer,” a self-employed news-gatherer who makes his living looking for scoops and selling them to media outlets.
In February, local television stations aired a confidential police report that Carmody had obtained from an undisclosed source on San Francisco Public Defender Jeff Adachi’s recent death from heart failure. A toxicology report concluded his blood contained cocaine and alcohol.
Carmody has not been charged with a crime, but police obtained a search warrant and raided his home May 10 after he refused to identify his source. San Francisco Police Chief Bill Scott said Carmody was suspected of conspiring with his source to “illegally obtain this report.”
On Friday, Scott apologized for the raid, said it had probably been illegal and admitted the police application for the search warrant had failed to adequately identify Carmody as a journalist. He said the SFPD was no longer conducting a criminal investigation of the leak but had turned it over to an outside agency.
California’s voter-approved “shield law” allows journalists to keep their sources and unpublished material confidential and also protects them from searches, even after judicial warrants, unless they acquired the information illegally.
Similarly, said Michael McConnell, a Stanford law professor and federal appeals court judge, a publisher can’t be charged under federal law for disclosing information that someone else has stolen, but can be charged if the publisher “assisted or conspired in the theft.”
So the question for both Carmody and Assange is whether it’s a crime to obtain — and in Assange’s case, solicit — confidential information from a source who may have disclosed it illegally.
Francke said past court rulings lean toward exoneration.
For example, the California Supreme Court in 1973 unanimously overturned the convictions of the Los Angeles Free Press, its editor and a reporter for receiving stolen property. That property included the names and addresses of undercover agents they had gotten from a mail clerk at the state attorney general’s office. The court said the document hadn’t been stolen because the clerk had no intention of keeping it permanently.
And in 1969, a federal appeals court dismissed a privacy and stolen-property suit against columnists Drew Pearson and Jack Anderson by a U.S. senator whose employees gave the columnists some copies of personal letters. The court said the senator should sue his employees, because the columnists hadn’t asked them to do anything illegal.
Merely encouraging someone else to disclose secrets doesn’t appear to be a crime, said Matthew Coles, a law professor at UC Hastings College of the Law in San Francisco. “You’ve got to become an active participant in illegally obtaining it” to be prosecuted, he said.
And it’s probably no coincidence, Coles said, that all this is taking place “at a moment when the president of the United States calls journalists enemies of the people.”