On 23rd February 2020 Kevin Gosztola interviews James Goodale
James Goodale is one of the more prominent First Amendment lawyers in the United States. He represented the New York Times in the Pentagon Papers case. In 2013, Goodale wrote the book, Fighting For The Press, which outlined the threat to press freedom if President Barack Obama’s administration prosecuted WikiLeaks founder Julian Assange.
No First Amendment attorney has been as outspoken on what will happen to journalism if the U.S. government successfully extradites Assange and brings him to trial in the U.S. for violating the Espionage Act.
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GOODALE: I have dreaded the beginning of the extradition hearing because I do not want Assange back in this country to be tried under the Espionage Act. So that’s my general point of view. I do not think that he should be tried under the Espionage Act because the act was designed for espionage and not for reporting the truth, which is what Assange did. And I don’t want the law stretched any further than it has already been stretched.
With respect to the precise nature of the hearing, while the principal issue in the extradition hearing will be whether or not the offense complained of is a political offense and therefore does not hit the middle of the target with respect to the First Amendment, it’s close enough. So I am following that issue very carefully to see how the court will deal with it.
Seems to be, generally speaking, the actions that Assange took were against the interests of the United States, against its political interests, and therefore he is being sent back for a political trial. If, in fact, I’m correct in that and the judge agrees with me, then he can’t be extradited. So that’s quite important.
A second issue that I’m following is the CIA’s tapping of his phone. It is quite clear that the CIA made a deal with a Spanish security company [inaudible]…to have that Spanish security company videotape and audio tape everything that went on…including importantly Assange’s conversations with his lawyers.
If you have a conversation with your lawyer and it’s being taped, that is really fundamentally bad.
More to the point, in terms of the history of the Espionage Act as applied to these proceedings in the United States, Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times, was tried under the Espionage Act back in 1973. That prosecution was dismissed because it came to the attention of the court that the “plumbers,” employees who were in the White House under President Richard Nixon’s tutelage, broke into the office of Ellsberg’s psychiatrist.
That is very much the same as breaking into the conversations, and as a consequence, Ellsberg’s trial was dismissed. By analogy, therefore, Assange should not come back to this country because his rights have been completely fouled up.
Third thing I’m following is that the government is taking this very strange position that Assange has no First Amendment rights whatsoever. That position is based on the idea that Assange is not an American citizen and therefore he doesn’t get First Amendment protections. The government has said they’re going to put that into the court. I will be listening carefully as to what exactly that position is.
GOSZTOLA: The case that they tried to bring against Julian Assange and WikiLeaks around the issue of hacked material but we saw a court defend the right of publishing hacked material in the United States and it seems like the political establishment just can’t accept that that is a part of our law.
GOODALE: Well, that’s another good point. That case was decided by my former First Amendment partner, Judge John Koetl.
He decided the First Amendment applies to Julian Assange in this country, and that Julian Assange’s activities with respect to the release of information concerning the DNC was protected by the First Amendment. That suit was brought by the DNC, and Judge Koetl went out of his way to say that the activities of Assange in releasing that information were fully protected by the First Amendment.
If the Justice Department is going to succeed in persuading the world that the First Amendment doesn’t apply here, they’re going to have to overrule Judge Koetl’s decision.
Read whole article in Shadowproof
And a followup article in Shadowproof
John Koetl, a federal judge, dismissed the lawsuit in July 2019. Whether or not WikiLeaks knew the materials were obtained illegally, they were protected by the First Amendment.