Charging Assange Raises Press Freedoms Fears, but Key Facts Are Murky
Posted November 16, 2018 9:03 p.m. EST
WASHINGTON — The disclosure that federal prosecutors have brought an unidentified criminal charge against Julian Assange, the WikiLeaks leader, follows years of government deliberations over the dilemma raised by competing desires to put him out of business and fears that doing so could create a precedent that would undermine press freedoms.
Many crucial details about what prosecutors have done remain unclear, including when the criminal complaint was filed, what specific charge or charges it contains, and what facts it is based upon. Depending on the answers, the Justice Department’s move could have very different implications for the traditional news media and First Amendment protections.
— Why does charging Assange raise concerns about press freedoms?
Assange is not a traditional journalist, but what he does at WikiLeaks has also been difficult to distinguish in a legally meaningful way from what traditional news organizations, like The New York Times, do every day: seek out and publish information that officials would prefer to be kept secret, including classified national security matters.
The Justice Department has never charged journalists with violating the law for doing their jobs. But in recent years, it has become far more common to charge officials with a crime for providing information to reporters. Depending on the facts, the case against Assange could set a precedent further chilling investigative journalism.
“Deeply troubling if the Trump administration, which has shown little regard for media freedom, would charge Assange for receiving from a government official and publishing classified information — exactly what journalists do all the time,” Kenneth Roth, the executive director of Human Rights Watch, wrote Friday on Twitter.
— Which actions are the basis of the prosecution?
The public does not know why Assange has been charged. But it is most likely related to one or more of four categories of activities that have drawn notoriety.
The first was WikiLeaks’ publication, in 2010 and 2011, of huge archives of secret military and diplomatic files provided to Assange by Chelsea Manning, an Army intelligence analyst. While she was prosecuted in the military court-martial system, law enforcement officials convened a parallel grand jury investigation into WikiLeaks in the Eastern District of Virginia. Notably, the court document in which prosecutors inadvertently revealed that Assange had been charged was filed in that district.
The second was the assistance that WikiLeaks provided in 2013 to Edward Snowden, the former intelligence contractor who provided archives of classified documents about National Security Agency surveillance abilities to journalists. After Snowden revealed his identity, WikiLeaks helped him get from Hong Kong to Russia, where he continues to live as a fugitive from charges in the Eastern District of Virginia.
The third was WikiLeaks’ publication during the 2016 presidential campaign of archives of Democratic Party emails that had been stolen by Russian government hackers. In July, the special counsel investigating Russia’s election interference, Robert Mueller, unsealed an indictment of 12 Russians charged in the District of Columbia.
The last was WikiLeaks’ publication, in March 2017, of “Vault 7” files detailing hacking tools used by the CIA. The suspect in that leak, Joshua Schulte, a former CIA software engineer, has been charged in the Southern District of New York, where he lives.
— Why does it matter what the basis for the charge is?
Yochai Benkler, a Harvard Law School professor who testified at Manning’s court-martial in 2013 that WikiLeaks played a watchdog journalism role, denounced any charging of Assange for his work with Manning and Snowden. Benkler described Manning and Snowden as “patriots” and “whistleblowers” and who, even if one did not agree with their actions, “are clearly trying to do something to keep the government accountable.”
But, he said, if there turns out to be evidence that Assange knowingly coordinated with a Russian intelligence agency trying to undermine democracy, “I don’t think you have the same kind of protections from prosecution.”
And in particular, Benkler pointed to WikiLeaks’s offer in 2016 of a reward for information about the killing of Seth Rich, a Democratic National Committee staff member who was the subject of a false conspiracy theory that he, not Russian hackers, was WikiLeaks’ source.
“Actively implying that Seth Rich is your source, which is essentially a conspiracy to cover up Russian hacking — that is not within the normal of what a media organization does,” Benkler said. “They changed a lot.”
— What crimes might Assange have been charged with?
Several generations of top Justice Department officials since 2010 have toyed with the idea of charging Assange as a conspirator in the crimes of his sources. Under criminal law, a defendant who has entered a criminal conspiracy can be charged based on the actions of other plotters.
If the charge relates to the Manning or Vault 7 disclosures or to the assistance to Snowden, that could mean prosecuting Assange for conspiracy to violate the Espionage Act, which bans the dissemination of secret national security information to someone not authorized to receive it.
If the charge relates instead to the Democratic emails, that could mean prosecuting Assange for joining in a conspiracy to illegally hack computers or defrauding the government in its duty to administer election law.
— What else don’t we know?
The public does not know whether, before deciding to charge him, the government obtained concrete evidence that Assange knowingly conspired with a source — such as by directing someone about what files to copy and providing technical assistance in getting data from a classified computer network, or by knowingly coordinating with Russian intelligence officials or even obeying their directions — or whether it moved forward without such facts.
During Manning’s court-martial in 2013, she took responsibility for deciding to start copying certain files and make them public, and said no one associated with WikiLeaks “pressured me into sending any more information.”
Assange has denied knowing who his source for the Democratic emails was. A grand jury indictment of 12 Russians accused of carrying out the hack-and-release operation says Russian intelligence officials discussed with WikiLeaks the timing of their release “to heighten their impact on the 2016 U.S. presidential election.” But, it said, the officials posed as a hacker calling himself Guccifer 2.0.
The indictment’s discussion of WikiLeaks, which it called “Organization 1,” was terse, however, even though it provided many details about the Russians’ internal communications on other topics. That leaves open the question whether government investigators know more than they have let on in public to date.