May 23, 2019: New 17-count indictment accuses Assange of violating the Espionage Act
Federal prosecutors brought a new 17-count indictment against WikiLeaks founder Julian Assange.
Assange is accused of violating the Espionage Act by helping former U.S. Army intelligence officer Chelsea Manning hack into a government database, and then disclosing the stolen information on WikiLeaks.
The new charges significantly expands on Assange’s earlier charge of “conspiracy to commit computer intrusion.” The scope of the indictment raises concerns among legal scholars about First Amendment protections for publishers of classified information.
While Assange is not a traditional journalist, he nonetheless engages in the types of activities that reporters routinely do, such as getting documents and informations from sources and publishing it. First Amendment lawyer Floyd Abrams, when asked earlier by The Washington Post about Assange’s potential prosecution under the Espionage Act, responded, “If it violated the Espionage Act for WikiLeaks to gather information from sources not permitted to release it and then publish it, then what American newspaper could be free from risk?”
Legal experts contend that the charges facing Assange are likely to be challenged on First Amendment grounds. “The Espionage Act doesn’t make any distinction between journalists and nonjournalists,” Matthew Miller, a former Justice Department official, told The New York Times. “If you can charge Julian Assange under the law with publishing classified information, there is nothing under the law that prevents the Justice Department from charging a journalist.”
The New York Times The Washington Post Assange Superseding Indictment
April 22, 2019: Manning Continues To Refuse To Testify Against WikiLeaks and Assange
The US Court of Appeals for the Fourth Circuit denied Chelsea Manning’s motion for release, and ordered her to remain jailed until she complies with the subpoena.
Manning, a former U.S. Army intelligence officer, has been in jail since March 8 for refusing to testify before a grand jury about WikiLeaks.
BuzzFeed News contends that since Manning will remain in jail for not cooperating with the government, it is likely that federal prosecutors are still investigating Assange and could bring additional charges. The US has until mid-June to file formal extradition papers against Assange, and the Justice Department has until then to file additional charges.
BuzzFeed News Manning Order Fourth Circuit
April 11, 2019: Julian Assange Indicted by Justice Department In Connection With Government Network Hack
WikiLeaks founder Julian Assange was indicted by the federal government for “conspiracy to commit computer intrusion” for allegedly helping former U.S. Army intelligence officer Chelsea Manning hack into a government database.
The indictment alleges that in March of 2010, Assange agreed to assist Manning in “cracking a password stored on a United States Department of Defense computers connected to the Secret Internet Protocol, a United States government network used for classified documents and communications.”
While Assange was not charged with publishing government secrets, some critics are concerned that the government might expand the charges once Assange is on U.S. soil. Organization such as the Committee to Protect Journalists say that the charges are “troubling” because there’s a chance the indictment and its accusations about password cracking are “a pretext on the part of the U.S. government to punish Assange for the publication of classified information.”
The Electronic Freedom Forum also weighed in on free press concerns: “This case seems to be a clear attempt to punish Assange for publishing information that the government did not want published,” adding, “We think that neither journalists nor the rest of us should be breathing a sigh of relief.”
Julian Assange Indictment
April 20, 2017: Wikileaks Among Others Sued by Democratic National Committee For Russia Hack
The Democratic National Committee filed a lawsuit against against Wikileaks, Russia, President Trump’s campaign, a slew of other officials and even the hacker, Gucifer, stating, “No one is above the law.” The complaint details the build up of attacks “on American soil” in a “brazen attack on American Democracy.” Wikileaks is singled out for its publication of John Podesta’s (then chair of Hillary Clinton’s presidential campaign) emails leading up to the election. But will suing Wikileaks hurt news organizations?
October 25, 2017: Assange Confirms Wikileaks was Approached by Trump Funded Dating Mining Firm
Cambridge Analytica went to WikiLeaks to look for Hillary Clinton’s missing emails as fodder against her during the 2016 presidential campaign. Assange demurred. Now President Trump’s ties with Cambridge Analytica are being questioned by the House intelligence committee as part of its investigation into the President’s potential ties with Russia.
July 21, 2017: How Julian Assange Messes With the World
Raffi Khatchadourian profiles Julian Assange years after he has turned from hero to pariah. What will WikiLeaks do next?
May 19, 2017: Cleared of Swedish Rape Charges, Will Julian Assange Now Be Prosecuted by United States in WikiLeaks Case?
Swedish prosecutors dropped rape charges against Wikileaks founder Julian Assange, ending a five-year battle, but Assange is not clear from possible United States prosecution for publishing classified information.
In a recent interview with the Associated Press, Trump was asked if he supported Assange’s actions, and the president demurred saying, “No, I don’t support or unsupport. It was just information. They shouldn’t have allowed it to get out.” When asked if he believes it is, or should be, a priority for the U.S. to arrest Assange, Trump said, “I am not involved in that decision, but if Jeff Sessions wants to do it, it’s OK with me. I didn’t know about that decision, but if they want to do it, it’s OK with me.”
But, as reported by the New York Times, the situation has grown more complex in the wake of the firing of FBI Director James Comey, “it may no longer be entirely up to Mr. Trump’s political appointees whether to go after Mr. Assange. Responsibility for WikiLeaks could be among the matters transferred to Robert S. Mueller III, the former F.B.I. director who was appointed this week by Deputy Attorney General Rod J. Rosenstein as special counsel to oversee the investigation into Russia’s efforts to interfere with the 2016 election.”
New York Times
April 20, 2017: DOJ Considering Criminal Charges Against WikiLeaks
As reported by The Washington Post, the Justice Department is deciding whether to bring criminal charges against WikiLeaks and its founder Julian Assange. It is unclear if the department is examining the original 2010 leak, the publication of DNC emails during the 2016 presidential campaign, or the recent leak about the CIA’s cyber monitoring. The Obama administration considered bringing a suit under the Espionage Act, but ultimately declined to charge Assange, although the case was never formally closed. Assange’s lawyers maintain that the DOJ can’t prosecute WikiLeaks because it is a publisher like any other media organization.
April 13, 2017: CIA Director Calls WikiLeaks “Hostile Intelligence Service”
In a speech, CIA Director Mike Pompeo branded WikiLeaks a “non state hostile intelligence service” and denied that Julian Assange had First Amendment protection.
New York Times
March 9, 2017: Pence Promises to Pursue WikiLeaks If Information Is Valid
In a television interview with Fox News, Vice President Mike Pence said the administration would “use the full force of law” against WikiLeaks if the recently leaked information on CIA cyber tools proved legitimate.
March 7, 2017: Newest Wikileaks Deluge Hits
WikiLeaks documents reveal how government agencies bypass encrypted programs.
The Obama administration considered bringing charges against Assange for his publication of classified documents, but ultimately declined to do so. As reported by the Washington Post in November 2013, the Justice Department concluded it could not charge Assange without also implicating other U.S. news organizations. Speaking with anonymous officials, the Post reported:
“But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis…. Justice officials said they looked hard at Assange but realized that they have what they described as a ‘New York Times problem.’ If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.”
The Obama administration was also criticized for its record of prosecuting under the Espionage Act more than any other administration. A report from 2013 notes that, under Obama, “Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press—compared with a total of three such prosecutions in all previous U.S. administrations.”
Additionally, “Reporters’ phone logs and e-mails were secretly subpoenaed and seized by the Justice Department in two of the investigations, and a Fox News reporter was accused in an affidavit for one of those subpoenas of being ‘an aider, abettor and/or conspirator’ of an indicted leak defendant, exposing him to possible prosecution for doing his job as a journalist. In another leak case, a New York Times reporter has been ordered to testify against a defendant or go to jail.”
May 30, 2019: Special Analysis of the Superseding Indictment of Julian Assange
Game Rottman, writing for the Reporters Committee for Freedom of the Press, analyzes the superseding indictment against Julian Assange.
Rottman looks at the eight of the most frequently asked questions about the indictment, and offers commentary on some of its specific elements.
Rottman notes that this is the first time the Justice Department has obtained an indictment from a grand jury with Espionage Act charges based exclusively on the act of publication.
According to the Reporters Committee, there have only been four other instances in which the Justice Department even considered bring “pure publication” charges against the media. None of the four matters were ever charged.
Whether Assange is considered a journalist or not is irrelevant, Rottman asserts, as the First Amendment covers everyone.
He also delves into the question of whether the First Amendment applies to the publication of government secrets. The 2001 Supreme Court decision in Bartnicki v. Vopper, which ruled that the First Amendment protected a radio station’s broadcasting of an unlawfully recorded audio conversation, as long as the host wasn’t involved in the illegal interception, might be applicable to Assange’s case. However, Rottman says that if the government can prove that the WikiLeaks founder actively encouraged or aided Manning in stealing government documents, First Amendment protections would vanish.
Reporters Committee for Freedom of the Press
May 28, 2019: The Assange Indictment Threatens to Criminalize Journalism
Writing for The Washington Post, Glenn Greenwald, who led the NSA reporting for the Guardian that won a Pulitzer Prize, discusses the dangers the charges against Assange pose to journalistic freedom.
Greenwald is alarmed over the Trump administration’s willingness to criminalize what is essentially normal, journalistic practice: the collection and publication of information in the public’s interest.
“Many of the most consequential and celebrated press revelations of the past several decades — from the Pentagon Papers to the Snowden archive(which I worked on with the Guardian) to the disclosure of illegal War on Terror programs such as warrantless domestic NSA spying and CIA black sites — have relied upon the same methods that the Assange indictment seeks to criminalize: namely, working with sources to transmit illegally obtained documents for publication,” he writes.
Assange’s critic’s, including the Department of Justice, brush off these concerns, saying that Assange isn’t a “real journalist.” Greenwald counters this argument on several fronts. For one, unlike a doctor or a lawyer, there isn’t a professional licensure requirement to be a journalist. In fact, anyone who informs the public about newsworthy matters is considered to be a journalist.
Greenwald further buttresses his argument by citing Chief Justice Warren Burger’s opinion in the 1977 Supreme Court decision documenting the “limitless scope” of the freedom of the press. “In short, the First Amendment does not ‘belong’ to any definable category of persons or entities: It belongs to all who exercise its freedoms.”
If the criminal case against Assange succeeds, Greenwald warns, it will provide the “perfect blueprint” for criminalizing journalism in the U.S.
The Washington Post
May 23, 2019: By indicting Assange under the Espionage Act, the government is stepping on the First Amendment
Julian Borger, writing for The Guardian, says that the Trump administration has crossed a line no other administration has done before: challenging the First Amendment in defense of government secrets.
The Obama administration had once debated whether to charge Assange under the Act, but ultimately decided that such a move could imperil journalists’ protections under the First Amendment.
Matthew Miller, who was a justice department spokesman at the time, recalled: “The justice department in the Obama administration thought it would be very dangerous to charge Assange with publication, as the Espionage Act doesn’t make any distinction between journalists and non-journalists.
“The second reason – which we never got to – was that no one was sure if it would withstand constitutional scrutiny. It probably wouldn’t,” Miller said. “That said, the supreme court has changed significantly since then, and maybe the DoJ [department of justice] has made that calculation.”
April 23, 2019: Ellsberg Expresses Outrage Over Assange Arrest
Daniel Ellsberg, a consultant who leaked the Pentagon Papers to The New York Times, weighed in on the Assange arrest.
In an interview with The Progressive, Ellsberg expressed outrage over Assange’s arrest, which he views as an attempt to restrict the freedom of the press.
“The First Amendment is a pillar of our democracy and this is an assault on it,” he stated. “If freedom of speech is violated to this extent, our republic is in danger. Unauthorized disclosures are the lifeblood of the republic.”
Ellsberg is concerned that the Justice Department may be criminalizing journalistic activities such as encouraging a source to turn over documents. “That is criminalizing journalism. I can’t count the number of times that I have been asked for documents by journalists or for more documents. …This is the practice of journalism.”
Ellsberg also lauds the actions of Chelsea Manning, the former Army intelligence officer who leaked classified documents to WikiLeaks. “That took great moral courage on her part, for which she paid ultimately with seven and a half years in prison, ten and a half months in solitary confinement,” he said.
May 9, 2017: Concern among media orgs over possible WikiLeaks charges
Writing for The Hill, the Washington director of PEN America Gabe Rottman expressed concern over possible criminal charges against WikiLeaks and the implications for other media outlets. During his May 3 testimony in front of the Senate Judiciary Committee on FBI oversight, now-former FBI Director James Comey indicated that WikiLeaks was still a priority of FBI investigations and suggested that WikiLeaks could be prosecuted under the Espionage Act. Comey also differentiated WikiLeaks from other news outlets, stating, “To my mind it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly, just pushing out information about sources and methods without regard to interests.” Comey did reiterate that, “newsgathering and legitimate news reporting” would not be investigated or prosecuted. But Rottman argues that prosecuting WikiLeaks, “would create a troubling precedent. While it might be easy to label WikiLeaks as ‘intelligence porn’ or a ‘non-state hostile’ spying agency, actually distinguishing between WikiLeaks and a ‘mainstream’ outlet will be both exceedingly difficult in practice, and will invite retaliatory and inconsistent enforcement to chill critics of the government. Put another way, this really has nothing to do with WikiLeaks. It’s about the fundamental truth that no journalist has ever been prosecuted, nor should they be, for reporting truthful information, irrespective of the source or secrecy. That’s what reporters do every day.”
April 26, 2017: Assange May Not Get First Amendment Cover, Lawyers Say
First published at the Just Security blog, University of Texas law professor Steve Vladeck and New York University law professor Ryan Goodman discuss the possible implications of a DOJ charge against Assange, and whether he would have First Amendment protection.
Vladeck wrote: “Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause…The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act. To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied what’s known as ‘Pickering balancing’ to assess when the public interest in disclosure outweighs the government’s interest in preserving confidentiality), but even the Bartnicki decision–in which the Court ruled that the First Amendment protects a radio station’s broadcasting of an unlawfully recorded audio conversation–turned to a large degree on the parties’ stipulation that the radio station itself had acquired the recording ‘lawfully.’ Because of the Espionage Act, there’s no way for a third party ‘lawfully’ to acquire classified national security information that they are unauthorized to possess. So I’m skeptical that Assange (or the New York Times, for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).”
March 10, 2017: Other Legal Experts Say Assange Might Have First Amendment Claim
Judge Andrew Napolitano, a Fox News legal analyst, said that Assange might have a claim to First Amendment protection. “If a stolen document containing state secrets gets into the hands of the press, which is loosely defined as any entity in the business of revealing things, and it is a matter of public interest then it can be exposed with impunity,” Napolitano said. “Assange is clearly a media entity, albeit an unorthodox one… so the thief, the person who hands it to WikiLeaks, is the criminal. Not WikiLeaks.”
In 2013, NBC News held a roundtable of legal scholars to discuss, “If the United States seeks to put on trial WikiLeaks and its founder, Julian Assange, what are the implications for freedom of speech, for protection of government secrets and for news organizations on the Internet?” Defense lawyer, Abbe D. Lowell, former deputy assistant secretary for policy and acting assistant secretary for international affairs in the Department of Homeland Security under President George W. Bush, Paul Rosenzweig, and American University law professor, Stephen Vladeck discussed Assange’s role as a journalist and protections afforded him.