Creative Commons-Licensed Illustration by Donkey Hotey

(updates 1 & 2 below)

For the second time in the past weeks, anonymous United States government officials have spoken to a reporter with the Washington Post about a possible case against WikiLeaks editor-in-chief Julian Assange.

“The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists,” Sari Horowitz reported.

The anonymous officials “stressed that a formal decision” has not been made. A grand jury in Alexandria, Virginia, which has been investigating WikiLeaks, remains empaneled. Yet, “There is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.”

The problem, the officials said, is something they call the “New York Times problem.” As Horowitz elaborated, “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 comments from anonymous government officials come about one week after a story where anonymous US officials (possibly the same sources for this story) informed the Post that there was no “sealed indictment” in Assange’s case.

A remark on the case from a “law enforcement official” was actually changed by the newspaper, although the Post did not bother to note the change at the bottom of the story:

As the screen shots show, the statement, “He might be in six months now,” was replaced with, “The investigation is ongoing.” The “law enforcement official” was either being flippant or inadvertently revealed that the Justice Department is still working on its investigation and could reach an indictment in six months.

The remarks in both stories failed to reassure Assange and staffers or volunteers with WikiLeaks, who have been under investigation, including having their personal user data subpoenaed from Twitter, and other social media/email providers.

On Twitter, WikiLeaks explained its skepticism stemmed from the fact that the story was dependent upon “anonymous officials of unknown proximity to the case with unknown motivations.” The media organization suggested “all other datapoints point the other way: prosecution behavior in [Chelsea] Manning’s case, other leaks, [and] expenditure.”

The media organization called attention to the fact that attacks have been made by Justice Department, the White House, State Department and Pentagon on how they sourced and processed the documents that were published. They had not attacked WikiLeaks for publishing. So, while it was true that the New York Times would be open to prosecution if WikiLeaks was criminalized for publishing documents, the Justice Department had been focused on how the media organization managed to obtain the documents.

A grand jury subpoena from the investigation shows the breadth of the investigation has included whether Assange and others affiliated with the media organization violated espionage, fraud against the government, computer fraud or theft/conversion of public property statutes. Only the espionage statute—Espionage Act of 1917—explicitly targets publication of information. The other statutes would criminalize conduct engaged in during the previous stages of the journalism process.

WikiLeaks spokesperson Kristinn Hrafnsson said in a statement, “Short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks,” the media organization will remain skeptical.

Absent from the remarks by anonymous US government officials, who are reportedly close to the investigation, is an appreciation of the significance of what they have been doing. Even the Post’s stories fail to communicate the gravity of a government investigation into all individuals connected to a 21st Century media organization like WikiLeaks. (Of course, the Post’s Editorial Board has determined that WikiLeaks “differs from journalism,” absolving the outlet of any responsibility to be concerned.)

The entire investigation was spurred by WikiLeaks’ publication of information, which the anonymous officials are admitting they cannot seem to find a way to criminalize without having to also admit the Times should be punished for its journalism too. Therefore, everything that has occurred since the grand jury was empaneled in September 2010 has been a classic politically motivated fishing expedition.

Indictments and charges technically do not have to be produced to be effective. The government’s investigation created a cloud of fear over everyone connected. The possibility that the US government would target the organization for committing crimes enabled companies like PayPal, Visa and MasterCard to enact a blockade that cut off donations to WikiLeaks.

Individuals like Tor software developer Jacob Appelbaum have been stopped multiple times by Homeland Security agents while traveling because of his ties to Assange and WikiLeaks. The US government’s surveillance and harassment of these people has convinced various others to distance themselves from the organization.

Historically, President Richard Nixon was interested in prosecuting the New York Times and its reporter, Neil Sheehan, after it published the Pentagon Papers from Daniel Ellsberg. Former Times legal counsel James Goodale, who argued the Pentagon Papers case, worked to defend Sheehan from prosecution and was keenly aware of how Nixon was seeking to stretch current laws to punish someone. They subpoenaed individuals with the leftwing antiwar organization, Institute for Policy Studies (IPS), which had been given chapters of the Pentagon Papers from Ellsberg.

A Boston grand jury subpoenaed individuals who worked or were connected to IPS: Ralph Stavins, Richard Falk, Leonard Rodberg, and Harvard professor Samuel Popkin. Also subpoenaed were MIT professor Noam Chomsky, former Times reporter David Halberstam, and L. Dun Gifford, a Boston lawyer.

The grand jury’s interest, just like in the investigation into WikiLeaks, was how the material was obtained. But the grand jury ultimately disbanded because, according to the government, Ellsberg’s trial was about to begin.

Goodale has said Obama is trying to succeed where Nixon failed by making the “news gathering entities in this country and reporters criminally liable for what they do when they gather the news. This would mean that the government will define the terms in which reporters and publishers can gather and publish the news, and we will lose that ability to do that ourselves or publishers will lose the ability to do that under the First Amendment.”

Furthermore, the Justice Department cannot put together cases against bank executives that committed crimes which brought about an economic collapse, but it has been willing to spend years of resources trying to concoct a political case against Assange, WikiLeaks staffers and/or affiliated individuals?

To conclude, these remarks from anonymous officials may affirm the view of those who believe Assange is simply paranoid and should take a step out of the Ecuador embassy, where he has been living for more than a year after being granted asylum. It may lead people to believe he is really hiding from “sexual assault charges” (even though he has not been formally charged) and should just let himself be arrested and go to Sweden since there is no way he will be extradited from Sweden to the United States. But Assange is not about to disregard the advice of his lawyers.

His lawyers are probably still telling him that the grand jury remains empaneled. So long as the government continues to keep it going and expend any amount of resources that could possibly be used to construct a case against him, he should remain in the Ecuador embassy and not risk traveling to a country where he might be taken into custody and eventually handed over to the US.

The likelihood of this scenario may be extremely minimal, but it could be entirely improbable if the grand jury disbanded today. That it has not disbanded suggests the Obama administration insists on maintaining a low-hanging cloud, which has helped isolate the media organization and convinced many to tread carefully when working with WikiLeaks.


WikiLeaks releases a statement in response.

Update 2 – 8:20 AM EST (Wed.)

I’ve been notified that a citation was added to the story in which a law enforcement official’s remark was changed.

Above the headline of the Washington Post’s story, this now appears:

This story was updated to include a quotation that was substituted for one that appeared in the original version online. The quotation, attributed to a law enforcement official, was replaced with another from the same interview because the original quotation created the erroneous impression that the official was saying Julian Assange would not be arrested if he came to the United States. The official said Assange would not be arrested on U.S. charges. He did not address any possible extradition request from another country.

There is no timestamp for the citation, but it would seem this was added to clarify the change in the quote some time in the past twenty-four hours.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."