April 11, 2019 (3:02 PM): This article has been updated to include a statement from Chelsea Manning’s attorneys.
The United States Justice Department dramatically escalated its political prosecution of WikiLeaks founder Julian Assange. Their efforts are aimed at criminalizing a journalist—and more broadly, a media organization—for allegedly aiding and abetting the disclosure of classified information and publishing that information on the internet.
Assange was expelled from the Ecuador embassy in the United Kingdom and arrested by British police on April 11. The expulsion and arrest was linked to an indictment and extradition request that was filed many months ago by the United States government.
He was granted political asylum by Ecuador in 2012. His asylum was terminated, and the Ecuador government allowed the British police to enter the embassy to apprehend Assange and load him into a police van.
When Assange was hauled out of the embassy, video captured him urging the UK to resist and fight President Donald Trump’s administration.
The Justice Department’s grand jury investigation into WikiLeaks charged Assange with “conspiracy to commit computer intrusion.” It falls under the Computer Fraud and Abuse Act (CFAA) and a general part of the criminal code that can be used against individuals who conspire to defraud the United States.
While on the surface it appears the Justice Department attempted to circumvent many of the First Amendment issues, which discouraged President Barack Obama’s administration from moving forward with an indictment of Assange, the language in the indictment—dated March 6, 2018—is very similar to what prosecutors typically include in indictments against individuals charged with violating the Espionage Act.
The indictment criminalizes Assange as an “aider” and “abettor” of “espionage” for publishing unauthorized disclosures of classified information on the WikiLeaks website.
“The WikiLeaks website publicly solicited submissions of classified, censored, and other restricted information,” the indictment states. “Assange, who did not possess a security clearance or need to know, was not authorized to receive classified information of the United States.”
Reporters or editors for media organizations publish stories based upon on leaks of classified information all the time and typically do not have security clearances.
If a precedent were set where journalists had to possess a security clearance, it would create a threat for any reporter relying upon such information to expose abuses of power or corruption committed by the U.S. government, including but not limited to security agencies.
More significantly, Assange holds citizenship in Australia and was also granted citizenship by Ecuador a little over one year ago. Invoking secrecy regulations in the U.S. as part of an indictment against someone who is not an American citizen carries implications for world press freedom.
When referring to an alleged “password-cracking agreement” between Assange and Manning, the indictment contends, “Assange knew that Manning was providing WikiLeaks with classified records containing national defense information of the United States. Assange was knowingly receiving such classified records from Manning for the purpose of disclosing them on the WikiLeaks website.”
Here is the part of the Espionage Act that Manning was charged with violating:
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or [emphasis added]
Part of the alleged computer crime contains language alleging Assange violated the CFAA. Yet, the Justice Department mostly shoehorns language from the Espionage Act into the alleged computer violation:
(a) to knowingly access a computer, without authorization and exceeding authorized access, to obtain information that has been determined by the United States government pursuant to an executive order and statute to require protection against unauthorized disclosure for reasons of national defense and foreign relations, namely, documents relating to the national defense classified up to the “secret” level, with reason to believe that such information so obtained could be used to the injury of the United States and the advantage of any foreign nation, and to willfully communicate, deliver, transmit, and cause to be communicated, delivered, or transmitted, to any person not entitled to receive it, and willfully retain the same and fail to deliver it to the officer or employee entitled to receive it. [emphasis added]
To the Justice Department, part of the conspiracy involves publishing information that could “damage” the United States. They believe when Assange received the information he should have destroyed the documents or tried to “return” them to the U.S. government. It is but another alarming aspect of this indictment
“It was part of the conspiracy that Assange encouraged Manning to provide information and records from departments and agencies of the United States,” according to the indictment. “It was part of the conspiracy that Assange and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records containing information related to the national defense of the United States.”
In this section, prosecutors further allege Assange “aided” and “abetted” “espionage” as a co-conspirator by specifically criminalizing the act of using a drop box.
Several journalists and media organizations use drop boxes to accept documents from sources. One well-known setup is called SecureDrop. It would appear the Justice Department would like to establish a precedent that discourages media organizations from using this practice when engaging in journalism.
The second part of the alleged computer crime explicitly notes the indictment is pulling from two sections of the Espionage Act—793(c) and 793(e)—even though Assange was not charged with violating the Espionage Act.
Additionally, there is the timeline of events that appears in the indictment. On March 8, 2010, prosecutors allege Assange “agreed” to assist in cracking a password so she could anonymously access Defense Department computer connected to the Secret Internet Protocol Network that held the documents.
Manning had a security clearance because she was an all-source military intelligence analyst in Baghdad. She did not need Assange to help her obtain access. What the prosecutors are claiming is her interest in shielding her identity, and the fact that Assange allegedly was willing to help her protect her identity, opened him up to a charge of conspiracy.
The indictment highlights chats that allegedly occurred between Assange and Manning over the Jabber online chat service. What the indictment does not state is that the account Manning corresponded with was “Nathaniel Frank.” The U.S. government believes Assange used this account, but they will have to prove it in order to mount a successful prosecution.
During Manning’s Article 32 hearing in December 2011, before her case proceeded to a court-martial, military prosecutors presented evidence they said would show Assange “attempted to devise a way to browse SIPRnet anonymously.”
Journalist Alexa O’Brien transcribed much of the proceedings. From her “unofficial” transcript, this is when a military prosecutor described the alleged “password-cracking agreement”:
On the screen your Honor is an excerpt of a chat log—again these are the chat logs recovered from PFC Manning’s personal computer—and the evidence will show Pfc. Manning asked, ‘Any good at LM hash cracking?’ LM, the evidence will show, stands for Land Management.
Pressassociation responds, ‘We have rainbow tables for LM.’ Your Honor the evidence will show that an LM hash is essentially the way that a Windows computer stores passwords on that computer.
Manning’s attorneys released the following statement on Assange’s indictment:
“The indictment against Julian Assange unsealed today was obtained a year to the day before Chelsea appeared before the grand jury and refused to give testimony. The fact that this indictment has existed for over a year underscores what Chelsea’s legal team and Chelsea herself have been saying since she was first issued a subpoena to appear in front of a Federal Grand Jury in the Eastern District of Virginia — that compelling Chelsea to testify would have been duplicative of evidence already in the possession of the grand jury, and was not needed in order for US Attorneys to obtain an indictment of Mr. Assange. Grand Juries may not be used for the sole and dominant purpose of preparing for trial, including questioning potential trial witnesses. Since her testimony can no longer contribute to a grand jury investigation, Chelsea’s ongoing detention can no longer be seriously alleged to constitute an attempt to coerce her testimony. As continued detention would be purely punitive, we demand Chelsea be released.”
All of this supposed evidence was available to President Barack Obama’s Justice Department. It begs the question: why didn’t the Obama Justice Department indict Assange?
The answer may involve the fact that the government still did not have enough evidence beyond a chat log to substantiate the existence of an “agreement” to crack a password. After all, Manning is in jail because she refused to testify before the grand jury and was held in civil contempt. Prosecutors may feel they need her testimony on the “password-cracking agreement.”
Or it may be that the Obama Justice Department thought even this charge would raise issues of press freedom that were intertwined with protections, which individuals are supposed to enjoy under the First Amendment. It still targets aspects of the news gathering process itself despite the fact that the Justice Department can claim they are specifically going after a supposed agreement to crack a password.
Regardless, what unfolded is exactly what Center for Constitutional Rights director Michael Ratner, attorneys for WikiLeaks, press freedom advocates, and a small group of mostly dissident journalists and activists warned would happen to Assange. It is why he was granted political asylum. Yet, they were universally treated as delusional for promoting the conspiracy that the U.S. and U.K governments would work together to use a sexual assault allegation in Sweden as a pretext to extradite Assange to the U.S. to prosecute him for publishing documents.
It was evident for well over a month that Assange’s arrest could happen very soon, especially when Manning chose to publicly fight her subpoena. The editorial boards of major news organizations, such as the New York Times and Washington Post, sat in silence. They were apparently too concerned anything they said might affect their access to the halls of power. They have never really considered Assange to be a journalist, and believe Manning is a national security leaker, who deserved to be punished.
Now, there are many more details that are known. The “Which side are you on?” moment has come. The world will see who stands up for freedom of the press and who stands with President Donald Trump’s administration in their dangerous assertion of U.S. power.