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In Charging Assange With 17 Espionage Act Offenses, Prosecutors Claim Power To Decide Who Is And Is Not A Journalist

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In a superseding indictment, the Justice Department charged WikiLeaks founder Julian Assange with 17 charges of violating the Espionage Act.

The Justice Department has relied upon the Espionage Act to target whistleblowers for unauthorized disclosures of information. It has treated journalists as if they were co-conspirators when prosecuting cases. But up until now, the United States government refrained from charging journalists with any crimes for publishing classified information.

“For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information. This is an extraordinary escalation of the Trump administration’s attacks on journalism, and a direct assault on the First Amendment,” declared Ben Wizner, the director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project.

Wizner added, “It establishes a dangerous precedent that can be used to target all news organizations that hold the government accountable by publishing its secrets. And it is equally dangerous for U.S. journalists who uncover the secrets of other nations. If the U.S. can prosecute a foreign publisher for violating our secrecy laws, there’s nothing preventing China, or Russia, from doing the same.”

Indeed, the indictment [PDF] invokes an executive order that applies to the classification of information. It states, “At no point was Assange a citizen of the United States nor did he hold a United States security clearance or otherwise have authorization to receive, possess, or communicate classified information.”

Prosecutors are clearly imposing a secrecy law on a non-US publisher. Although U.S. journalists without security clearances regularly publish reporting dependent on classified information from unnamed sources or obtained documents, the government criminalizes this common practice.

Assange was expelled from the Ecuador embassy in the United Kingdom on April 11. British authorities dragged him out of the embassy into a police van. He was jailed at the Belmarsh prison, and police said they arrested him because the U.S. government sought his extradition.

An indictment charging Assange with conspiracy to commit computer intrusion was made public. Much of the media coverage at the time foolishly suggested the Justice Department largely avoided press freedom issues by narrowly charging him with “hacking.” But what many in the media overlooked was how the single charge was an Espionage Act charge disguised as a charge of violating the Computer Fraud and Abuse Act (CFAA).

With the superseding indictment, all illusions are dispelled. Barry J. Pollack, defense attorney for Assange, stated, “The fig leaf that this is merely about alleged computer hacking has been removed. These unprecedented charges demonstrate the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists in their endeavor to inform the public about actions that have been taken by the U.S. government.”

The U.S. government charged Assange with: one count of conspiring to violate the Espionage Act; three counts of violating a provision of the Espionage Act that targets individuals who obtain information they’re not authorized to receive; and four counts of violating a provision of the Espionage Act in which prosecutors allege Assange “solicited” information.

Prosecutors assert Assange “aided, abetted, counseled, induced, procured, and willfully caused [Chelsea] Manning, who had lawful possession of, access to, and control over documents relating to the national defense” to “communicate, deliver, and transmit the documents” to WikiLeaks. He faces nine charges under two provisions of the Espionage Act for this alleged conduct.

The Justice Department focused on a list published to the WikiLeaks website in 2009 that was titled, “Most Wanted Leaks.”

“Assange personally and publicly promoted WikiLeaks to encourage those with access to protected information, including classified information, to provide it to WikiLeaks for public disclosure,” the indictment argues. And, “WikiLeaks’ website explicitly solicited censored, otherwise restricted, and until September 2010, ‘classified’ materials.”

It refers to a statement that appeared on the website: “WikiLeaks accepts classified, censored, or otherwise restricted material of political, diplomatic, or ethical significance.”

While the New York Times and the Washington Post may not openly advertise that they accept such materials in the same manner, WikiLeaks was behaving no differently than traditional media organizations. In fact, Manning first attempted to contact the Times and the Post before she submitted documents to WikiLeaks.

By contending Assange and WikiLeaks conspired to violate the Espionage Act by saying they would accept classified materials, the Justice Department is criminalizing any journalist or media organization, who sets up a drop box and indicates what type of information they are willing to publish online.

For example, in 2017, Buzzfeed journalist Jason Leopold tweeted, “Any brave soul who would like to see the CIA torture report publicly released, send it to our SecureDrop.” He linked to Buzzfeed’s page where sources may “share tips securely and anonymously.” If Assange committed a crime, then so did Leopold and any other journalist who ever posted a similar request.

The government additionally maintains Manning used the “Most Wanted Leaks” list as a guide for what she would disclose to WikiLeaks, which is what military prosecutors theorized during the trial against Manning in 2013.

Prosecutors accept the perspective of the CIA, which is that WikiLeaks is a “non-state hostile intelligence service.” They want the public to believe Manning was recruited by WikiLeaks to release information and that she did not disclose documents because she was concerned about war crimes and diplomatic misconduct.

Yet, as Manning’s defense attorney David Coombs said, “If we are following the government’s logic, then Pfc. Manning is the worst employee of all time for WikiLeaks.”

She was given a list of 78 items that they wanted, and “this employee managed to at best search for four of those items.”

Manning is in jail at the William G. Truesdale Adult Detention Center because she refuses to testify before a grand jury investigating WikiLeaks. She said she was solely responsible for the disclosures in 2010.

“It’s telling that the government appears to have already obtained this indictment before my contempt hearing last week,” Manning added. “This administration describes the press as the opposition party and an enemy of the people. Today, they use the law as a sword and have shown their willingness to bring the full power of the state against the very institution intended to shield us from such excesses.”

The superseding indictment against Assange indicates the government does not need Manning’s testimony to prosecute him. They are abusing the grand jury process to punish Manning with further confinement and the threat of significant financial penalties if she does not submit to their agenda.

U.S. Attorney Zachary Terwilliger argued the prosecution does not implicate issues of press freedom because it does not charge Assange for the bulk publication of hundreds of thousands of documents, even though the entire narrative of the case treats these acts as a part of a conspiracy against the United States.

Terwilliger said the U.S. government “only charged Assange for publishing a narrow set of classified documents in which Assange also allegedly published the unredacted names of innocent people who risked their safety and freedom to provide information to the United States and its allies.”

He referred to local Afghans and Iraqis, who were journalists, religious leaders, human rights advocates, and political dissidents named in the war logs that were published.

Whoever the sources were, in 2010, the Afghanistan War Logs and Iraq War Logs were published in July and October respectively. Manning was arrested on May 27, 2010. Officials and military personnel had time to take steps to protect any sources or assets from any threats to their safety. So, it is unlikely publication truly endangered them unless the U.S. government was negligent.

John Demers, assistant attorney general of the Justice Department’s National Security Division, went further and asserted Assange is not a journalist.

“Some say that Assange is a journalist, and that he should be immune from prosecution for these actions,” Demers said. “But Julian Assange is no journalist. This is made plain by the totality of his conduct as alleged in the indictment.”

“His conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the name[s] of human sources. Indeed, no responsible actor—journalist or otherwise—would purposefully publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the greatest of dangers. And this is just what the superseding indictment charges Julian Assange with doing.”

There is no evidence Assange ever assisted Manning in obtaining classified information mainly because Manning had a security clearance that granted her access to all of the information in the databases, which contained the information which she disclosed to WikiLeaks.

Such a notion that a person ceases to be a journalist when they assist a “security clearance holder” in the disclosure of information is an alarming idea that carries dire implications for press freedom.

The government should not be allowed to decide who is and is not a journalist and when a person is a journalist no longer simply because they choose to seek out information that is embarrassing to the United States. However, prosecutors believe they should have that authority and are pursuing a political case that will have a chilling effect on investigative journalism.

Kevin Gosztola

Kevin Gosztola

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