The DOJ's indictment of Julian Assange ignited a fierce debate between First Amendment advocates and national-security experts, and it's a harbinger of what lies ahead

  • The Justice Department’s indictment of WikiLeaks founder Julian Assange has sparked a fierce debate between First Amendment advocates and national-security experts.
  • Assange is accused of conspiring to hack into a classified government computer to help the former army intelligence analyst Chelsea Manning obtain sensitive documents and videos pertaining to US national security.
  • The former federal prosecutor and First Amendment expert Ken White told INSIDER he was concerned that Assange’s indictment “conflates the legal and the illegal.”
  • First Amendment advocates also say the indictment spells trouble for journalists in the US and abroad. But national-security experts disagree.
  • “It doesn’t affect the press freedom debate at all,” said one former federal prosecutor, adding that it was “probably a conscious decision by the DOJ to just bring the axe down on Assange rather than bringing an indictment that could raise questions about the threat to the fourth estate.”

Early Thursday morning, WikiLeaks founder Julian Assange was arrested by British authorities and forcibly removed from the Ecuadorian embassy in London where he had been staying. Assange’s arrest came after the US filed an extradition request with the British government.

Shortly after, the US Department of Justice (DOJ) unsealed an indictment against Assange charging him with conspiring to hack a government computer in the Pentagon that contained classified information.

Thursday’s events mark a dramatic inflection point in the ongoing debate over how the US government prosecutes individuals accused of obtaining or leaking classified information, and the broader implications that can have on First Amendment protections.

Assange was charged with one count of conspiracy to commit computer intrusion over his alleged role in helping the former US Army intelligence analyst Chelsea Manning hack a classified computer. The indictment said Manning passed the files she downloaded to WikiLeaks and that she and Assange then agreed that he would help her try to “crack the password” so she could access other classified computers to obtain more information.

The document did not contain criminal charges against Assange, WikiLeaks, or any other entity related to the publishing or dissemination of classified information.

But First Amendment advocates said Assange’s arrest still raised red flags for a number of reasons.

Read more:
Justice Department charges WikiLeaks founder Julian Assange with conspiracy to hack a government computer

‘We have no assurance that these are the only charges the government plans to bring against Mr. Assange’

Julian AssangeScreenshot/Sky News

Ken White, an attorney and former federal prosecutor who is an expert on the First Amendment, told INSIDER, “Here’s the part that spurs concerns for me. Conspiring to hack – agreeing to try to break a password to advise Manning to intrude further – is clearly not protected by the First Amendment. But the indictment conflates the legal and the illegal.”

He added: “It treats legal stuff – like concealing who leaked things – as part of the means of the conspiracy to do illegal stuff. It also treats ‘encouragement’ of intrusion as part of the offence.”

“Lots of things a journalist says about a leaker’s behaviour could be ‘encouragement,’ and I find the indictment’s gratuitous focus on that (it’s really not necessary with the details about the hacking) to be chilling,” White said.

Ben Wizner, the director of the Speech, Privacy, and Technology Project at the American Civil Liberties Union, echoed that view.

“Criminally prosecuting a publisher for the publication of truthful information would be a first in American history, and unconstitutional,” Wizner told INSIDER. “The government did not cross that Rubicon with today’s indictment, but the worst case scenario cannot yet be ruled out. We have no assurance that these are the only charges the government plans to bring against Mr. Assange.”

Assange’s lawyer, Jennifer Robinson, also characterised his arrest and indictment as an attack to press freedom. “This sets a dangerous precedent for all media organisations in Europe and around the world,” Robinson told reporters on Thursday.

But national-security experts disagreed, saying the charge against Assange has nothing to do with freedom of the press.

Read more:
US asks to extradite Julian Assange over leaked state secrets after he was arrested and forcibly removed from Ecuador’s London embassy

This is ‘the very type of action that journalists are trained not to do’

“Assange’s sole criminal charge is for conspiring to assist Manning in hacking government passwords in order to aid her in gaining additional access to more classified documents to which she otherwise would not have access,” Bradley Moss, a national-security lawyer based in Washington, DC, told INSIDER.

“That is the very type of action that journalists are trained not to do, as it goes beyond what is protected by the First Amendment’s press protections and implicates separate criminal restrictions,” he said.

Jeffrey Cramer, a longtime former federal prosecutor who spent 12 years at the Justice Department, told INSIDER it was likely prosecutors leveled a narrow charge against the WikiLeaks founder as a mechanism to secure his extradition to the US.

“It doesn’t affect the press freedom debate at all,” Cramer said, adding that it was “probably a conscious decision by the DOJ to just bring the axe down on Assange rather than bringing an indictment that could raise questions about the threat to the fourth estate.”

If a UK judge agrees to extradite Assange to the US, however, Cramer noted that prosecutors could bring additional charges in order to get more evidence admitted in a trial against him.

Read more:
Attorney General William Barr says he believes the FBI was ‘spying’ on Trump’s 2016 campaign

How Assange could bring the spotlight back to the Russia probe

Robert muellerAnn Heisenfelt/Getty ImagesWASHINGTON, DC – JANUARY 20: Director of the Federal Bureau of Investigation Robert Mueller testifies at a Senate Judiciary Hearing focusing on the attempted bombing incident on Northwest Flight 253 January 20, 2009 in Washington, DC. The committee’s goal is to improve the effectiveness of anti-terrorism tools and inter-agency communication in an attempt to increase airline safety after the attempted Christmas bombing of the flight.

Assange and WikiLeaks are central to the special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 US election.

In an indictment charging 12 Russian intelligence officers for hacking into the Democratic National Committee and disseminating stolen emails, Mueller’s office mentioned WikiLeaks – though not by name – as the Russians’ conduit to release hacked documents via the hacker known as Guccifer 2.0, who is believed to be a front for Russian military intelligence.

WikiLeaks touts itself as an independent organisation, but US intelligence believes the group to be a propaganda tool for the Kremlin. While still serving as CIA director, Secretary of State Mike Pompeo characterised WikiLeaks as a “nonstate hostile intelligence service.”

The indictment against Assange, which was obtained by federal prosecutors in Alexandria, Virginia, in March 2018, does not have any connection to WikiLeaks’ role in the 2016 election.

But Philip Lacovara, a former counsel for the Watergate prosecution team, told Politico the amount of pressure the US exerted on their British counterparts shows that the “DOJ evidently retains considerable interest in the information that [Assange] can supply. He knows where the hacked DNC emails came from, and he knows when and how the Trump campaign learned about this treasure trove of political dirt.”

Lacovara added that Assange could also know “whether the Trump campaign coordinated the timing of the leaks for political advantage” and if anyone on the campaign “actively solicited additional hacking.”

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