The Indictment of Julian Assange Is a Threat to Journalism
Imagine that, in the summer of 2014, the Justice Department had indicted Julian Assange, the founder of WikiLeaks, charging that, in 2010, he engaged in a criminal conspiracy with Chelsea Manning, the former U.S. Army intelligence analyst, to “facilitate Manning’s acquisition and transmission of classified information related to the national defense of the United States so that WikiLeaks could publicly disseminate the information on its website.”
How do you think the editorial page of the New York Times would have reacted? (In July, 2010, the Times joined with the Guardian and Der Spiegel to publish tens of thousands of the documents that Manning provided to WikiLeaks.) What about the editorial page of the Washington Post, which published extensive stories about the leaked material? This material included video footage of a U.S. Army apache gunship carrying out a 2007 attack in Baghdad that killed a dozen people, including two Iraqi civilians who were working for Reuters.
We can’t know for sure, but it seems unlikely that the Times would have published an editorial that said, “The administration has begun well by charging Mr. Assange with an indisputable crime.” It also seems unlikely that the Post would have published an editorial that said, “Mr. Assange’s case could conclude as a victory for the rule of law, not the defeat for civil liberties of which his defenders mistakenly warn.” Both of these statements were contained in editorials that the Times and the Post published, respectively, on Thursday, after Assange was arrested, in London, and Donald Trump’s Justice Department unsealed a federal indictment that federal prosecutors filed in Northern Virginia, last year.
Of course, a great deal has happened since 2014, much of it awful. During the 2016 Presidential election, Assange and WikiLeaks repeatedly published information that was damaging to the Democratic Party and to Hillary Clinton, timing the releases for maximum political damage. Assange denied that the Russian government was the source of this information, but, last summer, the special counsel Robert Mueller charged twelve Russianintelligence operatives with hacking D.N.C. servers and the e-mail account of John Podesta, Clinton’s campaign manager. Mueller’s indictment said that the Russian spies “used the Guccifer 2.0 persona to release additional stolen documents through a website maintained by an organization (‘Organization 1’),” which was WikiLeaks.
Whether he knew it or not, Assange was a key participant in an outrageous Russian effort to sow division inside this country and help Donald Trump. It is understandable that the events of 2016 have heavily colored perceptions of Assange’s arrest and possible extradition to the United States (“Once in the United States, moreover, he could become a useful source on how Russia orchestrated its attacks on the Clinton campaign,” the Times editorial noted.) But it is important to recognize that the legal charges against him have nothing to do with Russia or the 2016 election. They relate exclusively to his dealings with Manning in 2010. As numerous media watchdogs and civil-rights groups have already pointed out, they amount to a dangerous attack on the freedom of the press, and on efforts by whistle-blowers to alert the public of the actions of powerful institutions, including the U.S. government.
In explaining the charges against Assange, the indictment’s “manners and means of the conspiracy” section describes many actions that are clearly legitimate journalistic practices, such as using encrypted messages, cultivating sources, and encouraging those sources to provide more information. It cites a text exchange in which Manning told Assange, “after this upload, that’s all I really have got left,” and Assange replied, “Curious eyes never run dry in my experience.” If that’s part of a crime, the authorities might have to start building more jails to hold reporters.
The indictment, and some of the commentary it engendered, also makes much of the fact that Assange offered to try to crack a computer password for Manning. The Department of Justice claims that this action amounted to Assange engaging in a “hacking” conspiracy. Even some independent commentators have suggested that it went beyond the bounds of legitimate journalism—and the protections of the First Amendment.
But did it? On Thursday, my colleague Raffi Khatchadourian, who has written extensively about Assange, pointed out that, as of now, it looks like Assange didn’t do much, if anything, to crack the password once Manning sent the encrypted version. Khatchadourian also pointed out that federal prosecutors have known about this text exchange for many years, and yet the Obama Administration didn’t bring any charges. “As evidence of a conspiracy,” Khatchadourian writes, “the exchange is thin gruel.”
Even if Assange had succeeded in decoding the encryption, it wouldn’t have given Manning access to any classified information she couldn’t have accessed through her own account. “Cracking the password would have allowed Manning to log onto the computers using a username that did not belong to her,” the indictment says. “Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.” So the goal was to protect Manning’s identity, and Assange offered to assist. But who could argue that trying to help a source conceal his or her identity isn’t something investigative journalists do on a routine basis? Nobody who is knowledgeable about free journalism and the potential threats it faces.
Robert Mahoney, the deputy director of the Committee to Protect Journalists, described the indictment as “deeply troubling” because of the precedent it sets. “With this prosecution of Julian Assange, the U.S. government could set out broad legal arguments about journalists soliciting information or interacting with sources that could have chilling consequences for investigative reporting and the publication of information of public interest,” Mahoney warned.
The editorial in the Times did ultimately acknowledge “that the prosecution of Mr. Assange could become an assault on the First Amendment and whistle-blowers.” The Post’s editorial didn’t even go that far. Instead, it ended by saying Assange “is long overdue for personal accountability.” Many people would agree with that statement. But it is important not to view absolutely everything through the prism of 2016.