WikiLeaks founder Julian Assange arrested and charged with conspiracy
On April 11, federal prosecutors unsealed an indictment against WikiLeaks founder Julian Assange, charging him with one count of conspiring with Chelsea Manning, a WikiLeaks source, to violate a federal anti-hacking law. The charge was unsealed just hours after Ecuador terminated Assange’s political asylum and British police arrested Assange inside the Ecuadorian Embassy in London.
The indictment — originally filed under seal in the Eastern District of Virginia on March 6, 2018 — focuses on Assange’s communications with Manning in 2010, when she was an Army intelligence analyst looking to leak classified documents to WikiLeaks.
According to the indictment, between January 2010 and May 2010, Manning downloaded hundreds of thousands of internal government documents — including significant activity reports from the wars in Afghanistan and Iraq, diplomatic cables, and Guantanamo Bay detainee reports — and leaked them for publication on WikiLeaks.
The indictment alleges that in March 2010, after Manning had already leaked large caches of documents to Assange, she asked Assange to help her cover her tracks in order to avoid being detected as WikiLeaks’ source. Specifically, she wanted help breaking a hashed password so that she could use a different user account to access the government databases from which she was downloading documents. The indictment alleges that Assange agreed to help Manning decrypt the password, though it does not mention whether he actually did so.
Assange is being charged with one count of conspiracy to violate provisions of the Computer Fraud and Abuse Act, a broad anti-hacking law that prohibits unauthorized access to computer systems. If convicted, he could face up to five years in prison.
The indictment specifically alleges that Assange entered into a conspiracy with Manning 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.” It alleges that Assange tried to further this conspiracy by agreeing to try and crack the password for Manning.
The indictment also lists different “ways, manners, and means” that Assange and Manning allegedly used to carry out the conspiracy, some of which are typical of interactions between sources and reporters:
19. It was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks, including by removing usernames from the disclosed information and deleting chat logs between Assange and Manning.
20. It was part of the conspiracy that Assange encouraged Manning to provide information and records from departments and agencies of the United States.
21. 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.
The indictment alarmed some press freedom groups.
“The indictment and the Justice Department’s press release treat everyday journalistic practices as part of a criminal conspiracy,” Jameel Jaffer, executive director of the Knight First Amendment Institute, said in a statement about the charges. “Whether the government will be able to establish a violation of the hacking statute remains to be seen, but it’s very troubling that the indictment sweeps in activities that are not just lawful but essential to press freedom — activities like cultivating sources, protecting sources’ identities, and communicating with sources securely.”
Manning is currently imprisoned for refusing to testify in front of a grand jury. Assange is currently in British police custody in London, and it is unclear whether he will be extradited to the United States to face these federal charges.
“We can confirm that Julian Assange was arrested in relation to a provisional extradition request from the United States of America,” the UK Home Office said in a statement.
Assange will have the opportunity to challenge his extradition at a May 2 hearing held at the Westminster Magistrates’ Court.
On May 23, 2019, a federal grand jury returned an 18-count superseding indictment against WikiLeaks founder Julian Assange, which included an additional 17 counts of violating the Espionage Act on top of the single count of conspiracy to violate the Computer Fraud and Abuse Act that was contained in an initial indictment against Assange in April.
The new charges have alarmed press freedom advocates, who say they could could potentially criminalize newsgathering and reporting techniques commonly used by mainstream U.S. reporters on national security and foreign policy issues.
Assange has been in jail in London since April, when he was removed from the Ecuadorian Embassy where he previously had asylum.
Three of the Espionage Act charges (counts 15–17) relate to Assange’s decision to publish unredacted copies of the Afghanistan war logs, Iraq war logs, and State Department cables. The government claims that Assange’s decision to publish the documents without first redacting the names of confidential informants mentioned in the documents put the informants’ lives at risk and damaged U.S. national security.
The other Espionage Act charges concern Assange’s communications with Manning about leaking specific documents. Assange is charged with conspiring to obtain classified documents, causing Manning to obtain classified documents, causing Manning to disclose classified documents to him, and receiving classified documents. Those are all separate charges.
However, First Amendment lawyers have strongly disagreed with the Justice Department’s position. “It’s not criminal to encourage someone to leak classified information to you as a journalist — that’s called news gathering, and there are First Amendment protections for news gathering,” Theodore J. Boutrous Jr., a prominent media lawyer who recently represented CNN in a lawsuit against the White House, told The New York Times. “The ramifications of this are so potentially dangerous and serious for the ability of journalists to gather and disseminate information that the American people have a right to know.”
Following the release of the superseding indictment, Justice Department officials argued that Assange was not a journalist and the case against Assange was not a threat to mainstream journalists.
“The department takes seriously the role of journalists in our democracy and we thank you for it,” John Demers, the head of the National Security Division of the Department of Justice, told BuzzFeed News. “It has not and never has been the department’s policy to target them for reporting. But Julian Assange is no journalist.”
Legal experts, however, pointed out that it is irrelevant under the law if the Justice Department considers Assange a journalist or not. “The Espionage Act doesn’t make any distinction between journalists and nonjournalists,” Matt Miller, former spokesman for Obama-era Attorney General Eric Holder said. “If you can charge Julian Assange under the law with publishing classified information, there is nothing under the law that prevents the Justice Department from charging a journalist.”
Press freedom advocacy groups also expressed serious concern at the charges.
"The indictment of Julian Assange under the Espionage Act for publishing classified information is an attack on the First Amendment and a threat to all journalists everywhere who publish information that governments would like to keep secret," said Committee to Protect Journalists Executive Director Joel Simon. "Press freedom in the United States and around the world is imperiled by this prosecution."
The superseding indictment charges Assange with violating the Espionage Act for allegedly solicited leaks of classified information. But the conduct that Assange is accused of engaging in is very similar, if not identical, to the conduct that mainstream journalists often engage in when dealing with whistleblowers.
The indictment specifically alleges that Assange solicited classified information by publishing a list of “Most Wanted Leaks” on WikiLeaks, which may have influenced Manning’s decision to look for and leak certain documents to WikiLeaks:
Beginning by at least November 2009, Manning responded to ASSANGE's solicitation of classified information made through the WikiLeaks website. For example, WikiLeaks's "Military and Intelligence" "Most Wanted Leaks" category … solicited CIA detainee interrogation videos. On November 28, 2009, Manning in turn searched the classified network search engine, "Intelink," for "retention+of+interrogation+videos." The next day. Manning searched the classified network for "detainee+abuse," which was consistent with the "Most Wanted Leaks" request for "Detainee abuse photos withheld by the Obama administration" under WikiLeaks's "Military and Intelligence" category.
This kind of “solicitation” of classified information is not unique to WikiLeaks. Reporters regularly tweet calls for whistleblowers to securely send them confidential or classified information related to specific government programs.
Another part of the indictment describes Assange communicating with Manning about the Iran War and taking steps to protect her identity:
At the time ASSANGE agreed to receive and received from Manning the classified Guantanamo Bay detainee assessment briefs, the U.S. Department of State Cables, and the Iraq rules of engagement files, ASSANGE knew that Manning had unlawfully obtained and disclosed or would unlawfully disclose such documents. For example, not only had ASSANGE already received thousands of military-related documents classified up to the SECRET level from Manning, but Manning and ASSANGE also chatted about military jargon and references to current events in Iraq, which showed that Manning was a government or military source; the "releasability" of certain information by ASSANGE; measures to prevent the discovery of Manning as ASSANGE's source, such as clearing logs and use of a "cryptophone;" and a code phrase to use if something went wrong.
Once again, this is not unique to Assange and WikiLeaks. Mainstream national security reporters who publish articles based on classified information generally do so with the knowledge that their source is “a government or military source” and they are not authorized to disclose the information.
Prosecuting Assange for publishing the names of confidential informants could also set a dangerous precedent for journalists. According to the indictment, Assange published the unredacted State Department cables despite being told in advance by the State Department that doing so could put the informants’ lives at risk.
Demers, the Justice Department official, told the press that “no responsible actor — journalist or otherwise” would publish the information that Assange did. It’s true that most journalists wouldn’t recklessly identify so many confidential informants, but even mainstream newspapers like The New York Times have been known to identify covert intelligence officials over the government’s objections.