Myth #1: The U.S. Is Respecting First Amendment Freedom of the Press, and Only Prosecuting Assange for Hacking
While the criminal indictment against Assange focuses on his alleged conspiracy with Chelsea Manning to hack a Department of Defense password, there is a lot of language complaining about standard journalism practiced by Assange.
New York Times national security reporter Scott Shane tweets:
Even as some commentators say of the Assange charge, “This isn’t about journalism,” the indictment is written to make it about journalism.
The Washington Post’s media columnist Margaret Sullivan writes:
“The indictment discusses journalistic practices in the context of a criminal conspiracy: using encryption, making efforts to protect a source’s identity, and source cultivation,” said University of Georgia media law professor Jonathan Peters.
Those practices, he told me, are not only routine and lawful, “they’re best practices for journalists.”
News organizations now provide secure drop boxes for sources.
They wisely use encryption applications such as Signal to converse with, and receive information from, sources.
That these practices are cast as part of the conspiracy “should worry all journalists, whether or not Assange himself is seen as a journalist,” Peters said.
The risks to news organizations of prosecuting him remain very real.
The New Yorkers’ John Cassidy points out:
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?
Freedom of the Press Foundation’s Trevor Timm says:
A core part of [the indictment’s] argument would criminalize many common journalist-source interactions that reporters rely on all the time. Requesting more documents from a source, using an encrypted chat messenger, or trying to keep a source’s identity anonymous are not crimes; they are vital to the journalistic process. Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested by all those who care about the First Amendment.
The ACLU’s Ben Wizner notes:
Any prosecution by the United States of Mr. Assange for Wikileaks’ publishing operations would be unprecedented and unconstitutional, and would open the door to criminal investigations of other news organizations.
His indictment characterizes as ‘part of’ a criminal conspiracy the routine and protected activities journalists often engage in as part of their daily jobs, such as encouraging a source to provide more information.
The Committee to Protect Journalists’ Robert Mahoney writes:
The potential implications for press freedom of this allegation of conspiracy between publisher and source are deeply troubling. 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.
Reporters Without Borders argues:
The prosecution of those who provide or publish information of public interest comes at the expense of the investigative journalism that allows a democracy to thrive.
Electronic Frontier Foundation writes:
While the indictment of Julian Assange centers on an alleged attempt to break a password—an attempt that was not apparently successful—it is still, at root, an attack on the publication of leaked material and the most recent act in an almost decade-long effort to punish a whistleblower and the publisher of her leaked material. Several parts of the indictment describe very common journalistic behavior, like using cloud storage or knowingly receiving classified information or redacting identifying information about a source. Other parts make common free software tools like Linux and Jabber seem suspect.
Knight First Amendment Institute at Columbia University’s Jameel Jaffer notes:
The indictment and the Justice Department’s press release treat everyday journalistic practices as part of a criminal conspiracy. 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.
The Center for Constitutional Rights points out:
The arrest sets a dangerous precedent that could extend to other media organizations such as The New York Times, particularly under a vindictive and reckless administration that regularly attacks journalistic enterprises that, just like WikiLeaks, publish leaked materials that expose government corruption and wrongdoing. This is a worrying step on the slippery slope to punishing any journalist ….
Human Rights Watch says:
Many of the actions listed in the indictment, such as holding encrypted chats, concealing a source’s identity, or using secure drop boxes, are part and parcel of journalism in the digital age, Human Rights Watch said.
“There is a real danger that the Assange case could become a model for governments that seek to punish media for exposing evidence of abuses” ….
And Pulitzer Prize winning journalist Glenn Greenwald and Micah Lee write:
The indictment seeks to criminalize what journalists are not only permitted but ethically required to do: take steps to help their sources maintain their anonymity. As longtime Assange lawyer Barry Pollack put it: “The factual allegations … boil down to encouraging a source to provide him information and taking efforts to protect the identity of that source. Journalists around the world should be deeply troubled by these unprecedented criminal charges.”
That’s why the indictment poses such a grave threat to press freedom. It characterizes as a felony many actions that journalists are not just permitted but required to take in order to conduct sensitive reporting in the digital age.
But because the DOJ issued a press release with a headline that claimed that Assange was accused of “hacking” crimes, media outlets mindlessly repeated this claim even though the indictment contains no such allegation. It merely accuses Assange of trying to help Manning avoid detection. That’s not “hacking.” That’s called a core obligation of journalism.
Encouraging sources to obtain more information is something journalists do routinely. Indeed, it would be a breach of one’s journalistic duties not to ask vital sources with access to classified information if they could provide even more information so as to allow more complete reporting.
As Edward Snowden said this morning, “Bob Woodward stated publicly he would have advised me to remain in place and act as a mole.”
Northwestern journalism professor Dan Kennedy explained in The Guardian in 2010 when denouncing as a press freedom threat the Obama DOJ’s attempts to indict Assange based on the theory that he did more than passively receive and publish documents — i.e., that he actively “colluded” with Manning:
The problem is that there is no meaningful distinction to be made. How did the Guardian, equally, not “collude” with WikiLeaks in obtaining the cables? How did the New York Times not “collude” with the Guardian when the Guardian gave the Times a copy following Assange’s decision to cut the Times out of the latest document dump?
For that matter, I don’t see how any news organisation can be said not to have colluded with a source when it receives leaked documents ….
Journalists have an ethical obligation to take steps to protect their sources from retaliation, which sometimes includes granting them anonymity and employing technical measures to help ensure that their identity is not discovered. When journalists take source protection seriously, they strip metadata and redact information from documents before publishing them if that information could have been used to identify their source; they host cloud-based systems such as SecureDrop, now employed by dozens of major newsrooms around the world, that make it easier and safer for whistleblowers, who may be under surveillance, to send messages and classified documents to journalists without their employers knowing; and they use secure communication tools like Signal and set them to automatically delete messages.
But today’s indictment of Assange seeks to criminalize exactly these types of source-protection efforts, as it states that “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, in numerous other passages, plainly conflates standard newsroom best practices with a criminal conspiracy. It states, for instance, that “it was part of the conspiracy that Assange and Manning used the ‘Jabber’ online chat service to collaborate on the acquisition and dissemination of the classified records, and to enter into the agreement to crack the password […].” There is no question that using Jabber, or any other encrypted messaging system, to communicate with sources and acquire documents with the intent to publish them, is a completely lawful and standard part of modern investigative journalism. Newsrooms across the world now use similar technologies to communicate securely with their sources and to help their sources avoid detection by the government.
The indictment similarly alleges that “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.”
Removing metadata that could help identify an anonymous source, such as usernames, is a critical step in protecting sources.
Moreover, the U.S. will almost certainly add many more claims to the indictment (perhaps including espionage) if Assange is extradited to the U.S.
US Justice Department officials expect to bring additional charges Assange, according to a US official briefed on the matter.
The Washington Post reports: “More charges are probably forthcoming”.
And Professor of International Law at the University of Illinois School of Law Francis Boyle points out:
Once the U.S. government has Assange over here, they can concoct whatever charges they want to against him for anything and then ask the British to waive what’s called the Rule of Specialty. That could add up to much more than the current five years Assange is facing. The British government will almost certainly consent, unless Jeremy Corbyn becomes prime minister.
Myth #2: Assange Will Get a Fair Trial In the U.S.
14-year CIA officer John Kiriakou notes:
Assange has been charged in the Eastern District of Virginia — the so-called “Espionage Court.” That is just what many of us have feared. Remember, no national security defendant has ever been found not guilty in the Eastern District of Virginia. The Eastern District is also known as the “rocket docket” for the swiftness with which cases are heard and decided. Not ready to mount a defense? Need more time? Haven’t received all of your discovery? Tough luck. See you in court.
… I have long predicted that Assange would face Judge Leonie Brinkema were he to be charged in the Eastern District. Brinkema handled my case, as well as CIA whistleblower Jeffrey Sterling’s. She also has reserved the Ed Snowden case for herself. Brinkema is a hanging judge.
Brinkema gave me literally no chance to defend myself. At one point, while approaching trial, my attorneys filed 70 motions, asking that 70 classified documents be declassified so that I could use them to defend myself. I had no defense without them. We blocked off three days for the hearings. When we got to the courtroom, Brinkema said, “Let me save everybody a lot of time. I’m going to deny all 70 of these motions. You don’t need any of this information to be declassified.” The entire process took a minute. On the way out of the courtroom, I asked my lead attorney what had just happened. “We just lost the case. That’s what happened. Now we talk about a plea.”
My attorneys eventually negotiated a plea for 30 months in prison — significantly below the 45 years that the Justice Department had initially sought. The plea was something called an 11-C1C plea; it was written in stone and could not be changed by the judge. She could either take it or leave it. She took it, but not after telling me to rise, pointing her finger at me, and saying, “Mr. Kiriakou, I hate this plea. I’ve been a judge since 1986 and I’ve never had an 11C1C. If I could, I would give you ten years.” Her comments were inappropriate and my attorneys filed an ethics complaint against her. But that’s Brinkema. That’s who she is.
Julian Assange doesn’t have a prayer of a fair trial in the Eastern District of Virginia.
Myth #3: This Is About Protecting America’s National Security
New York Times’ national security reporter Scott Shane tweets:
Given the nature of the charge — a discussion 9 years ago about an unsuccessful attempt to figure out a password — I think it’s fair to debate whether this is a figleaf for the government punishing someone for publishing stuff it doesn’t want published.
One of America’s top constitutional law experts – Jonathan Turley – writes for USA Today, in an article entitled “WikiLeaks founder Julian Assange will be punished for embarrassing the DC establishment”:
Assange committed the unpardonable sins of embarrassing the establishment — from members of Congress to intelligence officials to the news media. And he will now be punished for our sins.
***Assange will be convicted of the felony of causing embarrassment in the first degree.
Indeed, when asked the difference between prosecuting Wikileaks and the New York Times for publishing leaked documents, the U.S. Attorney General Michael Mukasey said the U.S. should prosecute Assange because – when exercising prosecutorial discretion – it’s “easier” than going after the New York Times.
In reality, both whistleblowers and the reporters they speak with are being hounded by the government …
National security claims are … used to keep financial fraud secret (and people who protest runaway criminality by the big banks are targeted as terrorists). And when those in the private sector blow the whistle on potential crimes, they are targeted also.
Government employees also go out of their way to smear whistleblowers. Indeed, even high-level government employees are in danger. For example, after the head of the NSA’s spying program – William Binney – disclosed the fact that the U.S. was spying on everyone in the U.S. and storing the data forever, and that the U.S. was quickly becoming a totalitarian state, the Feds tried to scare him into shutting up:
[Numerous] FBI officers held a gun to Binney’s head as he stepped naked from the shower. He watched with his wife and youngest son as the FBI ransacked their home. Later Binney was separated from the rest of his family, and FBI officials pressured him to implicate one of the other complainants in criminal activity. During the raid, Binney attempted to report to FBI officials the crimes he had witnessed at NSA, in particular the NSA’s violation of the constitutional rights of all Americans. However, the FBI wasn’t interested in these disclosures. Instead, FBI officials seized Binney’s private computer, which to this day has not been returned despite the fact that he has not been charged with a crime.
But it’s not just whistleblowers … it’s also the reporters they speak with.
The government started spying on journalists in 2002 to make sure they didn’t write about the NSA’s mass surveillance program.
Indeed, the government treats real reporters as terrorists. Because the core things which reporters do could be considered terrorism, in modern America, journalists are sometimes targeted under counter-terrorism laws.
Not only has the government thrown media owners and reporters in jail if they’ve been too critical, it also claims the power to indefinitely detain journalists without trial or access to an attorney which chills chills free speech.
After Pulitzer Prize winning journalist Chris Hedges, journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg and others sued the government to enjoin the NDAA’s allowance of the indefinite detention of Americans – the judge asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys. The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.
Myth #4: Assange is a Proven Rapist
One of the two women who accused Assange of raping them in Sweden produced a condom which she claimed was intentionally torn by Assange before they used it. However, the Sydney Morning Herald, Register and others reported that forensic DNA tests on the condom concluded that it did not contain any of Assange’s DNA. This casts doubt on the veracity of at least one of the accusers.
The Guardian also noted many odd facets of Sweden’s treatment of the rape allegations:
Swedish prosecutors attempted to drop extradition proceedings against Julian Assange as early as 2013, according to a confidential exchange of emails with the [British] Crown Prosecution Service [CPS] seen by the Guardian.
The sequence of messages also appears to challenge statements by the CPS that the case was not live at the time emails were deleted by prosecutors, according to supporters of the WikiLeaks founder. [In a separate article, the Guardian notes that CPS deleted key emails regarding Sweden’s prosecution of Assange]
The newly-released emails show that the Swedish authorities were eager to give up the case four years before they formally abandoned proceedings in 2017 and that the CPS dissuaded them from doing so.
The CPS lawyer handling the case, who has since retired, commented on an article which suggested that Sweden could drop the case in August 2012. He wrote: “Don’t you dare get cold feet!!!”.
Not all the emails are preserved in the exchange, but three days later Ny emailed the CPS again to say: “I am sorry this came as a [bad] surprise… I hope I didn’t ruin your weekend.”
At the beginning of the legal battle over Assange in 2011, the CPS advised Swedish prosecutors not to interview him in Britain, but they eventually did.
I don’t know whether Assange did or did not commit rape. But accusations are very different from convictions after all evidence is aired in court. And it seems like foreign bodies such as Britain’s CPS pushed hard to keep Sweden’s prosecutions and extradition requests going.