The Silha Center Bulletin: Winter/Spring 2019: Volume 24, No. 2
On April 11, 2019, British authorities arrested Wikileaks founder Julian Assange at the Ecuadorian embassy in London where he had been seeking refuge since 2012. Following his arrest, U.S. prosecutors unsealed charges against Assange for conspiracy to “access a [government] computer without authorization” under the Computer Fraud and Abuse Act. 18 U.S.C. § 1030. The charges allege that Assange assisted then-Army Pfc. Bradley Manning in cracking a password to gain access to classified documents that WikiLeaks would eventually publish in 2010. In 2013, Manning publicly announced she was a transgender woman and changed her name to Chelsea.
WikiLeaks gained notoriety in 2010 after publishing tens of thousands of classified U.S. military documents on the Internet. The leak included classified video from a U.S. military helicopter as it shot and killed a Reuters photographer in Baghdad in July 2007, as well as operating manuals for the Guantanamo Bay prison. (For more background on WikiLeaks, see “WikiLeaks’ Document Dump Sparks Debate” in the summer 2010 issue of the Silha Bulletin.)
On Aug. 21, 2013, Manning was sentenced to 35 years in prison for violating the Espionage Act, 10 U.S.C. § 793. On Jan. 17, 2017, then-President Barack Obama commuted Manning’s sentence to seven years. (For more background on Manning, see “President Obama Commutes Chelsea Manning’s Sentence, Pardons Gen. James E. Cartwright, Takes No Action on Edward Snowden” in the Winter/Spring 2017 issue of the Silha Bulletin and “Manning Sentenced to 35 Years in Prison for Leaks” in the Winter/Spring 2015 issue.)
On April 11, British police arrested Assange after Ecuador’s President Lenin Moreno revoked political asylum and evicted Assange for “repeated violations [of] international conventions and daily-life protocols,” according to The Washington Post on the same day. Assange had been granted diplomatic asylum in the Ecuadorian embassy in 2012 after losing an appeal against extradition to Sweden, where he faced two sexual assault allegations. The charges in Sweden were eventually dropped, though Assange was found guilty in Westminster Magistrates’ Court of breaching his 2012 bail conditions on April 11, 2019. On May 1, 2019, several media outlets reported that Assange was sentenced to 50 weeks in prison on the bail charges.
The seven-page indictment against Assange was originally filed on March 6, 2018 in the U.S. District Court for the Eastern District of Virginia and was kept secret until prosecutors mistakenly mentioned charges in an unrelated case’s court filings, according to a Nov. 15 Reuters article. The Guardian reported in November 2018 that the error was likely to have been caused by prosecutors copying and pasting from documents. However, no specifics were then publicly known about the secret charges. A lawsuit brought by The Reporters Committee for Freedom of the Press (RCFP) to unseal the indictment was pending at the time of Assange’s arrest when the U.S. released the documents to the public.
The indictment focuses on Assange’s alleged actions in helping Manning gain access to documents released by WikiLeaks. Prosecutors alleged that Assange attempted to assist Manning in cracking a password to log on to the U. S. Department of Defense (DOD) computers under a different username that did not belong to Manning. The measure would have made it more difficult for investigations to determine the source of the leak. The indictment also contended that Assange “actively encouraged” Manning to collect classified documents, highlighting a chat exchange where Assange stated “curious eyes never run dry in my experience.”
Additionally, the indictment stated that Assange “knew that Manning was providing WikiLeaks with classified records containing national defense information of the United States.” It added, “Assange was knowingly receiving such classified records from Manning for the purpose of publicly disclosing them on the WikiLeaks website.”
The sole count of the indictment alleged that Assange “knowingly access[ed] a computer, without authorization and exceed[ed] authorized access, to obtain information . . . relating to the national defense classified up to the ‘Secret’ level, with reason to believe that such information so obtained could be used to the injury of the United States and the advantage of any foreign nation[.]” The full indictment is available online at: https://www.justice.gov/opa/press-release/file/1153486/download.
In an April 12 Washington Post op-ed, Steering Committee Chair for the Reuters Institute for the Study of Journalism Alan Rushbridger, the editor-in-chief of The Guardian during the WikiLeaks revelations in 2010, reviewed the indictment, writing that “the unsealed grand jury indictment boils down to two claims, neither of them new: one, that Assange conspired with Manning to try to get hold of more material, even after she had given hundreds of thousands of classified documents; and two, that Assange attempted — unsuccessfully, it seems — to crack a government password.”
Executive director of the First Amendment Legal Clinic at Arizona State University Gregg Leslie told HuffPost on April 11 that the document “seems like a very weak indictment” and that the government does not “make a good case that [Assange] provided Manning something he couldn’t do himself.”
Some observers attempted to differentiate the traditional news media from Assange and WikiLeaks, arguing that Assange’s actions crossed the line and that WikiLeaks was not a journalistic enterprise for the public good. In an April 11 interview with the HuffPost, Silha Center Director and Silha Professor of Media Ethics and Law Jane Kirtley said, “It’s very hard to argue that the First Amendment protects you if you’re hacking into a government computer.” She added, “The issue of whether he’s a journalist or not has become much less legally significant.”
David A. Schulz, a First Amendment lawyer who advised The Guardian when it published documents leaked by Edward Snowden told Vice News, “If you break into someone’s home to get information, you don’t have legal protection under the guise of sharing the news.” (Schulz delivered the 29th Annual Silha Lecture, titled “See No Evil: Why We Need a New Approach to Government Transparency” on Oct. 16, 2014. For more on the lecture, see “29th Annual Silha Lecture Examines the Right to Access Government Information in the Wake of National Security and Privacy Concerns” in the Fall 2014 issue of the Silha Bulletin.)
David French, a senior writer at the National Review, wrote in an April 12 op-ed that Assange “[is] not a member of the media. He’s nothing like a responsible journalist. And he’s not a true publisher.” Washington Post columnist Kathleen Parker took issue with how Assange vetted and published materials. “He is not, after all, a journalist, despite his claiming to be, because he isn’t accountable to anyone. No filters, no standards,” Parker wrote in an April 12 op-ed for The Post.
Legal scholars and journalists noted the important distinction between active participation and passive reception of documents and the corresponding protections granted by the First Amendment. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the U.S. Supreme Court found that members of the press could not be held liable for publishing or broadcasting illegally obtained information if they were not involved in its acquisition. “If you wake up in the morning and there are some top-secret documents in your email, and you had nothing to do with somebody taking it, then under that case there is a very strong argument that you would not be responsible even if your source very well might be,” Stuart Karle, the general counsel at North Base Media and also an adjunct professor at the Columbia University School of Journalism, told HuffPost.
However, free press advocates emphasized that the charges against Assange should still worry journalists everywhere. Rushbridger wrote, “The laws protecting free speech should not depend on the likability, mental health or personal hygiene of those in the firing line.. . . [I]t may be that we have to suspend our complicated feelings about the man and consider the implications for free expression.” Karle similarly told HuffPost, “If the government is not rigorous about drawing really clear lines that do not implicate standard reporting activities, then it gets problematic.”
In an article for Harper magazine’s April issue, James Goodale, former defense counsel for The New York Times in New York Times v. United States, 403 U.S. 713 (1971), which arose after the Times published excerpts from the Pentagon Papers, highlighted how investigative reporters often obtain classified information through a process of encouraging sources and helping them remain anonymous. If they are no longer allowed to use such techniques, Goodale asserted, “investigative reporting based on classified information will be given a near death blow.”
In an April 12 op-ed for The Hill, Goodale highlighted the impact the charges could have on newsgathering in the digital age and the level of instruction journalists could give their sources. “Can a journalist instruct his source in a manner which will permit the source to escape identification? The answer is, generally speaking, yes — but whether it applies to news-gathering in the Digital Age, using the computer, will be the question in this case,” Goodale wrote. (Goodale was the 2013 Silha lecturer. For more information on the lecture titled “The Lessons of the Pentagon Papers: Has Obama Learned Them?,” see “Silha Lecturer Links Pentagon Papers and Obama Administration’s Treatment of Linkers” in the Fall 2013 issue of the Silha Bulletin.)
In an April 11 statement released online, executive director of the Freedom of the Press Foundation Trevor Timm also called attention to necessary newsgathering activities. “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,” Timm wrote.
Although many journalists and press freedom advocates were relieved that the indictment against Assange lacked a charge under the Espionage Act, several legal experts still expressed concern. “From the broadest perspective, I’m relieved this is not an Espionage Act prosecution,” First Amendment lawyer Floyd Abrams told Vice News on April 11. “That said, it’s not nothing for the government to indict an entity that — whatever one thinks of WikiLeaks — plays a press-like role.” (Abrams delivered the 20th Annual Silha Lecture, titled “Confidential Sources of Journalists: Protection or Prohibition?” on Oct. 24, 2005. For more on the lecture, see “2005 Silha Lecture Features First Amendment Attorney Floyd Abrams” in the Fall 2005 issue of the Silha Bulletin.)
Kirtley also discussed how the government’s strategy against Assange may leave the door open for future charges against journalists. “The Justice Department moves very incrementally on the issue of whether journalists can be charged under the federal espionage statute,” Kirtley told HuffPost. “It strikes me that this indictment is another incremental step toward doing that.”
On April 12, Buzzfeed News reported that Jennifer Robinson, Assange’s lawyer, told reporters that Assange planned to fight extradition, saying that it would set a “dangerous precedent” for journalists “having published truthful information about the United States.” According to Eric Lewis, a senior partner at Lewis Baach Kaufmann Middlemiss PLLC, Assange could argue that he should be protected from extradition because the prosecution is politically motivated. Lewis told The Washington Post that a resolution could take “years rather than months.” As the Bulletin went to press, hearings before a UK Magistrate Court regarding extradition remained ongoing.
On April 22, 2019, several media outlets reported that the U.S. Court of Appeals for the Fourth Circuit in a brief 3-0 decision had upheld a civil contempt order against Manning after she refused to answer questions before a federal grand jury investigating WikiLeaks. The court wrote, “Upon consideration of the memorandum briefs filed on appeal and the record of proceedings in the district court, the court finds no error in the district court’s rulings and affirms its finding of civil contempt. The court also denies appellant’s motion for release on bail.” The two-page order is available online at: https://www.politico.com/f/?id=0000016a-4509-d50f-a96a-ed5b99cc0001.
Politico and the Associated Press (AP) noted that prosecutors appeared to be seeking Manning’s testimony in order to bolster their case against Assange. As the Bulletin went to press, Manning remained in jail in Alexandria, Va.
Silha Research Assistant