Are espionage charges against WikiLeaks’s founder a warning to the press?
A decade after WikiLeaks founder Julian Assange published secret military documents about wars in Afghanistan and Iraq, then spent seven years holed up in a London embassy, a British judge is deciding whether his next stop should be a US courtroom.
Beyond Assange’s next destination, the case also could affect the future of investigative journalism, at least when it comes to government secrets. During the British extradition hearing that ended Oct. 2, the US government’s strategy was to dust off the Espionage Act of 1917, making the stakes much larger: Could journalists be subject to prosecution for the same reason?
The indictment of Assange describes common practices of investigative journalism — including “publishing secret information” and the use of an anonymous digital dropbox — as alleged crimes. Defense lawyers argue his prosecution by a US president who calls the press “an enemy of the people” is politically motivated.
The Australian founder of WikiLeaks has been behind document dumps that shook the world, casting new light on America’s wars, diplomacy, secret detentions, and CIA hacking. He faces life in prison for leaks he published in 2010 — in partnership with some of the world’s largest newspapers — of the Iraq and Afghanistan war logs and US diplomatic cables.
Assange has lived in physical confinement for most of the past decade: for nearly seven years in London’s Ecuadorian Embassy where he sought political asylum and, for the last 18 months, in Britain’s supermax Belmarsh prison.
It is still uncertain when or if Assange will face trial in a US courtroom. The UK District Court judge, Vanessa Baraitser, will not rule on Assange’s extradition until January 4. The losing side will almost certainly appeal to a higher court. If Joe Biden wins the US presidency, his Justice Department might change or drop the charges. However, Biden has described WikiLeaks’s founder as “a hi-tech terrorist.”
“What we’re looking for is an extradition. Period. We want to get our hands on Assange,” said Robert Deitz, an American lawyer and former intelligence officer, in an interview with WhoWhatWhy.
Assange’s defense lawyers say America wants his “head on a pike” as a warning to leakers and journalists. That is the short version of his legal defense in an extraordinary four-week extradition hearing, in which the court also heard evidence of Assange’s mental health and risk of suicide, and an alleged CIA plot to “poison or kidnap” him. The legal proceedings, which began on September 7, were beset with irregularities. Assange was not able to read the latest indictment or prepare with his defense lawyer, Edward Fitzgerald QC, until the day of his trial. Amnesty International was banned from the courtroom.
Assange’s former media partners, the New York Times, the Guardian, Le Monde, Der Spiegel, and El Pais, have largely ignored his extradition hearing. “The most dangerous man in the world,” according to one biographer, Assange is also one of the most hated in the United States, implicated in and often blamed for the 2016 election of President Trump. The argument that Assange’s trial is a threat to global press freedom is often prefaced by “whatever you think of Assange.”
If the UK hands him over, the Trump administration plans to put him on trial under the 1917 Espionage Act — a law passed in a fit of war hysteria, intended for spies and traitors. The charges add up to 175 years in prison.
“My worst fears have been confirmed,” said James Goodale, a First Amendment lawyer who represented the New York Times in the Pentagon Papers case, in an email to WhoWhatWhy.
“Julian Assange is being charged under the same statute the Nixon administration tried to use against the New York Times — conspiracy to commit espionage.”
America’s most famous whistleblower, Daniel Ellsberg — who also faced prosecution under the Espionage Act for leaking the Pentagon Papers nearly 50 years ago — told the court Assange’s publications were of “comparable importance.”
“These revelations, like the Pentagon Papers, have the capability of informing the public that they had seriously been misled about the nature of war, progress in war, the likelihood of it ending at all,” he said.
The charges against Assange say nothing about WikiLeaks’s role in publishing Hiilary Clinton’s leaked emails. In its final report on alleged Trump-Russia collusion, the US Senate Select Committee on Intelligence mentions WikiLeaks 475 times and Assange 193 times. He is accused of having been either a naive, “useful idiot” — who couldn’t distinguish between a plant and a legitimate whistleblower — or an active accomplice.
“Once we get him under our control and jurisdiction, then all kinds of things can happen,” said Deitz. “He could be called to the Hill to testify. There could possibly be civil lawsuits against him. None of that is going to be wrapped up in an extradition request.”
Blocking Extradition: What Can Stand in the Way?
The legal barriers to Assange’s being handed over are not high. An unusual feature of the US-UK extradition treaty is that the United States does not have to provide any prima facie evidence that Assange is guilty of anything. Suspicion of a crime is enough.
“My guess is it will go ahead,” said Deitz. “The US and UK are exceedingly close in the intelligence community, the CIA, for example, but also the NSA, which has very close relations with GCHQ, England’s version of the NSA.”
What could stand in the way? Under Article 4 of the treaty, “extradition shall not be granted if the offense for which extradition is requested is a political offense” or if the request is “politically motivated.” However, to date, no US extradition request to the UK has been blocked on political grounds.
Instead of leaks or espionage, the defense wants to make the case all about Trump.
In a written submission, James Lewis QC, the barrister representing the US government in the case, complained Assange’s lawyers were conducting a defense consisting of “an attack upon the president of the United States [which] ignores the institutional competencies of the agencies relevant to this case, the constitution of the United States, and the independence of its courts.”
Jacques Semmelman, a New York lawyer who specializes in extradition cases, said it is possible Assange’s lawyers could win the political argument but still lose the legal battle. The UK court could deliver a “mixed” decision, rejecting extradition under the Espionage Act charges — but allowing it to go ahead for the alleged crimes of computer intrusion and conspiracy. US prosecutors could then relaunch the espionage charges once Assange arrives.
“Some courts in the US would allow a defendant to raise the issue and might rule out those charges,” Semmelman told WhoWhatWhy, “but other courts would go ahead unless the UK submitted an objection to the court. Do we think the UK government would do that? I don’t have a crystal ball but I would guess perhaps not.”
Much of the testimony at the extradition hearing related to Assange’s poor physical and mental condition. He has lived in physical confinement, without sunlight, for most of the past decade. For almost seven of those years, he sought political asylum in the Ecuadorian embassy in London, after skipping bail over sexual assault allegations in Sweden (which were eventually dropped). Assange’s decision to seek asylum, he said, was to avoid being handed over by Sweden or the UK to the United States.
The court heard details about Assange’s Asperger’s syndrome diagnosis and depressive state of mind from psychologists who believe he would be a high suicide risk if confined to a supermax prison in the US.
British courts have shown compassion in some high-profile, US-bound extradition cases (at least in the case of UK citizens — which Assange is not) on mental health and/or human rights grounds. US authorities accused both Gary McKinnon and, a few years later, Lauri Love, of “the biggest military hack ever.” Both avoided being sent to the US for trial. Like Assange, they suffer from Asperger’s syndrome.
The New York Times Problem
When British authorities dragged Assange out of Ecuador’s embassy on April 11 last year, they said they were arresting him because the United States had demanded his extradition. The indictment, once unsealed, turned out to contain a single, seemingly flimsy charge — attempting to help whistleblower Chelsea Manning crack a system password hash to hide her identity — under the Computer Fraud and Abuse Act, carrying a possible five-year sentence.
Pursuing Assange for computer intrusion seemed legally plausible and would circumvent what Department of Justice officials under President Barack Obama called the “New York Times problem.” For prosecutors, it wasn’t clear how to prosecute Assange for publishing classified information but not the Times for doing the same thing. According to Goodale, the hacking charge was a “snare and delusion to get public opinion on the prosecution side.”
Most Democratic and Republican leaders applauded Assange’s arrest and indictment. So did the editorial boards of the Washington Post and New York Times — the two US papers that published the Pentagon Papers nearly 50 years ago.
The New York Times’s opinion editors saw no problem arresting the WikiLeaks founder for allegedly breaking into a computer. “The administration has begun well by charging Mr. Assange with an indisputable crime,” they wrote, that “could help draw a sharp line between legitimate journalism and dangerous cybercrime.”
Assange is “not a free-press hero,” editorialized the Washington Post, but a man “long overdue for personal accountability.” His “case could conclude as a victory for the rule of law, not the defeat for civil liberties of which his defenders mistakenly warn.”
Only six weeks later, on May 23, the case against Assange veered into uncharted legal territory. He was slammed with 17 more charges in a new, superseding indictment under the Espionage Act. The Obama Administration had already given new life to this World War I-era legal relic in order to prosecute government employees — and WikiLeaks source Chelsea Manning — for whistleblowing.
Assange stands accused of engaging in some of the standard practices of investigative journalism. “Assange designed WikiLeaks to focus on information, restricted from public disclosure by law, precisely because of the value of that information” and he “predicated his and WikiLeaks’s success in part upon encouraging sources with access to such information to violate legal obligations and provide that information for WikiLeaks to disclose.”
Designating Assange as a co-conspirator with Manning under the Espionage Act introduces a new prosecutorial concept for journalists. James Risen, a former New York Times journalist threatened by the Obama administration with jail for protecting a source, calls it a “model for a crackdown.”
The prosecutors’ interpretation of their own indictment is that it doesn’t matter whether or not Assange is a journalist. The US Espionage Act covers anyone in the world who publishes US government secrets, according to the Trump administration, but the First Amendment of the US Constitution only protects American journalists.
The third (second superseding) indictment against Assange, dated June 24, is based on the exact same 18 offenses as the previous one; however, it details a broader criminal theory around conspiracy to commit computer intrusion (“sources” become “recruits”), covering Assange’s alleged involvement with and encouragement of hackers from the group LulzSec. Deitz explained that good legal storytelling is often as important as the counts themselves.
“Good lawyers build narratives,” said Deitz. “Superseding indictments often serve that purpose.”
One milestone in the indictment’s storyline is the claim that WikiLeaks’s assistance to Edward Snowden, helping him to get from Hong Kong to Moscow, was motivated by criminal conspiracy: “To encourage leakers and hackers to provide stolen materials to WikiLeaks in the future, Assange and others at WikiLeaks openly displayed their attempts to assist Snowden in evading arrest.” Ominously for members of WikiLeaks staff, some are now listed as “co-conspirators.”
As evidence of conspiracy, the indictment cites — 14 times — a 2009 WikiLeaks “Most Wanted Leaks” page and describes it as a tool “to recruit individuals to hack into computers and/or illegally obtain and disclose classified information to WikiLeaks.” Organized by country, “most wanted” includes: “All documents pertaining to Nazi Germany and the Vatican … a list of URLs and keywords filtered by the Great Firewall of China … Bilderberg Group meeting minutes,” and “CIA detainee interrogation videos.”
As the Electronic Frontier Foundation has pointed out, there is nothing illegal about the list. Also, it was crowdsourced — “a publicly-editable wiki … developed by contributors who felt each ‘wanted’ document offered information that would be valuable to the public.” Anyone with internet access could contribute by clicking on “edit” to make changes to the page.
Does WikiLeaks Have ‘Blood on Its Hands’?
The most serious accusation against Assange is that WikiLeaks has “blood on its hands” after recklessly putting hundreds of human lives at risk. According to the indictment, Assange “disseminated and published without redacting the names of human sources who were vulnerable to retribution by the Taliban in Afghanistan or the insurgency in Iraq…” as well as “over 250,000 [diplomatic] cables in August and September 2011.”
The sources are said to include “journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes.”
During an intense cross-examination from Lewis, Ellsberg asserted there is no evidence for the charge. “I am still capable of being fooled by the government, like with WMD in Iraq — when they told me WikiLeaks had blood on their hands I believed them, but 10 years later there is no evidence.”
James replied that the Taliban said they were using the leaks to identify informers, and Osama bin Laden was found to have copies of WikiLeaks documents when he was killed by US forces in 2011.
“What about the disappeared people in Iraq and Afghanistan?” Lewis asked, arguing some people were likely forced to flee their homes after being named in WikiLeaks.
“How many refugees have been caused in that region by US wars?” Ellsberg asked in reply, objecting that the US government is “pretending to care about the people in this region when their policies have shown their absolute contempt for them over the last 19 years.”
A recent report estimates the US “war on terror” has displaced 37 million people.
Ellsberg admitted when reexamined by the defense that he did not redact a single name in the Pentagon Papers he leaked (though they “contained thousands”). He did withhold four folders of information because they might have had an impact on a negotiated peace settlement.
The court also heard testimony about WikiLeaks’s redactions from John Goetz, an American journalist who reported on the Afghan War Diaries (a huge collection of US military files) for the German magazine Der Spiegel. He said that in working with Assange (Der Spiegel was one of WikiLeaks’s media partners), he used “robust” methods to automate the redaction of names and “protect innocents.” According to him, it was WikiLeaks’s decision, not the New York Times’s or Der Spiegel’s, to withhold 15,000 documents from publication.
In the case of so-called Cablegate (the 2010 disclosure of diplomatic cables from US embassies to countries around the world), WikiLeaks released all 251,000 cables in its possession without redacting names of informants. However, as the court was told, the full archive had already been published elsewhere on the Internet.
Computer scientist Christian Grothoff, giving evidence for the defense, explained there was nothing WikiLeaks could do to prevent the unredacted release once two UK Guardian journalists revealed the password (because they assumed it had expired) to the encrypted file. They did so in their tell-all book, WIKILEAKS: Inside Julian Assange’s War on Secrecy.
Neither the journalists nor the US-based website Cryptome — which published a searchable version of the full archive before WikiLeaks — were ever notified by US law enforcement authorities that the publication was illegal.
What happened next was documented by filmmaker Laura Poitras. As members of mainstream media often do, Assange tried unsuccessfully to warn and engage with the State Department over the fallout from the leaked cables.
Now-retired Brigadier Gen. Robert Carr, the man in charge of investigating the impact of WikiLeaks for the US government, leveled “blood on their hands” charges at Chelsea Manning during her 2013 trial. However, under oath at her trial, he admitted that he had found no evidence anyone was ever killed because of WikiLeaks. An initial claim that the Taliban had murdered a man based on leaked information was struck from the court record when it was determined his name was not found in the Afghan war logs.
Carr’s investigation began in 2010, when the Department of Defense set up the Information Review Task Force, a 24/7 damage-control operation involving 125 people from 20 US government agencies. Line by line, they reviewed 740,000 pages of classified documents released by WikiLeaks to assess the damage to national security. Meanwhile, the CIA had its own WikiLeaks Task Force — referred to as WTF — to determine if the leaks would affect the agency’s ability to recruit informants due to a loss of confidence in the US government’s ability to keep secrets.
Buzzfeed obtained a heavily redacted version of the Department of Defense report through a Freedom of Information Act request in 2017. It found “no direct personal impact on current and former US leadership in Iraq” nor any “significant impact” on US operations in Afghanistan. It did predict, however, that harm could come to “cooperative Afghans, Iraqis, and other foreign interlocutors.”
One of the report’s main conclusions was that the exposures by WikiLeaks could “negatively impact support for current operations in the region”: If the public ever learned the true number of civilian casualties, they might turn against the war.
Sticking It to the ‘Deep State’
One of the main planks in Assange’s defense is the alleged willingness of the Trump administration to meddle in his fate to “benefit the president politically.” One example is his use of his power to pardon.
Jennifer Robinson, one of Assange’s defense lawyers, submitted a sworn statement to the extradition court that Trump, via then-Rep. Dana Rohrabacher (R-CA), offered Assange a pardon if he would produce evidence — presumably by identifying his source — to back up his denial of any Russian involvement in leaking Democratic Party emails. The revelation was not exactly new — the defense brought it up in a preliminary hearing — but Robinson’s statement provided more detail.
The proposal of a “win-win” deal came in a meeting arranged by notorious alt-right blogger Charles “Chuck” Johnson in August 2017 (almost a year before a federal grand jury issued a sealed indictment against Assange) with Robinson present. “They stated that President Trump was aware of and had approved of them coming to meet with Mr. Assange to discuss a proposal — and they would have an audience with the president to discuss the matter on their return to Washington DC,” Robinson said
The White House and Rohrabacher have denied Trump knew about the offer.
In 2010, on Fox News’s Kilmeade and Friends, Trump had called for Assange’s execution. By 2016, in the wake of the Democratic National Committee email leaks, he was praising Assange (“I love WikiLeaks”) while calling for Edward Snowden, the whistleblower who exposed the mass-scale surveillance of the American public by the government, to be given the death penalty.
In August 2020, after commuting the sentence of friend and former campaign advisor Roger Stone for lying under oath to Congress (about his contacts with WikiLeaks), Trump publicly toyed with the idea of pardoning Snowden. “I am going to take a look at that very strongly,” he said. Trump saw political profit in outflanking prominent Democrats on an issue — being spied on by the government — that concerns libertarians and millennials (“digital natives”) alike.
An ACLU poll found that “In the United States, 56 percent of millennials have favorable opinions of Snowden … [and] in continental Europe … between 78 and 86 percent of millennials familiar with Snowden have positive opinions of him.”
In a three-minute elevator pitch delivered on Fox News, knowing that Trump might be watching, investigative reporter Glenn Greenwald pleaded for the president to pardon both Assange and Snowden for the president’s own political benefit (not saying a word about freedom of the press). He drilled home Trump’s unique chance to deploy his constitutionally enumerated pardon power to stick it to the “deep state.” Who would be angry? “Susan Rice, John Brennan, Jim Comey, and James Clapper because they’re the ones who [Assange and Snowden] exposed,” Greenwald said.
‘Mad, Sad, and Bad’
Assange’s alleged personal failings have been described in detail by former media partners and ex-WikiLeaks colleagues and staffers. His former ghostwriter describes him as “conspiratorial, untruthful, narcissistic … probably a little mad, sad and bad.”
German technology activist Daniel Domscheit-Berg was so angry with Assange that he sabotaged WikiLeaks’s anonymous dropbox, published a tell-all book about the world’s “most dangerous website,” and tried unsuccessfully to create a competitor site, OpenLeaks. For the Guardian’s James Ball, “he’s a problematic asshole.” Ball and others have questioned why Assange seemed to associate with and supply American diplomatic cables to Israeli-Russian journalist Israel Shamir, an author of anti-Semitic books, who passed on sensitive information to the Lukashenko regime in Belarus. (WikiLeaks has issued a denial.)
Poitras was so taken aback by the contradictions of Julian Assange that she reedited a largely favorable film to make it “tougher, darker.” Micah Lee, co-founder of the Freedom of the Press Foundation, who built a crowdfunding platform to help WikiLeaks bypass the US-driven banking blockade in 2010, continues to defend Assange against espionage charges but is “not a fan … particularly since his unethical actions and lies he’s told since the 2016 US election.”
Assange gratuitously turned himself into a flash point of controversy over feminism while being investigated for sexual assault by Swedish prosecutors (calling Sweden “the Saudi Arabia of feminism”) even as his supporters struggled on his behalf. Italian investigative journalist Stefania Maurizi, after years of Freedom of Information Act lawsuits at her own expense, forced the release of emails showing Britain’s Crown Prosecution Service had pushed Swedish prosecutors not to drop the case — “don’t get cold feet” — as early as 2013. Women Against Rape, a UK charity, also stood up for him (“the allegations against him are a smokescreen behind which a number of governments are trying to clamp down on WikiLeaks”).
WikiLeaks has been subject to massive leaks of its own internal documents almost from the day it went live in 2006; the revelations are sometimes troubling. In public, Assange denounced Hillary Clinton for destroying Libya and getting “an unseemly emotional rush out of killing people.” In private, he doubled down, calling her a “sociopath.” Participants in a leaked private WikiLeaks twitter chat responded to a leaked Clinton email — in which she asks about the meaning of FUBAR (military slang for “fu—- up beyond all recognition”) — with misogynistic jokes about “taking Clinton’s FUBAR virginity.”
The Twitter chat seems to anticipate Assange’s speculation that the sexual frustration of “incel” (“involuntarily celibate”) men had something to do with Clinton’s election loss, summed up in a tweet just days before his arrest. “Did millions of young men, stripped of romance and children (possibly by the soar in wealth inequality post the 2008 crash), vent their disappointment via memetic warfare against an avowedly feminist candidate?”
Why Trump won: Did millions of young men, stripped of romance and children (possibly by the soar in wealth inequality post the 2008 crash), vent their disappointment via memetic warfare against an avowedly feminist candidate? Who will harness this army of free time in 2020? pic.twitter.com/FqdrKHi5F7
— WikiLeaks (@wikileaks) April 1, 2019
Assange supporters like Noam Chomsky, co-chair of AssangeDefense.org, and UN Special Rapporteur on Torture Nils Melzer, are deeply concerned that Assange’s “personality problem” glosses over the heart of the case. “It pushes out how Assange’s 2010 publications exposed 15,000 previously uncounted civilian casualties in Iraq … [and] the fact that all whistleblowers and journalism itself, not just Assange, is on trial here,” Chomsky said.
Melzer, a Swiss international lawyer, was reluctant at first to investigate because he saw Assange as a “rapist, a hacker, a spy and a narcissist.” After visiting him with a medical team in Belmarsh prison last year, he concluded that Assange was a political prisoner suffering from the symptoms of psychological torture. Ever since, he has been on a crusade to save him.
Near the end of witness testimony in Assange’s extradition hearing, the court learned that, for the last 1½ years in the Ecuadorian Embassy, Assange was literally the most surveilled person on the planet. His every move was captured by hidden cameras and microphones and allegedly live-streamed in real time to the CIA.
WikiLeaks acquired hard evidence of Assange’s surveillance after a failed extortion attempt in Spain ended in a sting operation and the seizure of gigabytes of security camera footage of Assange inside the embassy.
According to the New York Times, which was granted access to some of the material, “his claims of being spied upon were not just paranoia or a publicity stunt.” WikiLeaks revealed some details of Assange’s “Truman Show-like” surveillance last year at an April 10 press conference. The next day, Ecuador allowed British police into their London embassy to arrest Assange.
James Lewis, representing the US government, did not ask to cross-examine the witnesses on a video link. He would not be given access to any information gathered by the CIA, he claimed, because there is a Chinese wall between the Justice Department and US intelligence.
In the case of Daniel Ellsberg, if Watergate conspirators (“plumbers” G. Gordon Liddy and E. Howard Hunt) had not broken into a filing cabinet in his psychiatrist’s office, he would have faced a trial under the Espionage Act with a possible sentence of 115 years. A mistrial was declared and all charges were thrown out.
‘Britain’s Guantánamo Bay’
For years, Assange expressed his fear of being sent to Guantánamo, the US military prison in Cuba. Events have vindicated his paranoia. Since the revocation of his Ecuardorian citizenship and arrest by British police, Assange has been imprisoned in “Britain’s Guantánamo Bay” — the supermax Belmarsh prison where non-British nationals can be detained indefinitely under the post-9/11 Terrorism Act.
A group of 200 concerned doctors has written a series of open letters to the UK home secretary, warning Assange’s health is so bad that he could die in Belmarsh; multiple cases of the coronavirus in the prison are putting him, an asthmatic, at even greater risk.
Assange can appeal an unfavorable extradition decision to a UK Court of Appeal and UK Supreme Court. If he loses at that stage, Assange could also appeal to the European Court of Human Rights. If he wins his extradition fight, Assange would likely be deported to his native Australia, where the US could launch a new extradition request under the same Espionage Act charges.
Even if the US loses in the end, and Assange’s extradition is blocked, the Trump administration (and William Barr’s Justice Department) will have established the dangerous precedent of indicting someone under the Espionage Act for publishing truthful information about the war on terror. “News organizations are going to have to now operate under the shadow of this indictment,” said Jameel Jaffer, a former attorney with the ACLU.
So far, there has been more questioning of Assange’s fate in Europe than in the United States. Is the US asserting an extraterritorial right to extradite and prosecute any foreign journalist or publisher for publishing classified information? What is to prevent China, or Russia, from doing the same? Will non-Americans like Assange be denied First Amendment rights?
Legal scholars, even ones “sympathetic to shutting down WikiLeaks” like Benjamin Wittes, have issued Cassandra-like prophecies about what happens if the Espionage Act is fully weaponized by current and future administrations.
“Taken at its word, the Espionage Act makes felons of us all,” Wittes said. “There will be no way in principle to distinguish between the prosecution of Assange and the prosecution of just about anyone else — from the New York Times to the guy on the street who reads the newspaper and talks about it.”
Related front page panorama photo credit: Adapted by WhoWhatWhy from Cancillería del Ecuador / Flickr (CC BY-SA 2.0).