On May 23rd the Justice Department returned a superseding indictment against Julian Assange that not only includes and expands on the prior claim stemming from an attempt to hack into the Pentagon’s Secret Internet Protocol Network but adds sixteen additional charges stemming from obtaining and publishing classified information.
Counts 5, 18: Attempted Unauthorized Obtaining and Receiving of National Defense Information; Conspiracy to Commit Computer Intrusion
The original Conspiracy to Commit Computer Intrusion charge is now two counts – one for attempted unauthorized access of National Defense Information and the other for conspiracy to commit computer intrusion with Army Intelligence Analyst Chelsea Manning.
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 stored on United States Department of Defense computers connected to the Secret Internet Protocol Network.
As outlined in our prior post, this indictment did not implicate any great First Amendment concerns since it was focused on the act of conspiring to hack into a government computer and not for publication of any information – i.e., conduct and not speech.
That is not true for the remainder of the indictment which seeks to apply the Espionage Act in a way that has never been successfully applied before.
Counts 2-4, 6-14: Unauthorized Obtaining, Receipt and Disclosure of National Defense Information
As indicated in our prior post, the First Amendment protects a publication using information obtained lawfully even if the source providing the information obtained it unlawfully. Bartnicki v. Vopper, 532 US 514 (2001). The law is unclear and whether an outside party can be liable for conspiring in the disclosure of classified information. (See Congressional Research Service legal analysis below).
In 2005, the Justice Department unsuccessfully indicated two former employees of the American-Israel Political Action Committee (AIPAC) for aiding and abetting the disclosure of classified information concerning U.S. policy on Iran, but ultimately dismissed its claim.
Unlike the AIPAC case, in the indictment, the Justice Department in these 12 counts alleges that Assange “aided, abetted, counseled, induced, procured and willfully caused” Chelsea Manning to disclose classified information including:
- Assessment Briefs for Detainees Held at Guantanamo Bay;
U.S. Department of State cables; and
Iraq Rules of Engagement files.
To highlight the harm caused by the leaks, the indictment notes the presence of documents referencing Wikileaks disclosure in the materials found at Osama bin Laden’s compound.
Counts 15-17: Unauthorized Disclosure of National Defense Information
These counts charge Assange with
unauthorized possession of [classified information regarding Afghanistan, Iraq and State Department cables] containing the names of individuals who risked their safety and freedom providing information to the United States and our allies, communicated the documents containing the names of those sources by publishing them on the Internet.
Unlike the prior counts, Counts 15-17 are based not on the conspiracy with Chelsea Manning by which he “aided, abetted, counseled, induced, procured and willfully caused” her disclosure of classified information, these counts are focused on the mere publication of sensitive information which triggers First Amendment concerns.
First Amendment Issues in New Indictment
Jack Goldsmith explains why it is difficult to differentiate between Assange and the New York Times or Washington Post in Lawfare’s, The U.S. Media Is in the Crosshairs of the New Assange Indictment. Citing the first sentence of the indictment which charges that:
To obtain information to release on the WikiLeaks website, ASSANGE encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to WikiLeaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.
Goldsmith explains, “[t]his is exactly what national security reporters and their news publications often ask government officials or contractors to do.”
It was reported in 2013 that the Obama administration decided not to prosecute Assange because “government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.” Six years later, the Trump administration is going forward with an indictment against Assange that has clear and direct implications for U.S. news organizations, and it is doing so in a highly favorable factual context. I do not think this is an accident. I think the government aims here to push back against U.S. journalists in order to re-raise the bar on publishing classified information that has lowered pretty dramatically since 9/11. If the government succeeds in convicting Assange for some of these charges, it will alter the cost-benefit calculus of U.S. media outlets even if these outlets are themselves never prosecuted. And of course a favorable legal precedent in the Assange case might be used to prosecute U.S. journalists for publishing certain forms of classified information.
The Trump Administration is stating that journalists should not be alarmed by the indictment since Assange is “no journalist”. Elizabeth Goitein, Co-director of the Liberty and National Security Program at the Brennan Center for Justice, offered this in rebuttal:
The new charges could complicate Assange’s extradition from the UK. As The Intercept reports:
The uproar could make it easier for Assange’s lawyers in the U.K. — where he is currently serving a 50-week jail term for violating bail — to argue that he is wanted in the United States primarily for embarrassing the Pentagon and State Department, by publishing true information obtained from a whistleblower, making the charges against him political in nature, rather than criminal.
Some members of Parliament are now urging that the government give priority to Sweden’s request to extradite Assange on sexual assault charges.
The updated indictment is below.