Julian Assange Indictment Poses Grave Threats to Free Press

The indictment of Julian Assange unsealed today by the Trump Justice Department poses grave threats to press freedoms, not only in the U.S. but around the world. The charging document and accompanying extradition request from the U.S. government, used by the U.K. police to arrest Assange once Ecuadorofficially withdrew its asylum protection, seeks to criminalize numerous activities at the core of investigative journalism.

So much of what has been reported today about this indictment has been false. Two facts in particular have been utterly distorted by the DOJ and then misreported by numerous media organizations.

The first crucial factabout the indictment is thatits key allegation that Assange did not merely receive classified documents from Chelsea Manning but tried to help hercrack a password in order to cover her tracks is not new. It was long known by the Obama DOJ and wasexplicitly part of Mannings trial, yet the Obama DOJ not exactly renownedfor beingstalwart guardiansof press freedoms concluded that it could not and should not prosecute Assange becauseindicting him would pose serious threats to press freedom. In sum, todays indictment contains no new evidence or facts about Assanges actions; all of it has been known for years.

The other key fact being widely misreported is that the indictment accuses Assange of trying to help Manningobtain accessto documentdatabases to which she had no valid access:i.e., hacking rather than journalism. But the indictment alleges no such thing. Rather, it simply accuses Assange of trying to help Manning log into the Defense Departments computers using a different username so that she could maintain her anonymity while downloading documents in the public interest and then furnish them to WikiLeaks to publish.

In other words, 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.

Thats why the indictment poses such a grave threat to press freedom. It characterizes as a felonymany actions that journalists are not just permitted but required to take in order toconduct 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 claimeven though the indictment contains no such allegation. It merely accuses Assange of trying to help Manning avoid detection. Thats not hacking. Thats called a core obligation of journalism.

The history of this case is vital for understanding what actually happened today. The U.S. government has been determined to indict Julian Assange and WikiLeaks since at least 2010, when the group published hundreds of thousands of war logs and diplomatic cables revealing numerous war crimes and other acts of corruption by the U.S., the U.K., and other governments around the world. To achieve that goal, the Obama DOJ empaneled a grand jury in 2011 and conducted a sweeping investigation into WikiLeaks, Assange, and Manning.

But in 2013, the Obama DOJ concluded that it could not prosecuteAssange in connection with the publication of those documents because there was no way to distinguish what WikiLeaks did from what the New York Times, The Guardian, and numerous media outlets around the world routinely do: namely, work with sources to publish classified documents.

The Obama DOJ tried for years to find evidence to justify a claim that Assange did more than act as a journalist that he, for instance, illegally worked with Manning to steal the documents but found nothing to justify that accusation and thus, never indicted Assange (as noted, the Obama DOJ since at least 2011 was well-aware of the core allegation of todays indictment that Assange tried to help Manning circumvent a password wall so she could use a different username because that was all part of Mannings charges).

So Obama ended eight years in office without indicting Assange or WikiLeaks. Everything regarding Assanges possible indictment changed onlyat the start of the Trump administration. Beginning in early 2017, the most reactionary Trump officialswere determined to do what the Obama DOJ refused to do: indict Assange in connection with publication of the Manning documents.

As the New York Times reported late last year, Soon after he took over as C.I.A. director, [current Secretary of State] Mike Pompeo privately told lawmakers about a new target for American spies: Julian Assange, the founder of WikiLeaks. The Times added thatMr. Pompeo and former Attorney General Jeff Sessions unleashed an aggressive campaign against Mr. Assange, reversing an Obama-era view of WikiLeaks as a journalistic entity.

In April, 2017, Pompeo, while still CIA chief, delivered a deranged speech proclaiming that we have to recognize that we can no longer allow Assange and his colleaguesthe latitude to use free speech values against us. He punctuated his speech with this threat: To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

From the start, the Trump DOJ has made no secret of its desire to criminalize journalism generally. Early in the Trump administration, Sessions explicitly discussed the possibility of prosecuting journalists for publishing classified information. Trump and his key aides were open about how eagerthey were to build on, and escalate, the Obama administrations progress in enabling journalism in the U.S. to be criminalized.

Todays arrest of Assange is clearly the culmination of atwo-year effort by the U.S. government to coerce Ecuador under its new and submissive president, Lenn Moreno to withdraw the asylum protectionit extended to Assange in 2012. Rescinding Assanges asylum would enable the U.K.to arrest Assange on minor bail-jumping charges pending in London and, far more significantly,to rely onan extradition request from the U.S. government to send him to a country to which he has no connection (the U.S.) to stand trialrelating toleaked documents.

Indeed, the Trump administrations motive here is clear. With Ecuador withdrawing its asylum protection and subserviently allowing the U.K. to enter its own embassy to arrest Assange, Assange faced no charges other than a minor bail-jumping charge in the U.K. (Sweden closed its sexual assault investigation not because they concluded Assange was innocent, but because they spent yearsunsuccessfullytrying to extradite him). By indicting Assange and demanding his extradition, it ensures that Assange once he serves his time in a London jailfor bail-jumping will be kept in a British prison for the full year or longer that it takes for the U.S. extradition request, which Assange will certainly contest, to wind its way through the British courts.

The indictment tries to cast itself as charging Assange not withjournalistic activities but with criminal hacking. But it is a thinly disguised pretext for prosecuting Assange for publishing the U.S. governments secret documents while pretending to make it about something else.

Whatever else is true about the indictment, substantial parts ofthe document explicitlycharacterize as criminal exactly the actions that journalists routinely engage in with their sources and thus, constitutes a dangerous attempt to criminalize investigative journalism.

The indictment, for instance, places great emphasis on Assanges alleged encouragement that Manning after she already turned over hundreds of thousands of classified documents try to get more documents for WikiLeaks to publish. The indictment claims that discussions also reflect Assange actively encouraging Manning to provide more information. During an exchange, Manning told Assange that after this upload, thats all I really have got left. To which Assange replied, curious eyes never run dry in my experience.

But encouraging sources to obtain more information is something journalists do routinely. Indeed, it would be a breach of ones journalistic dutiesnot to ask vital sources with access to classified information if they could provide even more information so as to allow more complete reporting. If a source comes to a journalist with information, it is entirely common and expected that the journalist would reply: Can you also get me X, Y, and Z to complete the story or to make it better?As Edward Snowden said this morning, Bob Woodward stated publicly he would have advised me to remain in place and act as a mole.

Investigative journalism in many, if not most, cases, entails a constant back and forth between journalist and source in which the journalist tries to induce the source to provide more classified information, even if doing so is illegal. To include such encouragement as part of a criminal indictment as the Trump DOJ did today is to criminalize the crux of investigative journalism itself, even if the indictment includes other activities you believe fall outside the scope of journalism.

As Northwestern journalism professor Dan Kennedyexplained in The Guardianin2010 whendenouncing as a press freedom threat the Obama DOJs attempts to indict Assange based on the theory thathe 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 theGuardian, 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 Assanges decision to cut the Times out of the latest document dump?

For that matter, I dont see how any news organisation can be said not to have colluded with a source when it receives leaked documents. Didnt the Times collude with Daniel Ellsberg when itreceived the Pentagon Papersfrom him? Yes, there are differences. Ellsberg had finished making copies long before he began working with the Times, whereas Assange may have goaded Manning. But does that really matter?

Most of the reports about the Assange indictment today have falsely suggested that the Trump DOJ discovered some sort of new evidence that proved Assange tried to help Manning hack through a password in order to use a different username to download documents. Aside from the fact that those attempts failed, none of this is new: As the last five paragraphs of this 2011 Politico story demonstrate, that Assange talked to Manning about ways to use a different username so as to avoid detection was part of Mannings trial and waslong known to the Obama DOJ when they decided not to prosecute.

There are onlytwo new events that explain todays indictment of Assange: 1) The Trump administration from the start included authoritarian extremists such as Sessions and Pompeo who do not care in the slightest about press freedom and were determined to criminalize journalism against the U.S., and 2) With Ecuador about to withdraw its asylum protection, the U.S. government needed an excuse to prevent Assange from walking free.

A technical analysis of the indictments claimssimilarly provesthe charge against Assange to be a serious threat to First Amendment press liberties, primarily because it seeks to criminalize what is actually a journalists core duty: helping ones source avoid detection. The indictment deceitfully seeks to cast Assanges efforts to help Manning maintain her anonymity as some sort of sinister hacking attack.

The Defense Department computer that Manning used to download the documents which she then furnished to WikiLeaks waslikely running the Windows operating system. It had multiple user accounts on it, including an account to which Manning had legitimate access. Each account is protected by a password, and Windows computers store a file that contains a list of usernames and password hashes, or scrambled versions of the passwords. Only accounts designated as administrator,a designation Mannings account lacked, have permission to access this file.

The indictment suggests that Manning, in order to access this password file, powered off her computer and then powered it back on, this time booting to a CD running the Linux operating system. From within Linux, she allegedly accessed this file full of password hashes. The indictment alleges that Assange agreed to try to crack one of these password hashes, which, if successful, would recover the original password. With the original password, Manning would be able to log directly into that other users account, which as the indictment puts it would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.

Assange appears to have been unsuccessful in cracking the password. The indictment alleges that Assange indicated that he had been trying to crack the password by stating that he had no luck so far.

Thus, even if one accepts all of the indictments claims as true, Assange was not trying to hack into new document filesto which Manning had no access, but rather trying to help Manning avoid detection as a source. For that reason, the precedent that this case would set would be a devastating blow to investigative journalists andpress freedom everywhere.

Journalists have an ethical obligation to take steps to protect their sources from retaliation, which sometimes includes granting them anonymity andemploying 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 todays 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, thatit 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.

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Julian Assange Indictment Poses Grave Threats to Free Press