The Reporters Committee for Freedom Of The Press reviews Federal Cases Involving Unauthorized Disclosures to the News Media, 1778 to the Present
Read Whole Freedom of Press Document. The section of Julian Assange is shown below
Case: Julian Assange
Obama (case explored and dropped)
Trump (case reopened and indictment pursued)
On April 11, 2019, the Justice Department released a previously sealed indictment charging Assange with one count of conspiracy to violate the Computer Fraud and Abuse Act.
Assange was charged with one count of “conspiracy to commit computer intrusion,” in violation of the following provisions: 18 U.S.C. §§ 371 (the general federal conspiracy statute); 1030(a)(1) (hacking to access classified information); 1030(a)(2) (unauthorized access to government computer); 1030(c)(2)(B)(ii) (sentence enhancement to five years as offense committed in furtherance of Espionage Act violation by Manning).
On May 23, 2019, a federal grand jury in the Eastern District of Virginia returned a superseding indictment against Wikileaks founder Julian Assange, adding 17 counts under the Espionage Act.
Under the superseding indictment, Assange was charged with violating, or conspiring to violate, the following statutes: 18 U.S.C. § 2; § 793 (b)-(g)
There is an ongoing debate among academics and commentators as to whether Wikileaks founder Julian Assange should be considered a “journalist.” That debate is, however, legally irrelevant to the First Amendment issues in the case, and the Assange case is a national security media “leaks” case under the methodology of this survey. Indeed, it’s the first time the government has ever secured an indictment based in part on the act of “pure publication” (i.e., where solicitation or receipt of the information isn’t part of the criminal act). Accordingly, it is included here. When counting the post-2009 leak cases, Reporters Committee lists the Assange case separately, as it does not involve the prosecution of a journalistic source (Manning’s court martial is discussed above). Accordingly, we characterize the cases since 2009 as such: 17 journalistic source prosecutions, one prosecution of a Navy linguist for providing classified documents to a public archive and the 2019 leaks prosecution of Julian Assange, founder of Wikileaks.
Julian Assange is an Australian citizen who founded the website WikiLeaks in 2006. Per its current website, WikiLeaks “specializes in the analysis and publication of large datasets of censored or otherwise restricted official materials involving war, spying and corruption.” In April 2010, the website garnered international attention when it posted a video it dubbed “Collateral Murder” that appeared to show a U.S. military helicopter firing upon and ultimately killing several Iraqi civilians and two journalists in 2007.
Later that year, Wikileaks began posting hundreds of thousands of classified documents on its website relating to the wars in Afghanistan and Iraq. Assange shared these documents with Le Monde, El País, Der Spiegel, the Guardian and the New York Times. These outlets separately edited and published revelations from the documents.
In May 2010, Chelsea Manning, a 25-year old soldier and intelligence analyst, was arrested and charged with passing to WikiLeaks the “Collateral Murder” footage, as well as the 250,000 State Department cables and 470,000 Iraq and Afghanistan battlefield logs. Manning was also accused of sharing filesabout Guantanamo Bay detainees. In July 2013, Manning wassentenced to 35 years in prison after being found guilty of 20 counts (six of which were under the Espionage Act), although she was acquitted of “aiding the enemy.” In January 2017, President Obama commuted Manning’s sentence to time served plus 120 days.
Officials in the Obama administration debated over whether to prosecute Assange in connection with the Manning disclosures. The Obama Justice Department ultimately determined that bringing charges against Assange could threaten press freedom. Utimately. in 2017, then-Attorney General Jeff Sessions asked the U.S. Attorney for the Eastern District of Virginia to revisit the case against Assange.
On April 11, 2019, British police arrested Assange at the Ecuadorian embassy in London, in part based on an extradition request by the United States. The Justice Department then released a previously sealed indictment that charged Assange with one count of conspiracy to violate the Computer Fraud and Abuse Act (“CFAA”).
As explained in a Reporters Committee analysis, the indictment included an allegation that Assange agreed to help Chelsea Manning “crack” a password to a Defense Department computer. The indictment stated that
As explained in a Reporters Committee analysis, the indictment included an allegation that Assange agreed to help Chelsea Manning “crack” a password to a Defense Department computer. The indictment stated that Assange agreed to assist Manning in cracking a password; that Manning sent Assange a “hash” value for someone else’s password; and that Assange said that he tried to crack the password and asked for more information about the password. The Reporters Committee noted at the time that conspiring to crack a password to a Pentagon computer generally is not something that a newsroom lawyer would counsel a reporter to do. However, any prosecution under the CFAA, which imposes liability for accessing a computer “without authorization,” still could raise concerns. Indeed, in unrelated cases, the courts and the government have interpreted the CFAA to include conduct such as consensual password sharing or web scraping by data journalists.
Although the initial CFAA count was relatively limited, on May 23, the Justice Department filed a federal grand jury superseding indictment in the Eastern District of Virginia against Assange.785 The indictment added 17 counts under the Espionage Act to the one count of conspiring to violate the CFAA.
As the Reporters Committee noted in a subsequent analysis, this is only the third time the U.S. government has brought Espionage Act charges against a non-government third party. Counts two through 14 in the indictment stem from allegations that Assange coordinated with Manning on the receipt and publication of classified documents. Assange allegedly violated several parts of § 793 of the Espionage Act along with a violation of 18 U.S.C. § 2. Per these laws, someone who aids, abets, counsels, commands, induces, or procures, or “willfully causes,” an offense to be committed can be punished as the principal offender.
Further, counts 15 through 17 charge that Assange directly violated the Espionage Act when he “communicated” reports from the Afghanistan and Iraq wars, and the State Department cables, “by publishing [the documents] on the internet.” As the Reporters Committee observed, “This is the first time the Justice Department has ever successfully obtained an indictment from a grand jury with Espionage Act charges based exclusively on the act of publication. . .” The analysis noted that “pure publication” is “distinct from either conspiring with a source or aiding and abetting the illegal acquisition of classified information.”
The superseding indictment prompted widespread concern among members of the news media and press freedom advocates. The Reporters Committee called the theory of the case a “dire threat” to newsgathering and the “pure publication” counts a “direct threat to news reporting.”
Finally, the extradition element of this case also could raise concerns. In June 2019, Sajid Javid, the United Kingdom’s home secretary, approved the United States’ extradition request. Though the matter is now before a London court, if extradited, Assange would be brought to the United States to face criminal charges.
The U.S.-U.K. extradition treaty, however, does not permit extradition for “political offenses.” Had the United States charged Assange with an “ordinary crime” like theft or straight hacking, were it found to not be politically motivated, such an offense would likely qualify for extradition. Spying and treason are widely understood, however, to constitute “political offenses.” The concern here is that other countries could overlook a clear exception for “political offenses,” and pressure the United States to extradite political dissidents or journalists who have been critical of hostile regimes. Such a practice would severely threaten press freedom around the world.