WASHINGTON — Charges against Julian Assange, the founder and leader of WikiLeaks, that were unsealed on Thursday brought to a head a long-running debate about whether his actions construed a crime and what prosecuting him would mean for American press freedoms.
Mr. Assange vaulted to global fame in 2010, when his anti-secrecy website began posting archives of secret American military and diplomatic documents leaked by Chelsea Manning, an Army intelligence analyst who had downloaded them from a classified computer network she worked on at her outpost in Iraq. His image became more complicated in 2016, when WikiLeaks published stolen Democratic emails that the Russian government had hacked as part of its covert operation to damage Hillary Clinton and help Donald J. Trump win the presidency.
Throughout that saga, national security and law enforcement officials in both the Obama and the Trump administrations have weighed whether they could charge Mr. Assange with a crime. That debate has raised concerns by press freedom advocates about what any precedent established by his case would mean for First Amendment rights and the future of investigative journalism in the United States.
Why does the case against Mr. Assange raise concerns about press freedoms?
Mr. Assange is not a traditional journalist, but most of what he does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations, like The New York Times, do every day: seek out and publish information that officials would prefer to be kept secret, including classified national security matters, and take steps to protect the confidentiality of sources.
In recent years, prosecutors have begun far more regularly charging officials with leaking information to reporters under the Espionage Act, a World War I-era law. It criminalizes the disclosure of potentially damaging national security secrets to someone not authorized to receive them. On its face, the Espionage Act could also be used to prosecute reporters who publish government secrets.
While many legal scholars believe that prosecuting reporters for doing their jobs would violate the First Amendment, the prospect has never been tested in court because the government has never charged a journalist under that law. The rumblings about prosecuting Mr. Assange raised the possibility that prosecutors could violate that norm and try to establish that publishing government secrets can be a crime.
Was Mr. Assange charged with publishing secrets?
No. When the indictment was unsealed on Thursday, it showed that a grand jury had instead charged Mr. Assange with conspiring with Ms. Manning to illegally hack a government computer to obtain national security information.
Specifically, the indictment said, on March 8, 2010, Mr. Assange agreed to help Ms. Manning try to crack part of an encoded password that would have let her gain access to more information than her own account provided. Prosecutors also cited a chat log from two days later that they said indicated that Mr. Assange had taken steps to act on that conspiracy: He said he had “no luck so far” in trying to crack the password.
So can people concerned about press freedoms rest easy?
Not quite. For now, the case significantly reduces such concerns because it is outside traditional investigative journalism to help sources try to break passcodes so they can illegally hack into government computers.
But some press freedom advocates say they remain concerned. For one thing, the Justice Department could file a superseding indictment, so there is no guarantee that Espionage Act charges will stay out of the case. Under extradition procedures, however, any additional charges would most likely have to come soon — before Britain decides whether to transfer custody of Mr. Assange.
For another, prosecutors cited details that expanded beyond a narrow focus on cracking the passcode and that sounded like typical activities of a journalist. For example, the indictment talks about efforts to conceal conversations by using a special chat service and deleting certain chat logs. It also says Mr. Assange took a step to help Ms. Manning send him the files, by making a special folder for her to upload files.
And it quotes a purported exchange midway through Ms. Manning’s leaks in which she wrote, “After this upload, that’s all I really have got left,” but Mr. Assange replied, “Curious eyes never run dry in my experience.” Several weeks later, according to the indictment, Ms. Manning copied and sent WikiLeaks the diplomatic cables.
The Justice Department’s inclusion of those details as relevant to the case was cause for worry, said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University.
“The indictment and the Justice Department’s press release treat everyday journalistic practices as part of a criminal conspiracy,” he said. “Whether the government will be able to establish a violation of the hacking statute remains to be seen, but it’s very troubling that the indictment sweeps in activities that are not just lawful but essential to press freedom — activities like cultivating sources, protecting sources’ identities and communicating with sources securely.”
Could Mr. Assange be charged later in connection with Russia’s election interference?
It would not be easy.
The Espionage Act does not cover the disclosure of unclassified emails like the Democratic messages, so prosecutors would have to come up with a theory in which publishing them violated some other law. Even if they could find one, a 2001 Supreme Court ruling held that the First Amendment did not permit prosecutors to charge someone with a crime for publishing or broadcasting information so long as no law was broken in acquiring it — even if the source who provided it did something illegal to obtain it.
No one has suggested that the Russians needed or had any help from Mr. Assange in hacking Democrats’ emails. And Mr. Assange has denied knowing who his source was; at the time, Russian military intelligence officers created the fictitious online persona of a hacker calling himself Guccifer 2.0 to disseminate and call attention to the files, although evidence that it was most likely a front for Russian intelligence was broadly discussed.
What about the statute of limitations?
Normally, the statute of limitations prevents prosecutors from charging people with a crime for actions that took place more than five years ago. However, a hacking provision cited in the indictment — intruding into a government computer to obtain national security secrets — has an eight-year limit. A grand jury returned the indictment of Mr. Assange on March 6, 2018, just before the eighth anniversary of the day that Mr. Assange is accused of entering into a conspiracy with Ms. Manning to violate that law.
There is an oddity: As part of the USA Patriot Act after the Sept. 11 attacks, Congress added that provision to a list of crimes that get an eight-year limit under a separate law titled “extension of statute of limitation for certain terrorism offenses.” While Mr. Assange’s case involves national security, it is not about terrorism. The “terrorism” heading most likely makes no legal difference, however — just as prosecutors can use the words of the Espionage Act to charge leakers, not just spies.
Is a trial imminent?
No. Mr. Assange is widely expected to fight extradition to the United States by arguing in British court that his prosecution is politically motivated. That fight and inevitable appeals could take years to play out.
Via the New York Times