Federal prosecutors have accused WikiLeaks founder Julian Assange of violating the Espionage Act, bringing against him a new, 18-count indictment alleging he unlawfully obtained and disclosed national defence information.
The new charges dramatically raise the stakes of the case both for Assange and the news media, raising questions about the limits of the First Amendment and protections for publishers of classified information.
Prosecutors allege Assange worked with a former Army intelligence analyst to obtain and disseminate classified information — conduct of which many traditional reporters might also be accused. The US government, though, sought to distinguish the anti-secrecy advocate from a traditional reporter.
"Julian Assange is no journalist," said John Demers, the Justice Department's Assistant Attorney General for National Security. He said Assange engaged in "explicit solicitation of classified information."
Assange was previously indicted by a US grand jury over his interactions in 2010 with Chelsea Manning, the former Army intelligence analyst who shared hundreds of thousands of classified war logs and diplomatic papers with WikiLeaks. If convicted, Assange faced a maximum of five years in prison under that conspiracy charge. Each alleged violation of the Espionage Act carries a potential ten-year prison sentence.
But the new charges against Assange carry potential consequences not just for him, but for others who publish classified information, and could change the delicate balance in US law between press freedom and government secrecy. They also raises fresh questions about whether the British courts will view the new charges as justified and worthy of extradition.
Prosecutors alleged in the new indictment that Assange and WikiLeaks "repeatedly encouraged sources with access to classified information to steal it" and give it to the anti-secrecy organisation, posting on its website a "most wanted" list for leaks organised by country and saying the documents must be "likely to have political, diplomatic, ethical or historical impact on release." They alleged that Manning responded to that clarion call, downloading nearly four completely government databases of war reports, Guantanamo Bay detainee assessments and State Department cables and turned them over to WikiLeaks.
The disclosures, prosecutors alleged, contained the names of local Afghans and Iraqis who had given information to the US, as well as other confidential sources for the US government. They said the releases "put innocent people in grave danger simply because they provided information to the United States."
Prosecutors seemed to distinguish Assange from a traditional publisher by his directions to Manning. They alleged, as they had previously, that Assange agreed to help Manning crack a password that might have helped cover their tracks — though the effort was apparently unsuccessful.
Justice Department officials could not immediately point to a successful prosecution of a case comparable to the charges filed against Assange.
In the past decade, prosecutors have increasingly used the Espionage Act to pursue government employees or ex-employees who leak classified information to reporters. The law was originally written during World War I to target spies and traitors, and has been used intermittently since, including when the government prosecuted the source of the so-called Pentagon Papers during the Vietnam War.
First Amendment advocates have expressed concerns that prosecuting Assange could set a dangerous precedent. President Obama's administration declined to charge Assange with a crime out of concern that it would be too difficult to distinguish WikiLeaks from a news organisation.
Floyd Abrams, an expert in First Amendment law, previously told the Post the 101-year-old act has long been viewed by press advocates as a "perpetually loaded gun that could too easily be aimed at the press, with ultimately Supreme Court interpretation unpredictable."
"If it violated the Espionage Act for WikiLeaks to gather information from sources not permitted to release it and then publish it, then what American newspaper could be free from risk?" said Abrams, who practices at Cahill Gordon & Reindel in New York.
Under President Trump the Department of Justice revived its Assange investigation, but when he was charged under seal in 2017 it was with a narrow complaint that sidestepped such concerns by focusing on a single incident of attempted hacking.
Assange is currently in jail in London, where he was arrested in April. The US government has until June 11 to deliver to Britain its case for extradition, a process that could take months or years and be complicated by a rape allegation against Assange in Sweden. Assange, 47, has said he plans to fight efforts to bring him to the United States to face the criminal allegations, filed in federal court in Alexandria, Virginia.
Once the formal extradition request is made by the US, new charges cannot be filed against him by the Justice Department.
Special Counsel Robert S. Mueller III investigated WikiLeaks and its publication of Democratic National Committee emails stolen by the Russian government in 2016. He charged Trump associate Roger Stone with lying to investigators about his attempts to learn more about Assange's plans for those emails. But the charges against Assange do not touch on that activity.
According to that indictment, Assange agreed to help the Army private known then as Bradley Manning crack as a password so she could anonymously access Defense Department data.
At the time, Manning said she had already shared with WikiLeaks "all i really have got left," according to the indictment.
"The factual allegations against Mr. Assange boil down to encouraging a source to provide him information and taking efforts to protect the identity of that source," Assange's defense attorney Barry Pollack said when that charge was unsealed.
Seven years ago, while out on bail after being arrested to answer sexual assault allegations in Sweden, Assange sought asylum in Ecuador's London embassy. The Ecuadorian embassy expelled him in April, leading to his arrest and the unsealing of the initial U.S. indictment.
He was sentenced to 50 weeks behind bars for absconding while on bail. Swedish authorities have reopened the rape case against him, which could delay any US extradition. Assange denies the allegations.
Manning, who served seven years in prison for her disclosures, is now incarcerated in Virginia for refusing to cooperate with the grand jury investigating Assange. A federal judge last week imposed a fine of $500 per day if Manning does not testify within 30 days, and raised the fine to $1,000 per day if she does not testify within 60 days.
She told the judge she "would rather starve to death" than testify.