Officials says the WikiLeaks founder's actions are not protected by law as new charges are laid, writes Eric Tucker.
In a case with significant First Amendment implications, the United States has filed new charges against WikiLeaks founder Julian Assange, accusing him of violating the Espionage Act by publishing secret documents containing the names of confidential military and diplomatic sources.
The Justice Department's 18-count superseding indictment alleges that Assange directed former Army intelligence analyst Chelsea Manning in one of the largest compromises of classified information in US history. It says the WikiLeaks founder, currently in custody in London, damaged national security by publishing documents that harmed the US and its allies and aided its adversaries.
The case comes amid a Justice Department crackdown on national security leaks and raised immediate fear among news media advocates that Assange's actions — including soliciting and publishing classified information — are indistinguishable from what traditional journalists do on a daily basis.
Assange's lawyer, Barry Pollack, said yesterday that the "unprecedented charges" against his client imperil "all journalists in their endeavour to inform the public about actions that have been taken by the US Government".
The Reporters Committee for Freedom of the Press called the case a "dire threat" to media freedom.
But Justice Department officials sought to make clear that they believed Assange's actions weren't protected under the law, though they declined to talk about the policy discussions that led to the indictment. The new Espionage Act charges go far beyond an initial indictment against Assange made public last month that accused him simply of conspiring with Manning to crack a Defence Department computer password.
"Julian Assange is no journalist," said Assistant Attorney General John Demers, the Justice Department's top national security official. "No responsible actor, journalist or otherwise, would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers."
Zachary Terwilliger, the US Attorney in Alexandria, Virginia, where the case was brought, said Assange was charged with illegally soliciting classified information and not simply publishing it. He said that while the indictment alleges that he published hundreds of thousands of documents, it charges him with disclosing only a "narrow set of documents" related to the identities of confidential sources.
Prosecutors sought throughout the document to make a distinction between what Assange did as the founder and "public face" of WikiLeaks and the work of journalists. They noted, for example, that he promoted his site to a convention of European hackers and published a list of the classified information he sought as "The Most Wanted Leaks of 2009". They described how Assange worked with Manning to improperly access Defence Department computers to gain access to thousands of pages of material and encouraged her as she delved through databases for information.
Prosecutors also say the danger wasn't just to the US Government, but to people who worked with it.
Reports from the wars in Afghanistan and Iraq published by Assange included the names of Afghans and Iraqis who provided information to American and coalition forces, while the diplomatic cables he released exposed journalists, religious leaders, human rights advocates and dissidents in repressive countries.
Assange said in an August 2010 interview that it was "regrettable" that sources disclosed by WikiLeaks could be harmed, the indictment says. Later, after a State Department legal adviser informed him of the risk to "countless innocent individuals" compromised by the leaks, Assange said he would work with mainstream news organisations to redact the names of individuals. WikiLeaks did hide some names but then published 250,000 cables a year later without hiding the identities of people named in the papers.
Justice Department officials mulled charges for Assange following the documents' 2010 publication, but were unsure a case would hold up in court and were concerned it could be hard to justify prosecuting him for acts similar to those of a conventional journalist.
The posture changed in the Trump Administration, with former Attorney General Jeff Sessions in 2017 calling Assange's arrest a priority.
When asked at his confirmation hearing if his Justice Department would ever jail journalists, William Barr, the current Attorney General, said there were scenarios when he could envision it as a last resort.
A senior Justice Department official, who spoke on condition of anonymity yesterday, said it had been "looked at by a number of prosecutors" and that prosecutors reached the point "where we believed we had assembled the best case that we could and we presented it to the grand jury".
News organisations around the world widely used the Manning material, which provided previously unavailable information about the Guantanamo Bay detention centre, the wars in Iraq and Afghanistan and international diplomacy. Many reporters found the documents that he released inherently newsworthy.
"These unprecedented charges demonstrate the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists in their endeavour to inform the public about actions ... taken by the US Government," said Pollack, Assange's lawyer.
WikiLeaks played a central role in special counsel Robert Mueller's investigation into possible co-ordination between the Trump campaign and Russia, having published before the 2016 presidential election Democratic emails that were hacked by Russian intelligence officers. The allegations in yesterday's indictment are entirely separate from that episode.
Assange, 47, is in custody in London after being evicted from the Ecuadorean Embassy in April. He has said he would fight any effort to extradite him to the US.
Manning, who was convicted in military court for providing classified documents to WikiLeaks, is currently in a northern Virginia jail on a civil contempt charge. Manning spent two months in the Alexandria Detention Centre beginning in March after she refused to testify to a grand jury investigating WikiLeaks.
Manning has said she believes prosecutors want to question her about the same conduct for which she was convicted at her court-martial. She served seven years of a 35-year military sentence before receiving a commutation from then-President Barack Obama.
For journalists, a cause for concern
The new charges filed against WikiLeaks founder Julian Assange quickly drew alarm from media organisations and others.
The groups are concerned that the US Justice Department is charging Assange for actions that ordinary journalists do routinely in their jobs.
Department officials said they don't view Assange, who founded WikiLeaks in 2006, as a journalist. And they say his actions strayed far outside what the First Amendment protects. Some questions and answers about the new charges:
What exactly do the charges say Assange did?
An indictment made public last month charged Assange with only one count, conspiring with former army intelligence analyst Chelsea Manning to crack a Defence Department computer password.
The 17 additional charges unsealed yesterday go further, accusing him of one of the largest compromises of classified information in US history. The new charges rely on the Espionage Act, which dates to the World War I era and is designed to protect the handling of classified information. Prosecutors say Assange asked for and received hundreds of thousands of secret government documents including military reports and State Department cables in violation of the act.
How do Assange's alleged actions compare with what other journalists do?
The documents say Assange illegally solicited classified information and ignored government warnings that some of the material could be damaging to national security. The Department of Justice says he published identities of people working with the Government without regard to the consequences, something officials say professional journalists would handle differently.
But Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said in an email that the Government's charges "rely almost entirely on conduct that national-security journalists engage in every day". That includes cultivating sources, encouraging sources to share information about government policy and conduct, and receiving and publishing classified information. He called those activities "crucial to investigative journalism, and crucial to the public's ability to understand government policy and conduct". "I don't think there's any way to understand this indictment except as a frontal attack on press freedom," he wrote.
What has been the reaction to the charges?
The American Civil Liberties Union and Reporters Committee for Freedom of the Press were among the organisations and individuals calling the charges a grave threat to press freedom.
"For the first time in the history of our country, the Government has brought criminal charges against a publisher for the publication of truthful information. This is an extraordinary escalation of the Trump Administration's attacks on journalism, and a direct assault on the First Amendment," said Ben Wizner, director of the American Civil Liberties Union's Speech, Privacy, and Technology Project in a statement.
Lisa Lynch, a communications professor at Drew University who has written about WikiLeaks, said the Obama Administration had considered but then backed away from using the Espionage Act to bring charges against Assange. She said the Trump Administration's decision to do so, adding the Espionage Act to its arsenal of tools to prosecute the dissemination of information, "sets the stage for an unprecedented crackdown on press freedom".
What does the Justice Department say in response to those concerns?
The Justice Department, in announcing the new charges, sought to draw a distinction between journalism and Assange's actions.
"Julian Assange is no journalist," said the Justice Department's top national security official, John C. Demers, in announcing the charges, noting that the indictment charges Assange with conspiring to obtain classified information and publishing the names of secret sources that gave critical information to American military forces and diplomats.
"The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department's policy to target them for their reporting," Demers said.
What happens next?
Despite the new charges, Assange is still a long way from a United States courtroom. He's currently in custody in London after being evicted from the Ecuadorean Embassy in April. The US is seeking his extradition.
Bruce D. Brown, the executive director of the Reporters Committee for Freedom of the Press, said there's a real chance Assange never gets brought to the US. Even so, the charges aren't meaningless, he said. He described them as also a warning by the Justice Department to potential whistleblowers.