U.S. again weigh­ing Wik­iLeaks charges

Jus­tice Dept. look­ing at group’s rev­e­la­tions of diplo­matic, CIA ma­te­ri­als

The Washington Post - - FRONT PAGE - BY MATT ZAPOTOSKY AND ELLEN NAKASHIMA

Fed­eral pros­e­cu­tors are weigh­ing whether to bring crim­i­nal charges against mem­bers of the Wik­iLeaks or­ga­ni­za­tion, tak­ing a sec­ond look at a 2010 leak of diplo­matic ca­bles and mil­i­tary doc­u­ments and in­ves­ti­gat­ing whether the group bears crim­i­nal re­spon­si­bil­ity for the more re­cent rev­e­la­tion of sen­si­tive CIA cy­ber­tools, ac­cord­ing to peo­ple fa­mil­iar with the case.

The Jus­tice Depart­ment un­der Pres­i­dent Barack Obama de­cided not to charge Wik­iLeaks for re­veal­ing some of the gov­ern­ment’s most sen­si­tive se­crets — con­clud­ing that do­ing so would be akin to pros­e­cut­ing a news or­ga­ni­za­tion for pub­lish­ing clas­si­fied in­for­ma­tion. Jus­tice Depart­ment lead­er­ship un­der Pres­i­dent Trump, though, has in­di­cated to pros­e­cu­tors that it is open to tak­ing an­other look at the case, which the Obama ad­min­is­tra­tion did not for­mally close.

It is not clear whether pros­e­cu­tors are also look­ing at Wik­iLeaks’ role last year in pub­lish­ing emails from the Demo­cratic Na­tional Com­mit­tee and the ac­count of Hil­lary Clin­ton cam­paign chair­man John D. Podesta, which U.S. of­fi­cials have said were hacked by the Rus­sian gov­ern­ment. Of­fi­cials have said in­di­vid­u­als “one step” re­moved from the Krem­lin passed the stolen

mes­sages to Wik­iLeaks as part of a broader Rus­sian plot to in­flu­ence the 2016 pres­i­den­tial elec­tion.

Pros­e­cu­tors in re­cent weeks have been draft­ing a memo that con­tem­plates charges against mem­bers of the Wik­iLeaks or­ga­ni­za­tion, pos­si­bly in­clud­ing con­spir­acy, theft of gov­ern­ment prop­erty or vi­o­lat­ing the Es­pi­onage Act, of­fi­cials said. The memo, though, is not com­plete, and any charges against mem­bers of Wik­iLeaks, in­clud­ing founder Ju­lian As­sange, would need ap­proval from the high­est lev­els of the Jus­tice Depart­ment.

Barry J. Pol­lack, an at­tor­ney for As­sange, said Jus­tice Depart­ment of­fi­cials had not dis­cussed with him or As­sange the sta­tus of any investigation, de­spite his re­quests that they do so. He said there was “no le­git­i­mate ba­sis for the Depart­ment of Jus­tice to treat Wik­iLeaks dif­fer­ently than it treats other jour­nal­ists.”

“The fact of the mat­ter is — how­ever frus­trat­ing it might be to who­ever looks bad when in­for­ma­tion is pub­lished — Wik­iLeaks is a pub­lisher, and they are pub­lish­ing truth­ful in­for­ma­tion that is in the pub­lic’s in­ter­est,” Pol­lack said. “Democ­racy thrives be­cause there are in­de­pen­dent jour­nal­ists re­port­ing on what it is that the gov­ern­ment is do­ing.”

Pol­lack noted that the Obama ad­min­is­tra­tion was “no shrink­ing vi­o­let when it came to pur­su­ing re­porters and jour­nal­ists,” a ref­er­ence to the Obama Jus­tice Depart­ment’s re­peated at­tempts to pros­e­cute leak­ers. Pol­lack said he hoped “this ad­min­is­tra­tion will be more re­spect­ful, not less re­spect­ful, of the First Amend­ment than the prior ad­min­is­tra­tion was.”

Pros­e­cu­tors are try­ing to de­ter­mine the ex­tent to which Wik­iLeaks en­cour­aged or di­rected sources to en­gage in il­le­gal ac­tiv­ity.

In March, Wik­iLeaks pub­lished thou­sands of files re­veal­ing se­cret cy­ber-tools used by the CIA to con­vert cell­phones, tele­vi­sions and other or­di­nary de­vices into im­ple­ments of es­pi­onage. The FBI has made sig­nif­i­cant progress in the investigation of the leak, nar­row­ing the list of pos­si­ble sus­pects, of­fi­cials said. The of­fi­cials did not de­scribe Wik­iLeaks’ ex­act role in the case be­yond pub­lish­ing the tools.

Pros­e­cu­tors are also re­ex­am­in­ing the leaks from Chelsea Man­ning, the Army sol­dier who was con­victed in 2013 of re­veal­ing sen­si­tive diplo­matic ca­bles. Man­ning chat­ted with As­sange about a tech­nique to crack a pass­word so Man­ning could log on to a com­puter anony­mously, and that con­ver­sa­tion, which came up dur­ing Man­ning’s court-mar­tial, could be used as ev­i­dence that Wik­iLeaks went be­yond the role of pub­lisher or jour­nal­ist.

But jour­nal­ists rou­tinely em­ploy meth­ods — or tell sources to em­ploy meth­ods — that will help them avoid be­ing iden­ti­fied. Jus­tice Depart­ment of­fi­cials in the pre­vi­ous ad­min­is­tra­tion be­lieved that pros­e­cut­ing As­sange or other mem­bers of Wik­iLeaks could open the door to pros­e­cut­ing news or­ga­ni­za­tions and jour­nal­ists who pub­lished clas­si­fied in­for­ma­tion, and so they opted in­stead to tar­get peo­ple, such as Man­ning, who had clear­ances to ac­cess such in­for­ma­tion and gave it to re­porters.

“Any pros­e­cu­tion that’s based solely on pub­lish­ing stolen clas­si­fied in­for­ma­tion is go­ing to be very dif­fi­cult be­cause of the First Amend­ment prob­lem,” said Michael Vatis, a former Jus­tice Depart­ment of­fi­cial who over­saw cy­ber­crime in­ves­ti­ga­tions and is now a part­ner at Step­toe & Johnson.

Vatis said As­sange’s “ex­act words would mat­ter a lot.” Just ex­press­ing a de­sire to ob­tain clas­si­fied in­for­ma­tion would not be enough to bring charges, he said.

“I think their only re­al­is­tic hope is some con­spir­acy charge based on Wik­iLeaks’ in­volve­ment in the ac­tual hack­ing, not just pub­lish­ing the re­sults of the hack­ing,” Vatis said. “So if they were some­how plan­ning with the hacker to do the hack or plan­ning, in this case, with the con­trac­tor to steal the in­for­ma­tion so that Wik­iLeaks could pub­lish it, then I think they’d have a much stronger chance of suc­cess­fully pros­e­cut­ing them.”

The FBI and the Jus­tice Depart­ment de­clined to com­ment for this ar­ti­cle.

A pros­e­cu­tion of Wik­iLeaks mem­bers would prob­a­bly draw fierce op­po­si­tion from open-gov­ern­ment and free-press or­ga­ni­za­tions that see the group as prac­tic­ing jour­nal­ism, even if its brand is un­con­ven­tional.

Trump has had a fluid re­la­tion­ship with Wik­iLeaks, de­pend­ing largely on how the group’s ac­tions ben­e­fited or harmed him. On the cam­paign trail, when Wik­iLeaks re­leased Podesta’s hacked emails, Trump told a crowd in Penn­syl­va­nia, “I love Wik­iLeaks!” But when it came to the re­lease of the CIA tools, he did not seem so pleased.

“In one case, you’re talk­ing about highly clas­si­fied in­for­ma­tion,” Trump said at a news con­fer­ence ear­lier this year. “In the other case, you’re talk­ing about John Podesta say­ing bad things about the boss.”

CIA Di­rec­tor Mike Pom­peo said dur­ing an ap­pear­ance at the Cen­ter for Strate­gic and In­ter­na­tional Stud­ies this month that it was “time to call out Wik­iLeaks for what it re­ally is: a non-state, hos­tile in­tel­li­gence ser­vice of­ten abet­ted by state ac­tors, like Rus­sia,” and he crit­i­cized prior ad­min­is­tra­tions as hav­ing been “squea­mish” about go­ing af­ter pub­lish­ers of state se­crets.

“They have pre­tended that Amer­ica’s First Amend­ment free­doms shield them from jus­tice. They may have be­lieved that, but they are wrong,” said Pom­peo, who had touted Wik­iLeaks’ ma­te­rial on the DNC when he was a con­gress­man.

In a sign of the Jus­tice Depart­ment’s se­ri­ous­ness in pur­su­ing charges, the U.S. at­tor­ney’s of­fice in the Eastern Dis­trict of Vir­ginia re­cently added a vet­eran prose­cu­tor, As­sis­tant U.S. At­tor­ney James Trump, to the case, of­fi­cials fa­mil­iar with the mat­ter said. James Trump, who is also as­signed to the case against Ed­ward Snow­den, won crim­i­nal con­vic­tions in 2015 against former CIA of­fi­cer Jef­frey Ster­ling, who was charged with leak­ing clas­si­fied in­for­ma­tion to jour­nal­ist James Risen. Pros­e­cu­tors in that case ini­tially sought to com­pel Risen to re­veal his source be­fore they ul­ti­mately backed down.

As­sis­tant U.S. At­tor­ney Tracy Do­herty-McCormick, who ex­am­ined the case un­der the Obama ad­min­is­tra­tion, also has been work­ing on the mat­ter in re­cent weeks, of­fi­cials said.

In a re­cent Wash­ing­ton Post op-ed piece, As­sange said that his group’s mo­tive was “iden­ti­cal to that claimed by the New York Times and The Post — to pub­lish news­wor­thy con­tent.”

“The me­dia has a long his­tory of speak­ing truth to power with pur­loined or leaked ma­te­rial — Jack An­der­son’s re­port­ing on the CIA’s en­list­ment of the Mafia to kill Fidel Cas­tro; the Prov­i­dence Jour­nal-Bulletin’s re­lease of Pres­i­dent Richard Nixon’s stolen tax re­turns; the New York Times’ pub­li­ca­tion of the stolen ‘ Pen­tagon Pa­pers’; and The Post’s tena­cious re­port­ing of Water­gate leaks, to name a few,” As­sange wrote. “I hope his­to­ri­ans place Wik­iLeaks’ pub­li­ca­tions in this pan­theon. Yet there are wide­spread calls to pros­e­cute me.”

He said in a later pod­cast in­ter­view with the In­ter­cept that he be­lieved Jus­tice Depart­ment rules barred a pros­e­cu­tion of him. “If they fol­low those rules, if they fol­low the First Amend­ment, they shouldn’t be pur­su­ing a pros­e­cu­tion,” he said.

Pros­e­cu­tors would also face prac­ti­cal hur­dles in re­viv­ing the case in­volv­ing Man­ning. Years have passed, and wit­nesses’ mem­o­ries are likely to have faded. Pros­e­cu­tors also fear that Man­ning might not be a co­op­er­a­tive wit­ness and that de­fense at­tor­neys might raise ques­tions about her cred­i­bil­ity, of­fi­cials fa­mil­iar with the case said.

Man­ning had been sen­tenced to 35 years in prison, but Obama com­muted her prison term in the wan­ing days of his ad­min­is­tra­tion.

Asked Thurs­day about his con­cern about leaks and whether it was a pri­or­ity for the Jus­tice Depart­ment to ar­rest As­sange, At­tor­ney Gen­eral Jeff Ses­sions said, “We are go­ing to step up our ef­fort and al­ready are step­ping up our ef­forts on all leaks.” He added, “When­ever a case can be made, we will seek to put some peo­ple in jail.”

“Wik­iLeaks is a pub­lisher, and they are pub­lish­ing truth­ful in­for­ma­tion that is in the pub­lic’s in­ter­est.” Barry J. Pol­lack, an at­tor­ney for Wik­iLeaks’ Ju­lian As­sange

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