New U.S. charges against Assange

WikiLeaks founder ac­cused of vi­o­lat­ing Es­pi­onage Act in dis­clos­ing de­fense in­for­ma­tion

The Mercury News Weekend - - FRONT PAGE - By Devlin Bar­rett, Rachel Weiner and Matt Zapo­to­sky

WASHINGTON » Fed­eral pros­e­cu­tors on Thursday ac­cused WikiLeaks founder Julian Assange of vi­o­lat­ing the Es­pi­onage Act, bring­ing against him a new, 18- count in­dict­ment al­leg­ing that he un­law­fully ob­tained and dis­closed na­tional de­fense 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 say Assange worked with a for­mer Army in­tel­li­gence an­a­lyst to ob­tain and dis­sem­i­nate clas­si­fied in­for­ma­tion — con­duct of which many tra­di­tional re­porters might also be ac­cused. Pros­e­cu­tors, 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 U. S. 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 would face a max­i­mum of five years in prison un­der that con­spir­acy charge. The new charges carry

with them a max­i­mum possible sen­tence of 170 years in prison.

The new charges against Assange carry po­ten­tial con­se­quences not just for him but for oth­ers who pub­lish clas­si­fied in­for­ma­tion, and they could lead to a change in the del­i­cate bal­ance in U.S. law be­tween press free­dom and gov­ern­ment se­crecy. They also raise fresh questions about whether the Bri­tish courts will view the new charges as jus­ti­fied and wor­thy of ex­tra­di­tion.

Pros­e­cu­tors say in the new in­dict­ment that Assange and WikiLeaks “re­peat­edly en­cour­aged sources with ac­cess to clas­si­fied in­for­ma­tion to steal it” and give it to the an­ti­se­crecy organizati­on, post­ing on its web­site a “most wanted” list for leaks or­ga­nized by coun­try and say­ing the doc­u­ments must be “likely to have political, diplo­matic, eth­i­cal or his­tor­i­cal im­pact on re­lease.” They said Man­ning re­sponded to that clar­ion call, down­load­ing nearly four 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 U. S., as well as other con­fi­den­tial sources for the U. S. 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 be­cause of 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.

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 it 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 Barack 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 organizati­on.

Floyd Abrams, an ex­pert in First Amend­ment law, pre­vi­ously told The Washington Post that 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 Don­ald Trump, the Depart­ment of Jus­tice re­vived its Assange in­ves­ti­ga­tion, but when the WikiLeaks founder 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 in jail in Lon­don, where he was ar­rested in April. The U. S. gov­ern­ment has until June 11 to de­liver to Bri­tain its case for ex­tra­di­tion, a process that could take months or years and could 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 U. S., new charges can­not be filed against him by the Jus­tice Depart­ment.

Assange

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