The Assange indictment

The man from Wikileaks — i.e., Julian Assange — is the subject of a superseding indictment charging him with 17 counts under the Espionage Act along with the original count of conspiracy to commit computer intrusion. I have embedded a copy of the indictment below. Charlie Savage expresses the institutional interest of the New York Times in the case in his story on the indictment:

Julian Assange, the WikiLeaks leader, has been indicted on 17 counts of violating the Espionage Act for his role in obtaining and publishing secret military and diplomatic documents in 2010, the Justice Department announced on Thursday — a novel case that raises profound First Amendment issues.

The new charges were part of an expanded indictment obtained by the Trump administration that significantly raised the stakes of the legal case against Mr. Assange, who is already fighting extradition proceedings in London based on an earlier hacking-related count brought by federal prosecutors in Northern Virginia.

The charges are the latest twist in a career in which Mr. Assange has morphed from a crusader for radical transparency to fugitive from a Swedish sexual assault investigation, to tool of Russia’s election interference, to criminal defendant in the United States.

Mr. Assange vaulted to global fame nearly a decade ago as a champion of openness about what governments secretly do. But with this indictment, he has become the target for a case that could open the door to criminalizing activities that are crucial to American investigative journalists who write about national security matters.

The case has nothing to do with Russia’s election interference in 2016, when Mr. Assange’s organization published Democratic emails stolen by Russia as part of its covert efforts to help elect President Trump. Instead, it focuses on Mr. Assange’s role in the leak of hundreds of thousands of State Department cables and military files by the former Army intelligence analyst Chelsea Manning.

Justice Department officials did not explain why they decided to charge Mr. Assange under the Espionage Act — a step also debated within the Obama administration but ultimately not taken. Although the indictment could establish a precedent that deems actions related to obtaining, and in some cases publishing, state secrets to be criminal, the officials sought to minimize the implications for press freedoms….

The caption on the photograph of Assange that accompanies the story is drawn from a paragraph buried in the story that states the Times’s interest in the case with something approaching hilarious concision: “Though Julian Assange is not a conventional journalist, much of what he does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations do.”

I specifically addressed the Times’s interest in constitutionalizing the right to violate the Espionage Act in the 2006 Weekly Standard column “Exposure.” Does the First Amendment protect the press against liability for espionage? Plot spoiler: I don’t think so, but that is the question.

As I formulated the question back then:

Is the New York Times a law unto itself? When the Times published its December 16 [2005] exposé of the secret National Security Agency electronic surveillance of al Qaeda-related communications, reporters James Risen and Eric Lichtblau noted that they had granted anonymity to the “nearly a dozen current and former officials” who were the sources for the story. Risen and Lichtblau stated that they had granted these sources anonymity “because of the classified nature of the program.” Implicit in the Times’s rationale is the recognition that leaks of such classified information are illegal.

That recognition is, of course, correct. Section 793 of the federal espionage law prohibits authorized persons possessing “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . . ” from disclosing it to persons not entitled to it. Section 798 of the espionage law prohibits the disclosure of classified communications intelligence activities to unauthorized persons “in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States . . . ” The violation of these statutes is a felony. Because their disclosures to the Times may fall within these statues, the “current and former government officials” referred to in the Risen/Lichtblau story sought the promise of confidentiality from the Times to protect their identity.

Assuming that these statutes apply to the leaks involved in the NSA story, has the Times itself violated the statutes and committed a crime? The answer is clearly affirmative. Section 798, for example, makes knowing and willful “publication” of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute– 18 U.S.C. section 2–in willfully helping the leakers publish their disclosures, the Times is as culpable as they are, and punishable as a principal.

Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct?

Having followed my comments on the Times and the Espionage Act, then Lieutenant Tom Cotton copied us on his letter to the editor of the Times in June 2006. The Times didn’t see fit to publish the letter, but we did. Here is then Lieutenant Cotton’s June 2006 letter to then executive editor of the Times Bill Keller and the two Times reporters, complete and unexpurgated, datelined Baghdad:

Dear Messrs. Keller, Lichtblau & Risen:

Congratulations on disclosing our government’s highly classified anti-terrorist-financing program (June 23[, 2006]). I apologize for not writing sooner. But I am a lieutenant in the United States Army and I spent the last four days patrolling one of the more dangerous areas in Iraq. (Alas, operational security and common sense prevent me from even revealing this unclassified location in a private medium like email.)

Unfortunately, as I supervised my soldiers late one night, I heard a booming explosion several miles away. I learned a few hours later that a powerful roadside bomb killed one soldier and severely injured another from my 130-man company. I deeply hope that we can find and kill or capture the terrorists responsible for that bomb. But, of course, these terrorists do not spring from the soil like Plato’s guardians. No, they require financing to obtain mortars and artillery shells, priming explosives, wiring and circuitry, not to mention for training and payments to locals willing to emplace bombs in exchange for a few months’ salary. As your story states, the program was legal, briefed to Congress, supported in the government and financial industry, and very successful.

Not anymore. You may think you have done a public service, but you have gravely endangered the lives of my soldiers and all other soldiers and innocent Iraqis here. Next time I hear that familiar explosion — or next time I feel it — I will wonder whether we could have stopped that bomb had you not instructed terrorists how to evade our financial surveillance.

And, by the way, having graduated from Harvard Law and practiced with a federal appellate judge and two Washington law firms before becoming an infantry officer, I am well-versed in the espionage laws relevant to this story and others — laws you have plainly violated. I hope that my colleagues at the Department of Justice match the courage of my soldiers here and prosecute you and your newspaper to the fullest extent of the law. By the time we return home, maybe you will be in your rightful place: not at the Pulitzer announcements, but behind bars.

Very truly yours,

Tom Cotton
Baghdad, Iraq

This is the issue that the government seeks to downplay and the Times (and others, such as the Wall Street Journal in an excellent editorial today) to raise in the context of the superseding indictment of Assange.

Assange Superseding Indictment by on Scribd

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