With Assange Indictment, Trump DOJ Officially Challenges Press Freedoms
The last two presidential administrations have not been kind to the free press in the United States.
From then-President Obama’s extraordinary attacks on the media, in the form of Espionage Act indictments against whistleblowers, to his predecessor’s present-day assault on journalism, one of the pillars of the First Amendment is weathering one barrage after the next.
While President Trump’s reflexive “fake news” missives often attract the most attention — and nearly instantaneous retorts from many in the media — those verbal assaults may not be the most pressing concern for journalists. In a way, his broadsides conveniently provide cover to Trump’s Department of Justice, which is investigating an alarmingly high amount of leak-related cases.
NBC News reported last week that criminal leak referrals “reached record high levels over the last two years,” with 120 in 2017 alone. Perhaps the most infamous case of Trump’s presidency involves Reality Winner, a National Security Agency (NSA) contractor. Winner was sentenced to more than five years in prison for leaking information about Russian hacking attempts into U.S. voting systems during the 2016 election.
Last week’s indictment against WikiLeaks founder Julian Assange has press freedom groups yet again crying foul.
Assange, who has been living in the Ecuadorian embassy in London for the last seven years, had his asylum terminated, effectively exposing him to U.K. authorities. Assange took refuge in 2012 amid sexual assault allegations in Sweden, which he has denied. Although Swedish prosecutors dropped the investigation in May 2017, they left the door open to resume the probe if he were to “make himself available” to Swedish courts.
On Thursday, police carried Assange out of the embassy and into an awaiting police van. Shortly after, the Department of Justice publicly charged the WikiLeaks creator with a conspiracy computer charge — allegations stemming from whistleblower Chelsea Manning’s explosive disclosures nearly a decade ago.
After his arrest, federal authorities in the United States unsealed an indictment accusing Assange of conspiring with Manning to help conceal her identity by allegedly attempting to break a password.
The Justice Department alleges that by assisting Manning in attempting to crack the password, Assange was willfully helping her evade detection. Investigators also accused the WikiLeaks founder of encouraging Manning to provide more documents after she acknowledged in a web chat that Guantanamo Bay detainee reports would be her final upload.
As apparent proof of Assange’s appetite for more information, the indictment quotes him allegedly telling Manning: “curious eyes never run dry in my experience.”
Press freedom groups argue that much of what’s been alleged is standard practice among investigative journalists, and sets a troubling precedent.
Essentially their argument boils down to this: If Assange can be indicted for trying to help Manning evade detection, encouraging her to pass along more information, or using an encrypted chat to communicate (in this case, Jabber), then what’s to stop investigative journalists from traditional outlets, such as The New York Times or Washington Post, from being in legal jeopardy?
Trevor Timm, co-founder and executive director of the nonprofit Freedom of the Press Foundation, said, “While the Trump administration has so far not attempted to explicitly declare the act of publishing illegal, a core part of its argument would criminalize many common journalist-source interactions that reporters rely on all the time.”
Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy & Technology Project, said, “Any prosecution by the United States of Mr. Assange for Wikileaks’ publishing operations would be unprecedented and unconstitutional, and would open the door to criminal investigations of other news organizations.”
While agreeing that some of the central allegations in Assange’s indictment “describe very common journalistic behavior,” the nonprofit Electronic Frontier Foundation (EFF) noted that leaks are a “vital part of the free flow of information that is essential to our democracy.”
It’s worth noting that one of the key allegations — that Assange tried to hack a password (and was apparently not successful) — has been publicly known for some time. The details emerged during closing arguments in Manning’s court martial in 2011. At the same time, the Obama administration was conducting its own investigation into Assange but declined to charge him, apparently concluding that doing so would be tantamount to criminalizing journalism.
“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” former Justice Department spokesman Matthew Miller said in November 2013. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”
Of course, many press freedom advocates note that charging a whistleblower is equally disconcerting, because it chills reporting. And the Obama administration was especially prolific at bringing forth leak indictments — having charged more whistleblowers under the Espionage Act than all other administrations combined.
Assange and WikiLeaks rose to prominence yet again in 2016 when it released Democratic National Committee emails allegedly hacked by Russian operatives. As a result, WikiLeaks — and by extension, Assange — wasn’t only a pariah of American national security hawks, but the entire neoliberal establishment. Hillary Clinton, the target of the document dump, referred to the 2010 disclosures as an attack “on the international community.”
Clinton, who served as Secretary of State when U.S. State Department cables and other documents were released by WikiLeaks, seemed to endorse the Assange indictment.
“I think it is clear from the indictment that came out it’s not about punishing journalism, it is about assisting the hacking of a military computer to steal information from the United States government, and look, I’ll wait and see what happens with the charges and how it proceeds, but he skipped bail in the U.K.,” Clinton said during an event in New York last week.
“The bottom line is he has to answer for what he has done, at least as it’s been charged,” she added.
On the campaign trail, then-candidate Trump was effusive when mentioning WikiLeaks. But the language coming from the Trump camp used to describe WikiLeaks took a sharp turn after Trump was elected. Perhaps the most incendiary comment came from then-CIA Director Mike Pompeo, now Secretary of State, who referred to the group as a “hostile intelligence service.”
In April 2017, Pompeo’s fellow hawk, then-U.S. Attorney General Jeff Sessions, said arresting Assange was a “priority,” according to CNN.
“We are going to step up our effort and already are stepping up our efforts on all leaks,” he reportedly said. “This is a matter that’s gone beyond anything I’m aware of. We have professionals that have been in the security business of the United States for many years that are shocked by the number of leaks and some of them are quite serious. So yes, it is a priority. We’ve already begun to step up our efforts and whenever a case can be made, we will seek to put some people in jail.”
Assange may not be in U.S. custody just yet, but Trump’s DOJ took a decisive and deeply controversial step last week by charging a man who has been an irritant for nearly a decade. Meanwhile, Manning, who was jailed for seven years before her sentence was commuted by Obama in 2016, has been imprisoned yet again, this time for refusing to testify in a WikiLeaks-related grand jury.
Manning has been hailed by some as the most important whistleblower since Daniel Ellsberg, the famed Pentagon Papers leaker. Her method of disseminating the documents — via WikiLeaks — created a new phenomenon in journalism, one in which a non-traditional media organization was publishing documents en masse.
All these years later, the questions it raised haven’t been satisfactorily resolved. And the public debate over Assange’s role remains as tense as ever.
Meanwhile, the fate of a truly free and vibrant press, one that is completely free of governmental overreach, hangs in the balance.