I look forward to the upcoming trials of Julian Assange on charges of hacking and probably ultimately to include rape. Joe Gandelman has a small link round-up.

The only other observation I have to make is that Mr. Assange appears to be an obnoxious son-of-a-gun.

The editors of the Washington Post argue that Assange is no journalist:

Mr. Assange is not a free-press hero. Yes, WikiLeaks acquired and published secret government documents, many of them newsworthy, as shown by their subsequent use in newspaper articles (including in The Post). Contrary to the norms of journalism, however, Mr. Assange sometimes obtained such records unethically — including, according to a separate federal indictment unsealed Thursday, by trying to help now-former U.S. Army soldier Chelsea Manning hack into a classified U.S. computer system.

Also unlike real journalists, WikiLeaks dumped material into the public domain without any effort independently to verify its factuality or give named individuals an opportunity to comment. Nor, needless to say, would a real journalist have cooperated with a plot by an authoritarian regime’s intelligence service to harm one U.S. presidential candidate and benefit another.

That’s very much what a trial will determine and why I support that. However, their remarks are not without irony: the WaPo is presently being sued for a failure to verify the factuality of reports they made.

In his Washington Post column David Ignatius remarks:

Because Assange hasn’t shown “calibrated judgment” about what information to share with readers, he isn’t acting as a journalist, Kendall told me. As for the prosecutors’ allegation that Assange facilitated Manning’s hacking of classified information, Kendall added: “People in the press typically are not burglars.”

Lincoln Caplan, a Yale Law scholar who has written widely about journalism, said in an interview that there’s an important distinction between “curating” information, as reporters do, and “dumping” it, as has often been WikiLeaks’ practice.

An intriguing footnote to the Assange case is that as part of a failed plea-bargain negotiation with the Justice Department in 2017, he offered to help vet some highly classified CIA files that WikiLeaks was publishing in a document dump known as “Vault 7.” As I wrote last September, this “risk mitigation” discussion collapsed after WikiLeaks revealed some especially sensitive CIA hacking techniques.

Perhaps Mr. Assange’s trial will shed some light on who is and who is not a journalist.


The editors of the Wall Street Journal point out:

The single-count federal indictment charges that he conspired with then-Army intelligence analyst Bradley (now Chelsea) Manning to commit computer intrusion. The indictment says he offered to help Ms. Manning crack a password stored on Defense Department computers connected to a “U.S. government network used for classified documents and communications.”

It’s notable, and welcome, that Mr. Assange isn’t being charged under the Espionage Act of 1917. Journalists including those at the Wall Street Journal sometimes feel the duty to disclose information in the public interest that governments would rather keep secret. Indicting Mr. Assange merely for releasing classified information could have set a precedent that prosecutors might have used in the future against journalists.

They conclude:

It’s not clear when Mr. Assange will answer to an American court. On Thursday after his arrest, a British court found him guilty of jumping bail, which could land him in jail for a year. There also remains a rape allegation in Sweden. The woman who accused him is now asking Swedish prosecutors to reopen an investigation they dropped in 2017 on grounds that there was nothing Sweden could do given that Mr. Assange was holed up in Ecuador’s London embassy.

Despite his many apologists, Mr. Assange has never been a hero of transparency or democratic accountability. His targets always seem to be democratic institutions or governments, not authoritarians. If he really is such a defender of transparency, he should have no fear of a trial to defend his methods.

I don’t know that the various journalists commenting on this case recognize what thin ice they are skating on. Conspiracy covers a lot of territory.

I also find it rather bizarre that we’re talking about trying someone when the sentence of the individual found guilty of the overt act has already been commuted.

15 comments… add one
  • steve Link

    I think the courts will do their best to try to avoid defining who is a journalist. Could be an appeals question, but I predict it will be ducked if possible.

    Think they will press him on where he obtained the DNC info?


  • PD Shaw Link

    I don’t think there is any legal relevance to whether or not Assange is a journalist. The distinction drawn being drawn by Ignatius is odd. It’s as if we took the job of intelligence and divided into gathering info and producing analysis. (I’m not sure this comparison is helpful, but it does occur to me that this Ignatius’ beat and might explain how he thinks of it)

    Both gathering and publishing are part of journalism, but I can’t imagine it would make any difference if Assange released the information within the gauze of a thin narrative structure, fully sourced. If the information was classified and falls within the protection of the Espionage Act, any person is vulnerable to criminal charges.

  • CuriousOnlooker Link

    This assumes Assange actually gets extradited to the US. The UK will make an example of Assange for skipping bail; but extradition is a different matter – the Labour Party leader and shadow Home Secretary just stated they opposed extradition.

    Theresa May is barely hanging on and if an election was held today – Labour would win.

    I think the odds of extradition maybe as low as 50/50.

  • The reason I think it’s relevant is the conspiracy charge. If Assange is guilty of conspiracy, so are the New York Times and the Washington Post.

  • Andy Link

    The nexus is that Wikileaks and Assange weren’t simply middlemen in providing information to the public – they were active participants in the crime. Wikileaks was acting almost exactly like a handler would for a foreign intelligence service by helping Manning actually commit her crime. This wasn’t just, allegedly, Manning giving info to Wikileaks, it was Manning asking for help in committing a crime and receiving that help.

    All this is far different from what the Wapo or NYT does when it reports on intelligence information.

    Contrast Manning/Wikileaks to Snowden/Glenn Greenwald and Laura Poitras. The difference is that Greenwald and Poitras didn’t, as far as we know, aid Snowden in actually stealing the information. They didn’t groom him as an intelligence asset, tell him what to take, how to take it and how to get away with it (as far as we know). They did help Snowden escape to the loving arms of Russian intelligence and could, in theory, I guess, be criminally liable for aiding a criminal fugitive. I think they are scumbags, but what they did is materially different from what Assange and Wikileaks did with Manning and others.

    And of course, Greenwald runs an actual journalism firm and Poitras is a documentary filmmaker. Wikileaks and Assange are neither.

  • In the past both the NYT and the WaPo have acted as receivers of illegally obtained information. To make their case they must rely on the difference between before the fact and after the fact which IMO is a slender reed.

  • Andy Link

    The difference is that Wikileaks didn’t simply receive the information – they were an active participant in the theft. If Manning had simply done everything on his own and sent the info to Wikileaks, then I don’t think Wikileaks/Assange could be prosecuted. But here the government is alleging that Assange assisted in the actual crime, hence the conspiracy.

  • That’s the difference between being a conspirator before the fact and a conspirator after the fact. Both are conspirators.

    Depending on the jurisdiction that may be deemed an accessory. It seems odd to prosecute the conspirator and not the accessory. Do we prosecute the thief but not the fence who knowingly receives stolen goods?

  • PD Shaw Link

    That WSJ article seems naive in assuming that the conspiracy charge is all that there ever could ever be. A conspiracy charge was probably all they needed to conduct wide-ranging investigation, and if they bring Assange to trial, they will have plenty of opportunity to add additional charges. There are conspiracy offenses under the Espionage Act.

    The Espionage Act of 1917 authorizes criminal prosecution of anyone who communicates protected information, including by publication. In the Pentagon Papers case, the SCOTUS ruled that prior restraint wasn’t appropriate, but left open criminal prosecution. Five of the nine justices appear to have recognized that the NY Times could be prosecuted criminally. The NY Times and its reporters would have available the full protections of due process that weren’t available in the injunction lawsuit, and maybe they could raise Constitutional issues in that proceeding. But I think the case is usually misread. Once the material was published, politics swung against prosecution.

  • PD Shaw Link

    @CuriosOnlooker; if the election were held today, Oddsmaker’s Betting Odds favor Conservatives to have the most seats: Conservatives (1/1); Labour (11/8); LibDems (100/1); Other (16/1).

    I think the issue is more that Conservatives (as well as Labour) might be expected to lose more seats to third-parties. So, it doesn’t seem like May could strengthen her hand, which is already weakened by a coalition. Also, if May calls elections, she is going to be challenged internally.

    All that said, extradition doesn’t always seem easy.

  • CuriousOnlooker Link

    @PD Shaw,

    I think it is likely the British government / courts will extract a US promise to not charge Assange with additional crimes after he is extradited as a condition for Assange’s extradition.

    The reasoning is in this article.

    The summary is the narrowness of the charge is to keep it within the British interpretation of the US-UK extradition treaty. Assange is surely going to argue the narrowness of the charge is a runaround the treaty and the UK courts may need assurances from the US that they will not runaround the treaty if they are to rule against Assange.

    Now the DOJ can always break promises but if that happens the US can kiss goodbye to extraditing anyone else ever again.

    American observers seem ignorant of British feelings about the US-UK extradition treaty and the British political situation.

  • CuriousOnlooker Link

    This is not to defend Assange. It is a reminder this is not all about the US.

  • One of the things the Brits are whining about is the death penalty. We still have the death penalty; they don’t and they don’t want to extradite Assange to the U. S. to face (at this juncture unfiled) charges for which the death penalty might be awarded.

  • CuriousOnlooker Link

    On the British political situation. Here is the (nickname “Tory”) Telegraph summarizing :

    The Tories are polling at the same level as when they were wiped out by Tony Blair in 97.

    I don’t see how a party in power for 10 years, failed to implement its major policy promise, and going through a serious schism (forcing the May to promise to quit) wins an election. The Tories could pull a rabbit out of the hat, but the odds are heavily against it.

  • How does it happen? They don’t like the Tories but they don’t like Labour, either.

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