Why The Assange Indictment Criminalizes Journalism
Here’s the key section of the Assange indictment:
“On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders. Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.”
“Julian Paul Assange did knowingly and intentionally combine, conspire, confederate and agree with other co-conspirators known and unknown to the Grand Jury to commit an offence against the United States, to wit: to knowingly access a computer, without authorization and exceeding authorized access, to obtain information from a department and agency of the United States in furtherance of a criminal act in violation of the laws of the United States, that is, a violation of Title 18, United States Code, Sections 641, 793(c), and 793(e).”
The grounds of the indictment were revealed in chat logs dating from 2010 that were made public. (https://assets.documentcloud.org/documents/886185/pe-123.pdf )
The DOJ has been pressuring Manning to testify against Assange but so far, she has only said that she takes full responsibility for attempting to hack into Department of Defense computers connected to the Secret Internet Protocol Network (used for classified documents and communications). The key exchange in the Chat logs runs as follows:
Nobody (Manning): Any good at IM hash cracking? Nathaniel Frank (Assange): Yes
So essentially Manning asks Assange if he’s good at cracking passwords and Assange says that he is—which is no surprise since he is indeed a computer hacker.
Then somewhat later in the chat log Assange admits to Manning that he has had ‘no luck thus far’ cracking the password.
That’s it. We do not know if Assange cracked the password but whether he did or not, the indictment allegation is that in attempting to crack a password Assange entered into a conspiracy with Manning. The DOJ arrested Manning on March 8 after she refused to testify before a federal grand jury on matters relating to her 2010 disclosure to WikiLeaks. They wanted her to testify that Assange entered into this conspiracy but she refused.
The indictment clearly references the 1917 Espionage Act 793(c) and (e) which state:
(c)Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or
(e)Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
According to Wikipedia the espionage act was "intended to prohibit interference with military operations or recruitment, to prevent insubordination in the military, and to prevent the support of United States enemies during wartime."
But prosecutors have lately been using the Act for something that was never intended: charging hackers with leaking information to reporters. In other words, the Espionage Act is now used to prosecute reporters who publish government secrets. If you add to this a POTUS who would love nothing more than to shut down any newspaper, television or online news site critical of him you begin to grasp just how ominous the Assange indictment has for freedom of the press.
It may be true that what Assange is alleged to have done, (help Manning break a passcode so she could illegally hack into government computers) is outside traditional investigative journalism. However, as Glenn Greenwald has rightly pointed out none of this is new: "It was long known by the Obama DOJ and was explicitly part of Manning’s trial, yet the Obama DOJ – not exactly renowned for being stalwart guardians of press freedoms – concluded it could not and should not prosecute Assange because indicting him would pose serious threats to press freedom. In sum, today’s indictment contains no new evidence or facts about Assange’s actions; all of it has been known for years."
Whatever the current DOJ has in mind the indictment only accuses Assange of "trying to help Manning log into the Defense Department’s computers using a different user name so that she could maintain her anonymity while downloading documents in the public interest and then furnish them to WikiLeaks to publish."
So, in effect, encouraging a source to provide information or taking efforts to protect the identity of that source is called a conspiracy which amounts to a violation of the Espionage Act--which in effect criminalizes what journalists do all the time. It is crucial to understand here that the conspiracy charge is intended as a way of legally sidestepping the First Amendment issue regarding freedom of the press. It does not as many journalists have pointed out. Moreover, if it cannot be proved (which is highly likely), then there is not much left of the case against Assange that was not previously dismissed by the Obama DOJ.
Can Assange can be legally extradited to the US? Not according to Article 4 of the 2003 extradition treaty between the US and the UK : “extradition shall not be granted if the offense for which extradition is requested is a political offense.” In a similar case Home Secretary Theresa May concluded that the UK could not extradite Gary McKinnon, a British hacker who admitted accessing U.S. government computers.