Why the Assange Arrest Should Scare Reporters
By Matt Taibbi, Rolling Stone
14 April 19
The WikiLeaks founder will be tried in a real court for one thing, but for
something else in the court of public opinion
Julian Assange was arrested in England on Thursday. Though nothing has been
announced, there are reports he may be extradited to the United States to
face charges related to Obama-era actions.
Here's the Washington Post on the subject of prosecuting Assange:
"A conviction would also cause collateral damage to American media freedoms.
It is difficult to distinguish Assange or WikiLeaks from The Washington
Post."
That passage is from a 2011 editorial, "Why the U.S. Shouldn't Try Julian
Assange."
The Post editorial of years back is still relevant because Assange is being
tried for an "offense" almost a decade old. What's changed since is the
public perception of him, and in a supreme irony it will be the government
of Donald "I love WikiLeaks" Trump benefiting from a trick of time, to rally
public support for a prosecution that officials hesitated to push in the
Obama years.
Much of the American media audience views the arrested WikiLeaks founder
through the lens of the 2016 election, after which he was denounced as a
Russian cutout who threw an election for Trump.
But the current indictment is the extension of a years-long effort,
pre-dating Trump, to construct a legal argument against someone who releases
embarrassing secrets.
Barack Obama's Attorney General, Eric Holder, said as far back as 2010 the
WikiLeaks founder was the focus of an "active, ongoing criminal
investigation." Assange at the time had won, or was en route to winning, a
pile of journalism prizes for releasing embarrassing classified information
about many governments, including the infamous "Collateral Murder" video
delivered by Chelsea Manning. The video showed a helicopter attack in Iraq
which among other things resulted in the deaths of two Reuters reporters.
Last year, we reported a rumored American criminal case against Assange was
not expected to have anything to do with 2016, Russians, or DNC emails. This
turned out to be the case, as the exact charge is for conspiracy, with
Chelsea Manning, to hack into a "classified U.S. government computer."
The indictment unveiled today falls just short of a full frontal attack on
press freedoms only because it indicts on something like a technicality:
specifically, an accusation that Assange tried (and, seemingly, failed) to
help Manning crack a government password.
For this reason, the language of the indictment underwhelmed some legal
experts who had expressed concerns about the speech ramifications of this
case before.
"There's a gray area here," says University of Texas law professor Steve
Vladeck. "But the government at least tries to put this at the far end of
the gray area."
Not everyone agreed. Assange lawyer Barry Pollock said the allegations "boil
down to encouraging a source to provide him information and taking efforts
to protect the identify of that source."
"The weakness of the US charge against Assange is shocking," tweeted Edward
Snowden. "The allegation he tried (and failed?) to help crack a password
during their world-famous reporting has been public for nearly a decade: it
is the count Obama's DOJ refused to charge, saying it endangered
journalism."
Part of the case clearly describes conduct that exists outside the normal
parameters of press-source interaction, specifically the password issue.
However, the evidence about this part of the conspiracy seems thin, limited
mainly to Assange saying he'd had "no luck so far," apparently in relation
to attempts to crack the password.
The meatier parts of the indictment speak more to normal journalistic
practices. In its press release, the Justice Department noted Assange was
"actively encouraging Manning" to provide more classified information. In
the indictment itself, the government noted Assange told Manning, who said
she had no more secrets to divulge, "curious eyes never run dry."
Also in the indictment: "It is part of the conspiracy that Assange and
Manning took measures to conceal Manning as the source of the disclosure."
Reporters have extremely complicated relationships with sources, especially
whistleblower types like Manning, who are often under extreme stress and
emotionally vulnerable.
At different times, you might counsel the same person both for and against
disclosure. It's proper to work through all the reasons for action in any
direction, including weighing the public's interest, the effect on the
source's conscience and mental health, and personal and professional
consequences.
For this reason, placing criminal penalties on a prosecutor's interpretation
of such interactions will likely put a scare into anyone involved with
national security reporting going forward.
As Ben Wizner of the ACLU put it: "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."
Unfortunately, Assange's case, and the very serious issues it raises, will
be impacted in profound ways by things that took place long after the
alleged offenses, specifically the Russiagate story. It's why some reporters
are less than concerned about the Assange case today.
About that other thing, i.e. Assange's role in the 2016 election:
Not only did this case have nothing to do with Russiagate, but in one of the
odder unreported details of Special Counsel Robert Mueller's investigation,
he never interviewed or attempted to interview Assange. In fact, it appears
none of the 2800 subpoenas, 500 witness interviews, and 500 search warrants
in the Mueller probe targeted Assange or WikiLeaks.
According to WikiLeaks, no one from Mueller's office ever attempted to get a
statement from Assange, any WikiLeaks employee, or any of Assange's lawyers
(the Office of Special Counsel declined comment for this story). A Senate
committee did reach out to Assange last year about the possibility of
testifying, but never followed up.
As Pollock told me in February, "[Assange] has not been contacted by the OSC
or the House." There was a Senate inquiry, he said, but "it was only an
exploratory conversation and has not resulted in any agreement for Mr.
Assange to be interviewed."
Throughout the winter I asked officials and former prosecutors why officials
wouldn't be interested in at least getting a statement from a person
ostensibly at the center of an all-consuming international controversy.
There were many explanations offered, the least curious being that Assange's
earlier charges, assuming they existed, could pose legal and procedural
obstacles.
Now that Assange's extant case has finally been made public, the concern on
that score "dissipates," as one legal expert put it today.
It will therefore be interesting to see if Assange is finally asked about
Russiagate by someone in American officialdom. If he isn't, that will be yet
another curious detail in a case that gets stranger by the minute.
As for Assange's case, coverage by a national press corps that embraced him
at the time of these offenses - and widely re-reported his leaks - will
likely focus on the narrow hacking issue, as if this is not really about
curtailing legitimate journalism.
In reality, it would be hard to find a more extreme example of how deep the
bipartisan consensus runs on expanding the policing of leaks.
Donald Trump, infamously and ridiculously, is a pronounced Twitter fan of
WikiLeaks, even comparing it favorably to the "dishonest media." His Justice
Department's prosecution of Assange seems as counter-intuitive as the
constitutional lawyer Barack Obama's expansion of drone assassination
programs.
Both things happened, though, and we should stop being surprised by them -
even when Donald Trump takes the last step of journey begun by Barack Obama.
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