By Frank Snepp
Peabody Award-winning journalist, ex-CIA whistleblower
As all the world knows, Ecuadoran diplomats recently ejected Julian Assange, the father of Wikileaks, from their embassy in London where he’s been holed up like a fugitive monk for the past seven years. They withdrew asylum privileges, which had allowed him to avoid being hauled off to Sweden to face sexual misconduct charges, and even invited British police to enter the embassy to arrest him. The Trump Justice Department promptly unsealed a year-old conspiracy indictment alleging a computer crime and is seeking to have him transferred to the U. S. for trial.
On its surface the indictment looks like a narrowly crafted attempt to ding Assange for a simple trade-craft offense. Its focus is an alleged agreement he made with leaker Chelsea Manning back in 2010 to help her decipher a password for a highly restricted Defense Department computer. But there is a Trojan Horse aspect to the indictment that seems designed to facilitate something far more sinister, a sneak attack on the First Amendment itself.
Buried in its six pages are legal arguments, which if accepted by the court, would severely cripple the press’ ability to expose Presidential wrongdoing, especially when it’s classified Top Secret.
Assange’s lawyers are attempting to stretch First Amendment press protections to cover his flank. They would like us to believe his alleged complicity with Manning in picking the lock on government databases is just what any journalist does. Few journalists would agree.
Nor does it help that Assange is a less than sympathetic persona. His flirtation with Russian operatives, and WikiLeaks’ role in surfacing the hacked DNC emails in 2016 make even First Amendment purists uneasy.
But that’s why the indictment and its hidden agenda are so dangerous. Well-meaning folk who might normally rise up in protest against any hint of government overreach, especially in the free speech area, may hold their noses and turn away this time.
Journalistic waffle room:
To understand why the indictment is such a ninja play, you have to appreciate what reporters have been relatively free to do when it comes to airing official secrets.
As a general rule, publishing such confidences, and even ones illegally obtained by a helpful mole, is not against the law. Various Supreme Court decisions, dating from 1979, carve out this exception and justify it on First Amendment free-speech/free-press grounds.
In practical terms, this means: if you’re a journalist and merely receive purloined secrets, you are home free or close to it. If you encourage a non-journalistic source to steal the goods but stay clear of the theft yourself, you are on shakier footing but still safe, provided the encouragement you give is arms-length and advisory and does not include actual safe-cracking equipment.
But if you overstep these muzzy lines and actively join the source in busting out the family jewels, you are in deep trouble, at the short end of First Amendment safeguards and liable to prosecution under a variety of laws. These include the espionage statutes, Federal prohibitions against the theft of government property, and even contractual precedents that create liability for anyone who helps the signatory of a government secrecy agreement breach it.
If you study the Assange indictment closely, you will find that its authors thread the needle with infinite care, to avoid First Amendment snags and to keep the action focused on an ostensible workbench problem. Even so, the warning signs are there, woven into the fabric.
Ancient history:
The single count against Assange traces back to a less turbulent time for him when his most prolific leaker was Chelsea Manning, then an Army Private known as Bradley Manning. This would-be whistleblower, who had begun sharing U.S. military and diplomatic secrets with him because of angst over American foreign policy, needed help in decoding a complicated password keyed to an ultra-secret government computer system. With the password in hand she would have been able to roam undetected through classified databases beyond her own approved reach.
The charge reads: “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…used for classified documents and communications…”
Records from Manning’s own eventual court martial, logs of online chats between her and Assange, fill in crucial details. Excerpts appear in the indictment. They quote her as telling Assange on March 8, 2010, she is all leaked out, that she is “throwing everything” at him that she’s been able to find on detainee reports from the U.S. prison at Guantanamo Bay. “After this upload,” she says, “that’s all I really have got left.”
He replies teasingly: “Curious eyes never run dry in my experience.”
She then asks for his help in cracking a password belonging to someone else. His comeback: “Yes.” She responds by sending him a fragment of it which she’s pirated from the rightful owner, using “special software.” Once Assange receives it, he replies: “Passed it on to our guy.”
Two days later – according to the prosecutors’ summary — he asks Manning for “more information” and lets on to her that “he had been trying to crack the password” based on the fragment but “had no luck so far.”
The indictment does not specify whether Assange’s “guy” ever figured out the entire password. But it seems that Manning did continue her scavenging. “On March 28, 2010 and April 9, 2010,” according to the indictment, “Manning used a United States Department of Defense computer to download the U.S. Department of State cables that Wikileaks later released publicly.”
We’re led to understand that if the decoding had succeeded, Manning’s access and capacity for hidden mischief would have been greatly enhanced. “Cracking the password,” the prosecutors argue, “would have allowed Manning to log into 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…”
Lawyer Barry Pollack, who is defending Assange, insists his client’s actions were no different from what any journalist might do to protect the identity of a confidential source. “The factual allegations against Mr. Assange,” he remarked in a press statement, “boil down to encouraging a source to provide him with information and taking efforts to protect the identity of that source.”
Having practiced journalism for the past thirty years, I find this argument a Pinocchio-size stretch – assuming the pertinent court records are accurate. It is one thing to keep a source’s name out of your reporting notes and final news story and thus immunize him/her against retaliation. It is quite another to attempt to manipulate a computer password and allow someone else to tinker with it as well, so your source can then dip back into the treasure chest and keep on pilfering without leaving fingerprints.
And who the heck is Assange referring to when he acknowledges looping in “our guy” to help crack the password? Are we talking Russians here?
In the months preceding this pivotal moment (the time frame has never been precisely determined) Manning had lifted other secrets from other military computers, and leaked them to Assange at Wikileaks, where they were published. The bonanza included “hundreds of thousands” of confidential Iraq and Afghan war backgrounders.
None was classified higher than “Secret.” But, once discovered, she was prosecuted for espionage and in 2013 received a thirty-five-year prison sentence. President Obama commuted it in 2017, apparently out of humanitarian concern for her deteriorating mental state. Manning had undergone a gender change in prison and suffered harassment from other inmates.
A short while ago, she was summoned to testify before a grand jury still active in the Assange case. She is now in jail for clamming up.
Ever since the Manning trial, prosecutors have been scrambling for ways to nail Assange himself, and the repute he’s enjoyed among free speech and internet privacy advocates is slipping. Almost without exception U.S. intelligence professionals have come to loath him for what they see as his rank partisanship and hypocrisy, his bias in exposing U.S. secrets on a first-come basis and his callous propensity for splashing privacy-busting data across the internet. Many will never forgive him for his admitted role in the care and feeding of Edward Snowden, now holed up in Moscow. Some of my own CIA contacts believe Assange had a significant hand in weaponizing Snowden’s stolen secrets, planting them where they would do the most damage, and orchestrating a cyber and media campaign on his behalf. In their eyes these actions served as an inspirational template for what the Russians later did for Trump.
Yet, despite all this, the Justice Department has been hesitant to act against Assange or Wikileaks for fear of offending the First Amendment and all the immunities it is said to confer on journalists, even dodgy ones like him. This calculus began to shift after Wikileaks disseminated the DNC emails in 2016, and the break point came the following year when the website showcased a hijacked stash of hugely sensitive CIA cyber secrets. The current indictment is the product of months of careful strategizing designed to end-run the First Amendment complications that inevitably come with any case against Assange.
So formidable are these complications they may help explain why Special Counsel Robert Mueller failed to “establish” a Trump connection to the Russian intelligence officers indicted for allegedly breaching the DNC computers.
In his filings against them, he claimed that Wikileaks – “Organization 1” in his parlance – had discussed publication of the pilfered emails with an online entity associated with the hackers. According to media reports and other court documents, Donald Trump Jr. and campaign adviser Roger Stone allegedly communicated with Wikileaks about the email postings.
Mueller, according to his own briefs, probed this churn for evidence of a conspiracy extending beyond the Russian actors. But any effort to lever such evidence from Assange and Wikileaks would likely have run up against the same free speech issues that dog the current indictment against him. It’s not hard to imagine Mueller simply throwing up his hands in frustration and leaving Assange for another day. Ironically, the First Amendment may have helped spare Trump his worst embarrassment.
Open Season on the Press:
Under extradition law, which comes into play here because Assange is being held by British authorities, prosecutors had to forego any charges that might appear politically motivated. Hence they say nothing in the indictment about Wikileaks’ interaction with Russian entities or any Assange excess that might chafe political nerves.
They were also required to spell out for their British counterparts the criminal offenses for which they are seeking Assange’s extradition, and they are prohibited from layering on entirely new ones after he’s on American soil.
But James Goodale, the First Amendment guru who argued for The New York Times in the Pentagon Papers case, says there’s a gap in this firewall. Writing for The Hill, he notes that prosecutors can, after Assange is in their hands, bring additional charges, beyond those in the indictment, “based on the same facts as the offense for which extradition was granted.”
Now, that’s a loophole if there ever was one.
Will prosecutors try to exploit it?
In fact they are already half-way there. They are careful in the indictment to cast the password-busting scheme as part of a larger conspiracy, a kind of gateway offense which, they say, was “in furtherance of a criminal act in violation of the laws of the United States,” They specifically name the U.S. statutes covering espionage and theft of government property, as well hacking and related conspiracies.
Giving a further clue to their larger intentions, they single out “as part of the conspiracy” a lot of activity on Assange’s part that is simply everyday journalism.
We’re told, for instance: “Assange knew that Manning was providing WikiLeaks with classified records.” That doesn’t sound out of bounds for any reporter. Wouldn’t Rachel Maddow or Chris Cuomo try to verify the classification status of any leaked government record?
We learn: “Assange and Manning took measures to conceal Manning as a source of the disclosure of classified records”
As far as this statement goes, there’s nothing wrong here from a journalistic standpoint. Any reporter would be justified, indeed obligated, to try to preserve the anonymity of a confidential source (though, in Assange’s case, the effort veered into password tampering and that isn’t copacetic).
The prosecutors also observe reprovingly that “Assange and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records.” But surely they know that every major news outlet maintains an online drop box system to receive tips from named or anonymous sources.
In a final provocative tweak, they recall that Manning herself signed a government non-disclosure agreement. This seemingly gratuitous revelation should set off alarms, as I should know. In the late 1970’s the Justice Department prosecuted me for writing a CIA memoir without official approval, claiming I’d violated a non-disclosure pact. They also considered going after my publisher as an accessory to that “contractual” breach. They dropped this notion long before the case reached the Supreme Court, because prosecuting a publisher would have sorely tested First Amendment orthodoxy. But the legal theories under which they were operating remain alive and well, and the very mention of Manning’s NDA in the Assange indictment suggests the past may come back to haunt.
In short, the government’s lawyers, all of them from the CIA/Pentagon-friendly Eastern District of Virginia (where I was trounced) are loading up all legal cannons available to them to pulverize Assange.
Carried to the limits, the case could eviscerate free speech protections for everybody else in the secrets-publishing business, no matter how responsible or by-the-book they are in terms of commonly accepted journalistic practice.
Former Times lawyer Goodale calls the indictment against Assange “a snare and a delusion” and he warns that if the government scores a win, “it will criminalize the news-gathering process and will be a precedent for future cases concerning leaks.”