The indictment [of Julian Assange] characterizes as a felony many actions that journalists are not just permitted but required to take in order to conduct sensitive reporting in the digital age.
By Glenn Greenwald, Micah lee
Published on The Intercept, Apr 12 2019
The indictment of Julian Assange unsealed today by the Trump Justice Department poses grave threats to press freedoms, not only in the U.S. but around the world. The charging document and accompanying extradition request from the U.S. Government, used by the U.K. police to arrest Assange once Ecuador officially withdrew its asylum protection, seeks to criminalize numerous activities at the core of investigative journalism.
So much of what has been reported today about this indictment has been false. Two facts in particular have been utterly distorted by the DOJ and then misreported by numerous media organizations.
The first crucial fact about the indictment is that its key allegation – that Assange did not merely receive classified documents from Chelsea Manning but tried to help her crack a password in order to cover her tracks – is not 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.
The other key fact being widely misreported is that the indictment accuses Assange of trying to help Manning obtain access to document databases to which she had no valid access: i.e., hacking rather than journalism. But the indictment alleges no such thing. Rather, it simply 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.
In other words, the indictment seeks to criminalize what journalists are not only permitted but ethically required to do: take steps to help their sources maintain their anonymity. As long-time Assange lawyer Barry Pollack put it: “the factual allegations…boil down to encouraging a source to provide him information and taking efforts to protect the identity of that source. Journalists around the world should be deeply troubled by these unprecedented criminal charges.”
That’s why the indictment poses such a grave threat to press freedom. It characterizes as a felony many actions that journalists are not just permitted but required to take in order to conduct sensitive reporting in the digital age.
But because the DOJ issued a press release with a headline that claimed that Assange was accused of “hacking” crimes, media outlets mindlessly repeated this claim even though the indictment contains no such allegation. It merely accuses Assange of trying to help Manning avoid detection. That’s not “hacking.” That’s called a core obligation of journalism.
The history of this case is vital for understanding what actually happened today. The U.S. Government has been determined to indict Julian Assange and WikiLeaks since at least 2010, when the group published hundreds of thousands of war logs and diplomatic cables revealing numerous war crimes and other acts of corruptionby the U.S., the U.K. and other governments around the world. To achieve that goal, the Obama DOJ empaneled a Grand Jury in 2011 and conducted a sweeping investigation into WikiLeaks, Assange and Manning.
But in 2013, the Obama DOJ concluded that it could not prosecute Assange in connection with publication of those documents because there was no way to distinguish what WikiLeaks did from what the New York Times, the Guardian and numerous media outlets around the world routinely do: namely, work with sources to publish classified documents.
The Obama DOJ tried for years to find evidence to justify a claim that Assange did more than act as a journalist – that he, for instance, illegally worked with Manning to steal the documents – but found nothing to justify that accusation and thus never indicted Assange (as noted, the Obama DOJ since at least 2011 was well aware of the core allegation of today’s indictment – that Assange tried to help Manning circumvent a password wall so she could use a different user name – because that was all part of Manning’s charges).
So Obama ended eight years in office without indicting Assange or WikiLeaks. Everything regarding Assange’s possible indictment changed only at the start of the Trump administration. Beginning in early 2017, the most reactionary Trump officials were determined to do what the Obama DOJ refused to do: indict Assange in connection with publication of the Manning documents.
As the New York Times reported late last year, “Soon after he took over as C.I.A. director, [current Secretary of State] Mike Pompeo privately told lawmakers about a new target for American spies: Julian Assange, the founder of WikiLeaks.” The Times added that “Mr. Pompeo and former Attorney General Jeff Sessions unleashed an aggressive campaign against Mr. Assange, reversing an Obama-era view of WikiLeaks as a journalistic entity.”
In April, 2017, Pompeo, while still CIA chief, delivered a deranged speech proclaiming that “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” He punctuated his speech with this threat: “To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.”
From the start, the Trump DOJ made no secret of its desire to criminalize journalism generally. Early in the Trump administration, then-Attorney General Sessions explicitly discussed the possibility of prosecuting journalists for publishing classified information. Trump and his key aides were open about how eager they were to build on, and escalate, the Obama administration’s progress in enabling journalism in the U.S. to be criminalized.
Today’s arrest of Assange is clearly the culmination of two years of efforts by the U.S. Government to coerce Ecuador – under its new and submissive President, Lenin Moreno – to withdraw the asylum protection which that country extended to Assange in 2012. Rescinding Assange’s asylum would enable the U.K. to arrest Assange on minor bail-jumping charges pending in London and, far more significantly, to rely on an extradition request from the U.S. Government to send him to a country to which he has no connection (the U.S.) to stand trial relating to leaked documents.
Indeed, the Trump administration’s motive here is clear. With Ecuador withdrawing its asylum protection and subserviently allowing the U.K. to enter its own embassy to arrest Assange, Assange faced no charges other than a minor bail-jumping charge in the U.K. (Sweden closed its sexual assault investigation not because they concluded Assange was innocent but because they spent years unsuccessfully trying to extradite him). By indicting Assange and demanding his extradition, it ensures that Assange – once he serves his time in a London jail for bail-jumping – will be kept in a British prison for the full year or longer that it takes for the U.S. extradition request, which Assange will certainly contest, to wind its way through the British courts.
The indictment tries to cast itself as charging Assange not with journalistic activities but with criminal hacking. But it is a thinly disguised pretext for prosecuting Assange for publishing the U.S. Government’s secret documents while pretending to make it about something else.
Whatever else is true about the indictment, substantial parts of the document explicitly characterize as criminal exactly the actions that journalists routinely engage in with their sources, and thus constitutes a dangerous attempt to criminalize investigative journalism.
The indictment, for instance, places great emphasis on Assange’s alleged encouragement that Manning – after she already turned over hundreds of thousands of classified documents – try to get more documents for WikiLeaks to publish. The indictment claims that “discussions also reflect Assange actively encouraging Manning to provide more information. During an exchange, Manning told Assange that ‘after this upload, that’s all I really have got left.’ To which Assange replied, ‘curious eyes never run dry in my experience.’”
But encouraging sources to obtain more information is something journalists do routinely. Indeed, it would be a breach of one’s journalistic duties not to ask vital sources with access to classified information if they could provide even more information so as to allow more complete reporting. If a source comes to a journalist with information, it is entirely common and expected that the journalist would reply: can you also get me X, Y and Z to complete the story or to make it better? As Edward Snowden said this morning, “Bob Woodward stated publicly he would have advised me to remain in place and act as a mole.”
Investigative journalism in many, if not most, cases, entails a constant back and forth between journalist and source in which the journalist tries to induce the source to provide more classified information, even if doing so is illegal. To include such “encouragement” as part of a criminal indictment – as the Trump DOJ did today – is to criminalize the crux of investigative journalism itself, even if the indictment includes other activities you believe fall outside the scope of journalism.
As Northwestern Journalism Professor Dan Kennedy explained in the Guardian in 2010 when denouncing as a press freedom threat the Obama DOJ’s attempts to indict Assange based on the theory that he did more than passively receive and publish documents – i.e., that he actively “colluded” with Manning:
The problem is that there is no meaningful distinction to be made. How did the Guardian, equally, not “collude” with WikiLeaks in obtaining the cables? How did the New York Times not “collude” with the Guardian when the Guardian gave the Times a copy following Assange’s decision to cut the Times out of the latest document dump?
For that matter, I don’t see how any news organisation can be said not to have colluded with a source when it receives leaked documents. Didn’t the Times collude with Daniel Ellsberg when it received the Pentagon Papers from him? Yes, there are differences. Ellsberg had finished making copies long before he began working with the Times, whereas Assange may have goaded Manning. But does that really matter?
Most of the reports about the Assange indictment today have falsely suggested that the Trump DOJ discovered some sort of new evidence that proved Assange tried to help Manning hack through a password in order to use a different username to download documents. Aside from the fact that those attempts failed, none of this is new: as the last five paragraphs of this 2011 Politico story demonstrate, that Assange talked to Manning about ways to use a different user name so as to avoid detection was part of Manning’s trial and was long known to the Obama DOJ when they decided not to prosecute.
There are only two new events that explain today’s indictment of Assange: 1) the Trump administration from the start included authoritarian extremists such as Jeff Sessions and Mike Pompeo who do not care in the slightest about press freedom and were determined to criminalize journalism against the U.S.; and 2) with Ecuador about to withdraw its asylum protection, the U.S. Government needed an excuse to prevent Assange from walking free.
A technical analysis of the indictment’s claims similarly proves the charge against Assange to be a serious threat to First Amendment press liberties, primarily because it seeks to criminalize what is actually a journalist’s core duty: helping one’s source avoid detection. The indictment deceitfully seeks to cast Assange’s efforts to help Manning maintain her anonymity as some sort of sinister hacking attack.
The Defense Department computer that Manning used to download the documents which she then furnished to WikiLeaks was likely running the Windows operating system. It had multiple user accounts on it, including an account to which Manning had legitimate access. Each account is protected by a password, and Windows computers store a file that contains a list of usernames and password “hashes,” or scrambled versions of the passwords. Only accounts designated as “administrator,” a designation Manning’s account lacked, have permission to access this file.
The indictment suggests that Manning, in order to access this password file, powered off her computer and then powered it back on, this time booting to a CD running the Linux operating system. From within Linux, she allegedly accessed this file full of password hashes. The indictment alleges that Assange agreed to try to crack one of these password hashes, which, if successful, would recover the original password. With the original password, Manning would be able to log directly into that other user’s account, which – as the indictment puts it – “would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.”
Assange appears to have been unsuccessful in cracking the password. The indictment alleges that “Assange indicated that he had been trying to crack the password by stating that he had ‘no luck so far.’”
Thus, even if one accepts all of the indictment’s claims as true, Assange was not trying to hack into new document files to which Manning had no access but rather trying to help Manning avoid detection as a source. For that reason, the precedent that this case would set would be a devastating blow to investigative journalists and press freedom everywhere.
Journalists have an ethical obligation to take steps to protect their sources from retaliation, which sometimes includes granting them anonymity and employing technical measures to help ensure that their identity is not discovered. When journalists take source protection seriously, they strip metadata and redact information from documents before publishing them if that information could have been used to identify their source; they host cloud-based systems such as SecureDrop, now employed by dozens of major newsrooms around the world, that make it easier and safer for whistleblowers, who may be under surveillance, to send messages and classified documents to journalists without their employers knowing; and they use secure communication tools like Signal, and set them to automatically delete messages.
But today’s indictment of Assange seeks to criminalize exactly these types of source-protection efforts, as it states that “it was part of the conspiracy that Assange and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records containing information related to the national defense of the United States.”
The indictment, in numerous other passages, plainly conflates standard newsroom best practices with a criminal conspiracy. It states, for instance, that “it was part of the conspiracy that Assange and Manning used the ‘Jabber’ online chat service to collaborate on the acquisition and dissemination of the classified records, and to enter into the agreement to crack the password […].” There is no question that using Jabber, or any other encrypted messaging system, to communicate with sources and acquire documents with the intent to publish them, is a completely lawful and standard part of modern investigative journalism. Newsrooms across the world now use similar technologies to communicate securely with their sources and to help their sources avoid detection by the government.
The indictment similarly alleges that “it was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks, including by removing usernames from the disclosed information and deleting chat logs between Assange and Manning.”
Removing metadata that could help identify an anonymous source, such as usernames, is a critical step in protecting sources. Indeed, in 2017, the Intercept published a top secret NSA document claiming that Russian military intelligence played a role in hacking U.S. election infrastructure during the 2016 election. The person accused and convicted of having provided the document, whistleblower Reality Winner, had already been arrested by the time the story was published.
The Intercept was widely criticized when computer security experts discovered that the document included nearly-invisible yellow “printer dots” that track exactly when and where it was printed, which most modern printers add to every document that gets printed. While there’s no evidence that these printer dots contributed to Winner becoming a suspect (the FBI’s affidavit says she was one of only six people who had printed this document, and the only one of those who had email contact with The Intercept), they could have aided an investigation, and the Intercept, as its editor-in-chief acknowledged, should have taken greater care to remove this metadata before publishing the document.
That is because it is not only common but ethically required for a journalist to do everything possible to protect a source from detection. Virtually the entirety of the accusations against Assange in today’s indictment consist of him doing exactly that.
For that reason, the indictment, at its core, clearly seeks to criminalize what investigative journalism necessarily entails in order for to be effective. That is why civil liberties organizations, press freedom groups and political figures from around the world – including Jeremy Corbyn, U.S. Congress members Ro Khanna and Tulsi Gabbard, former Senator Mike Gravel, Brazilian and Indian leftist political parties, and the ACLU – have vehemently denounced today’s arrest of Assange.
Assange is a deeply polarizing figure. That’s almost certainly why the Trump DOJ believes it could get away with indicting him based on a theory that would clearly endanger core journalistic functions: because it hopes that the intense animosity for Assange personally will blind people to the dangers this indictment poses.
But far more important than one’s personal feelings about Assange is the huge step this indictment represents in the Trump administration’s explicitly stated goal to criminalize journalism that involves reporting on classified information. Opposition to that menacing goal does not require admiration or affection for Assange. It simply requires a belief in the critical importance of a free press in a democracy.