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What to make of the indictment of Julian Assange?
The Justice Department hasnât crossed the line that many feared it would: It hasnât charged Julian Assange for publishing truthful information about matters of public concern. That kind of prosecution would have been unprecedented in the nationâs history and would have opened the door to criminal investigations of other publishers. Instead, the indictment accuses Assange of having conspired with Chelsea Manning to hack a government database. Hacking government databases isnât protected by the First Amendment, and it isnât a legitimate part of investigative journalism.
But the indictment is troubling nonetheless. It characterizes as âpart ofâ a criminal conspiracy journalistic activities that are not just lawful but essential to press freedom. And there is reason to be concerned that the charge of âConspiracy to Commit Computer Intrusionâ that was unsealed today may not be the Justice Departmentâs final word on the matter. There are already reports that the government expects to bring additional charges against Assange once his extradition has been completed.
Itâs not clear that the Justice Department will be able to establish a conspiracy to violate the hacking statute, as some . Though Assange allegedly agreed to help Manning crack a password, cracking that password apparently wouldnât have allowed Manning to access more files than she could already accessâonly to access the same set of files under a different username. A few years ago, the Obama administration considered filing charges against Assange but ultimately . From this indictment, we can guess at some of the difficulties that might have led it to abandon the effort.
If the Justice Department had filed an indictment focused more narrowly on the alleged hacking, none of this would warrant much comment. The Justice Department would present its evidence; Assange would defend himself; and few people would raise concerns about the prosecutionâs implications for press freedom. The problem is that the indictment seems to have been drafted not just to justify the prosecution of Assange but to tar legitimate journalistic activities by association with Assangeâs alleged crime.
The indictment characterizes everyday journalistic practices as part of a criminal conspiracy. Cultivating a source, protecting a sourceâs identity, communicating with a source securelyâthe indictment describes all of these activities as the âmanners and meansâ of the conspiracy. The Justice Department says that Assange and Manning communicated using an encrypted chat service, but most national-security journalists communicate with sources using encrypted channels. It says that Assange and Manning âtook measures to conceal Manning as the source of the disclosure,â but taking measures to protect their sourcesâ identities is something that national-security journalists do all the time, for good reason. It says that Assange created âa special folder on a cloud drop box of Wikileaksâ to allow Manning to share files with him, but many major news organizations use SecureDrop and other similar software to allow sources to share files with them securely.
This is to say that much of what the Justice Department characterizes as the âmanners and meansâ of criminal conspiracy is just ordinary, everyday, and constitutionally protected journalism. In fact so much of the indictment is dedicated to describing legitimate journalism that a reader canât help but wonder whether the Justice Department believes the alleged hacking was necessary to support an indictment here, or just sufficient.
The indictment is troubling for another reason, too. While Assange wasnât charged with violating the Espionage Actâthe World War I-era law that criminalizes unauthorized dissemination of ânational defense informationââthe indictment states that the purpose of the conspiracy for which he was charged was to violate the Espionage Act. This raises the question whether this indictment is just an opening salvo aimed at easing the path for extradition, with more substantial charges to be added later. Itâs striking that after years of characterizing Assange as an agent of a hostile intelligence service, and worse, the U.S. government has now charged him only with trying, unsuccessfully, to crack a password.
We knew before this indictment that the current administration was threatening a more aggressive stance toward investigative journalism. James Comey, who was then the FBI director, a February 2017 meeting during which President Trump complained to him about leaks of classified information. Comey told the president that he was âeagerâ to identify the leakers and âwould like to nail one to the door as a message.â Evidently Trump wasnât satisfied. An appropriate response, Trump told Comey, would involve âputting reporters in jail.â
This indictment doesnât cross that line. But no one should be celebrating this shot across the bow of press freedom.