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What to make of the indictment of Julian Assange?
The Justice Department hasn鈥檛 crossed the line that many feared it would: It hasn鈥檛 charged Julian Assange for publishing truthful information about matters of public concern. That kind of prosecution would have been unprecedented in the nation鈥檚 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 isn鈥檛 protected by the First Amendment, and it isn鈥檛 a legitimate part of investigative journalism.
But the indictment is troubling nonetheless. It characterizes as 鈥減art of鈥� 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 鈥淐onspiracy to Commit Computer Intrusion鈥� that was unsealed today may not be the Justice Department鈥檚 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.
It鈥檚 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 wouldn鈥檛 have allowed Manning to access more files than she could already access鈥攐nly 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 prosecution鈥檚 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 Assange鈥檚 alleged crime.
The indictment characterizes everyday journalistic practices as part of a criminal conspiracy. Cultivating a source, protecting a source鈥檚 identity, communicating with a source securely鈥攖he indictment describes all of these activities as the 鈥渕anners and means鈥� 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 鈥渢ook measures to conceal Manning as the source of the disclosure,鈥� but taking measures to protect their sources鈥� identities is something that national-security journalists do all the time, for good reason. It says that Assange created 鈥渁 special folder on a cloud drop box of Wikileaks鈥� 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 鈥渕anners and means鈥� 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 can鈥檛 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 wasn鈥檛 charged with violating the Espionage Act鈥攖he World War I-era law that criminalizes unauthorized dissemination of 鈥渘ational defense information鈥濃�攖he 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. It鈥檚 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 鈥渆ager鈥� to identify the leakers and 鈥渨ould like to nail one to the door as a message.鈥� Evidently Trump wasn鈥檛 satisfied. An appropriate response, Trump told Comey, would involve 鈥減utting reporters in jail.鈥�
This indictment doesn鈥檛 cross that line. But no one should be celebrating this shot across the bow of press freedom.
