On May 23, 2019, a federal grand jury in the Eastern District of Virginia returned a superseding indictment against Wikileaks founder Julian Assange. The indictment adds 17 counts under the Espionage Act, a 1917 anti-spying law, to the one count of conspiring to violate the Computer Fraud and Abuse Act (CFAA) that the government unsealed on April 11, 2019.
In our initial analysis of the CFAA case, we observed that the government’s theory would be difficult to apply to trained investigative reporters operating in a newsroom environment with access to experienced legal counsel because it’s hard to see how such reporters would agree to hack a password for another user’s account on a government network. We did, however, caution that investigative reporters could try to hack passwords with respect to data that they own, possess, or control, and that that should never be the basis of a CFAA charge.
The superseding indictment adds an unprecedented level of complexity to the First Amendment issues in the case. The analysis below answers eight of the frequently asked questions this development raises. It then offers commentary on specific elements of the superseding indictment.
Is there any precedent for this?
The government has only twice brought Espionage Act charges against non-government third parties, most notably in the 2005 prosecution of two employees with the American Israel Public Affairs Committee (AIPAC) for allegedly conspiring with Pentagon analyst Larry Franklin to receive and disseminate classified information about Iran. One of those AIPAC employees, Steven Rosen, was charged with both conspiracy and aiding and abetting the crime by helping Franklin fax a document to Rosen’s home. The charges against Rosen and the other employee, Keith Weissman, were ultimately dropped after U.S. District Judge T.S. Ellis, who sits in the Eastern District of Virginia, interpreted the Espionage Act to require an evidentiary threshold for the government’s case that would have been difficult to prove.
The other case was the 1971 Espionage Act prosecution of Daniel Ellsberg’s friend, Anthony Russo, for helping Ellsberg copy the Pentagon Papers, but that case fell apart because of prosecutorial misconduct.
Counts two through 14 in the Assange indictment, all of which are predicated on Assange coordinating with Manning on the receipt and publication of classified documents, are similar to the aiding and abetting charges against Rosen. They allege direct violations of several parts of § 793 of the Espionage Act along with a violation of 18 U.S.C. § 2, which permits someone who aids, abets, counsels, commands, induces, or procures, or “willfully causes,” an offense to be committed to be punished as the principal offender.
But counts 15 through 17 are different. This is the first time the Justice Department has ever successfully obtained an indictment from a grand jury with Espionage Act charges based exclusively on the act of publication (what we’re calling “pure publication” as it is distinct from either conspiring with a source or aiding and abetting the illegal acquisition of classified information). The Reporters Committee addressed these “pure publication” charges in a detailed analysis on Lawfare.
As a point of reference for those who might want to situate the Assange case historically, the Reporters Committee maintains an ongoing survey of federal media leak cases. Based on our investigation, there have been four cases where charges against members of the news media for “pure publication” were contemplated but never brought. These four matters – Stanley Johnson, Amerasia, Operation Holystone, and Operation Ivy Bells – are discussed in our survey.
Also worth emphasizing is that the Pentagon Papers case was an attempt to block, not punish, publication, though the Justice Department investigated reporters for possible Espionage Act violations and, as noted, unsuccessfully prosecuted the leaker, Daniel Ellsberg, and his friend, Anthony Russo. Ellsberg was an employee with government contractor RAND Corporation, while Russo, a private citizen, helped him copy the papers.
Ellsberg and Russo were tried together, and charges were dropped after revelations that the “Plumbers,” the Nixon administration’s ad hoc leak-hunting unit, had burglarized Ellsberg’s psychiatrist’s office. It also came out during the trial that the judge overseeing the case had met with senior Nixon officials and had discussed his possible nomination to head the FBI.
Does it matter if Julian Assange is a journalist?
No. The First Amendment covers everyone. If, for instance, a private citizen had received the Pentagon Papers, recognized their newsworthiness, and published them in a small-town newsletter, the epic 1971 Supreme Court ruling rejecting the government’s injunction should not have turned out differently. The First Amendment also covers non-citizens such as Assange.
Furthermore, there is no journalist carve-out in the Espionage Act. It applies to anyone who obtains or discloses national defense information. So answering the question of whether Assange is a journalist is immaterial in this regard. Indeed, given the risk in permitting the government to determine who is or is not a journalist, advocates of Espionage Act reform often argue for a new protection that would not turn on that question, but would create a “public interest defense” that would protect those who disclose information about, among other things, government misconduct.
That said, there are important practical and ethical differences between Assange and national security reporters, and they should not be minimized. For instance, The New York Times, which received and reported on the same material exfiltrated by Chelsea Manning, omitted the names of informants and, at the request of the government, asked Assange to do the same.
But nothing in the text of the Espionage Act turns on those practical or ethical distinctions, and they would be virtually impossible to articulate in law without opening the door to inconsistent and possibly selective application, including against news entities.
Does the Justice Department’s claims that Assange put informants at risk change things?
Endangering informants isn’t a specially protected subset of national security harm. Rather the government can make broad claims of national security harm going beyond just the naming of informants. In the Wikileaks case, for instance, the Defense Department’s response to the publication of reports from the Iraq War focused first on how the release could encourage additional disclosures, in addition to endangering coalition forces and Iraqis and Afghans working with them. The official statement from the Pentagon on October 22, 2010, began, “We deplore Wikileaks for inducing individuals to break the law, leak classified documents and then cavalierly share that secret information with the world, including our enemies.”
Under the plain terms of the Espionage Act, the government could have always prosecuted Assange, or The New York Times, or Der Spiegel, or The Guardian, irrespective of whether they redacted the names of informants. Rather, the government, until now and as a matter of prosecutorial discretion, has largely refrained from using the Espionage Act against a non-government third party (with the only exceptions being AIPAC’s Rosen and Weissman, and Russo in the Pentagon Papers case).
Again, however, none of this is to minimize the potential for harm caused by the publication of informants’ names. But the decision not to redact those names is an ethical distinction, not a legal one.
Will this go to trial and, if so, when?
It is unclear, but it could take several years, if it happens at all. On May 1, 2019, a British court sentenced Assange to 50 weeks in prison in the United Kingdom for failing to appear in court seven years ago when he took refuge in the Ecuadorian embassy. Additionally, the Swedish government has reopened its investigation into alleged sexual assaults by Assange and mentioned that it could bring a new extradition request. If so, the British home secretary would have to decide which request takes precedence and would base his decision primarily on which is the more serious crime.
Additionally, the U.S.-U.K. extradition treaty does not permit extradition for “political offenses.” The treaty specifies that a series of violent crimes, like kidnapping, will not constitute “political offenses” but none of those are charged in the Assange superseding indictment. And, notwithstanding these carved-out offenses, even they will be non-extraditable if the relevant authority determines the prosecution was politically motivated. Spying and treason are widely understood to constitute “political offenses.”
What’s the possible penalty?
Assange is facing 17 charges under the Espionage Act, each punishable by up to 10 years in prison. It is true that another provision in the Espionage Act, 18 U.S.C. § 794(b), permits the death penalty based solely on the “elicit[ation]” and “public[cation]” of “any . . . information relating to the national defense, which might be useful to the enemy” in a time of war. That is not part of this case.
Why is Assange being charged under the Espionage Act now?
As part of the countries’ extradition agreement, the U.S. was under an obligation to present all of the charges that could form the basis for extradition within sixty days of the request. On May 24, 2019, The Washington Post reported that the case against Assange had been explored and dropped by the Obama administration, in large part because of concerns for how it could impact press freedom. The Washington Post story noted that Attorney General Jeff Sessions, who announced a crackdown on leakers in August 2017, asked the U.S. Attorney’s Office for the Eastern District of Virginia to take another look at the case.
The Washington Post also reported that two prosecutors disagreed with bringing charges because of the difficulty of distinguishing between the receipt and publication of the Manning material by Wikileaks and the receipt and publication of that material by news outlets.
According to The Washington Post: “Part of the concern among Justice Department veterans was that prosecutors had looked at the same evidence for years during the Obama administration and determined such charges were a bad idea, in large part because Assange’s conduct was too similar to that of reporters at established news organizations.”
The statute of limitations on the Espionage Act charges is 10 years.
Does the First Amendment apply to the publication of government secrets?
In 2001, the U.S. Supreme Court decided Bartnicki v. Vopper, which held that federal and state wiretapping laws could not constitutionally be applied against a radio host for broadcasting illegally intercepted conversations, so long as the host was not involved in the illegal interception. Subsequent cases have affirmed First Amendment protections for journalists who publish lawfully acquired material, even if that material was illegally acquired by a source.
Although these cases do not involve the Espionage Act, because the government has never tried to prosecute someone for the pure publication of classified information, we would argue that the government must allege that Assange did something in coordination with Manning that takes him out of these long-standing protections for the publication of truthful information. The indictment’s general allegations begin with three primary claims against Assange — that he “encouraged sources to (i) circumvent legal safeguards on information; (ii) provide that protected information to Wikileaks for public dissemination; and (iii) continue the pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.”
It is true that trained investigative reporters will be more circumspect in how they seek the disclosure of government secrets, but it’s difficult to see how one could legally distinguish less sophisticated journalists from this alleged conduct. National security reporting, in particular, relies on the disclosure and occasional publication of government secrets, as well as developing relationships with sources who have access to classified information and are willing to provide it to journalists.
If those three allegations are enough to bring Assange out of the scope of Bartnicki protections, it would be a challenge, as a legal matter, to draw principled distinctions that could be consistently applied between Assange’s conduct and that of an investigative reporter, sufficient to protect that reporter from a similar Espionage Act claim.
Does it matter whether Assange sought to harm the United States?
If it ever goes to trial, the Assange prosecution will be heard in the same court as the AIPAC case. Part of the reason prosecutors dropped the charges against the AIPAC employees was because of rulings from Judge Ellis on what the government had to prove with respect to their mindset (legally known as the “mens rea,” scienter, or intent requirement).
The intent requirement is arguably the most complicated legal question in the Espionage Act. With respect to Assange, there are two key preliminary points:
- What would be relevant is Assange’s mindset when he was pursuing and publishing the Manning leaks, not any of his more recent activity; and
- Assange is charged not just with violations of 18 U.S.C. § 793(d)-(e), which were the provisions at issue in AIPAC, but also with a violation of § 793(b)-(c), which have a heightened intent requirement in the statute.
Also, there is a distinction in the law between tangible documents or other material and intangible classified information. Assange is charged with the solicitation, receipt and publication of tangible material. Both tangible and intangible information are referred to as “national defense information” or “NDI.” With respect to tangible NDI, § (b) and (c) require a showing that the defendant acted with “intent or reason to believe that the [national defense information] is to be used to the injury of the United States, or to the advantage of any foreign nation.” That will be the intent requirement for counts two through 8.
Counts 9 through 17 all involve the same provisions in § 793 that were at issue in AIPAC, namely subsections (d) and (e). The intent requirement there, at least as formulated in the AIPAC rulings, turns on whether the information is tangible or intangible. Assange is charged with the receipt and publication of tangible material.
With respect to the communication, delivery, or transmission of tangible national defense information, § 793(d) and (e) only require that those offenses be done “willfully.” The AIPAC court found the intent requirement to be met if the government can prove that the act was done “with a bad purpose either to disobey or to disregard the law.” But that just means that the defendant must know that the act is illegal and that the information qualifies as national defense information (in that it is closely held and that its disclosure could harm national security). See United States v. Rosen, 445 F. Supp. 2d 602, 625 (E.D. Va. 2006).
Despite Rosen, it is still an open question with respect to subsections (d) and (e) as to whether the government has to prove some subjective desire to harm U.S. national security or to help a foreign power (and there’s an additional question of whether that foreign power has to be hostile). As Judge Ellis found, it’s likely that, with respect to intangible information, such a showing is required because the text of the statute qualifies the phrase in § 793(d) and (e) “information relating to the national defense,” with the modifier “which information the possessor has reason to believe could be used to the injury of the U.S. or to the advantage of any foreign nation,” similar to subsections (b) and (c). But with tangible material like the reports and cables at issue here, that subjective desire to harm the U.S. or help a foreign power may not apply, and Judge Ellis’s position in Rosen was that all that is required is a showing that (1) the information qualifies as national defense information (it was closely held and disclosure could harm national security), and (2) the leaker knew he or she was breaking the law.
Long story short, the intent questions here are going to be intensely complicated.
The initial indictment in April included only count 18, the conspiracy to violate the CFAA. The “overt act” in furtherance of the alleged conspiracy was that Assange himself agreed to try to crack a password that would have given Assange and Manning access to someone else’s account on SIPRNet, the secure military network handling “secret”-level classified information. That comparatively narrow theory of CFAA liability would have made this a difficult precedent to apply to news outlets, who do not actively participate in hacks to access remote networks.
None of the other charges rely on that password-cracking allegation, and only count 1 is a conspiracy charge (namely, conspiracy to violate subsections 793(b) through (e) of the Espionage Act). Everything else is an alleged direct violation of the Espionage Act based on different aspects of Assange encouraging the disclosure of, receiving, or publishing military logs known as significant activity, or SIGACT, reports; Guantanamo Bay detainee assessment briefs; and State Department cables. Jump to our breakdown of the individual counts.
With the exception of counts 15 through 17, counts 2 through 14 most resemble the AIPAC case, one of only two other cases involving Espionage Act charges against non-government third parties (the Russo prosecution in the Pentagon Papers case being the other). That is, the Justice Department alleges here joint violations of various provisions of the Espionage Act and 18 U.S.C. § 2, which grafts on principal liability to anyone who “aided, abetted, counseled, induced, and procured,” § 2(a), or “willfully caused,” § 2(b), another to violate the law.
In the context of this superseding indictment, the charging language looks like this (from count two on page 19):
It may be noteworthy, however, that the § 2 “principal liability” language here goes further than in the AIPAC case. In the superseding indictment charging the analyst and the two AIPAC employees, the § 2 claims were just “aiding and abetting.”
For instance, the charging language from count three on page 19 of the superseding indictment from the AIPAC case looks like this:
This charge was based on Franklin faxing a document to Rosen on March 17, 2003:
In other words, the AIPAC complaint relied on § 2 to charge Rosen with aiding and abetting the disclosures in addition to the broader conspiracy. The charges against Assange go further by citing the additional actions covered by both paragraphs (a) and (b) of § 2, namely, aiding, abetting, as well as counseling, commanding, inducing or procuring, § 2(a), and willfully causing, § 2(b), an act to be done. The inclusion of these additional verbs seems intended to bolster the government’s theory that Assange’s encouraging Manning to continue to disclose material itself violated the Espionage Act (for instance, the government prominently cites Assange’s “curious eyes never run dry” comment in paragraphs 21, 24, and 27 of the indictment).
As noted above, there are untested questions concerning the scope of protections under Bartnicki v. Vopper, the 2001 Supreme Court decision that holds that when a journalist receives information legally — even if the information was procured illegally by a source — First Amendment protections bar criminal charges against the journalist for publication.
In a case decided by the Fifth Circuit shortly before Bartnicki, Peavy v. WFAA, the court permitted a civil suit under federal and state wiretapping laws to proceed against a television station and its reporter for the use and disclosure of intercepted cordless phone conversations when the reporter had some involvement in directing the scope of the interception.
That said, it is difficult — absent some concrete aid to Manning like the password-cracking agreement — to distinguish the Assange allegations with respect to these Espionage Act and “principal liability” § 2 claims from traditional reporter-source relationship building. Part of the Peavy allegations, for instance, was that the reporter told the couple that was intercepting the calls with a police scanner to record continuously to prevent challenges to the authenticity of the recording. The court found that allegation salient and suggested that a reasonable jury could find that the reporter had therefore “obtained” the interception of portions of the tape that the individuals doing the recording would not have otherwise recorded absent that instruction.
Were that enough to graft principal liability on an investigative reporter for asking a source for specific types of information or documents, the ramifications for press freedom could be severe. Reporters will often reference things they are seeking in a roundabout way to avoid “solicitation” of specific information, but will sometimes ask for particular documents or pieces of information, particularly when they are vetting a piece for accuracy, seeking more context for a disclosure, or assessing potential harm to national security from publication.
In any event, the specific charges against Assange break down as follows:
- One count of conspiracy to violate the Espionage Act, § 793(g);
- Three counts of violating § 2 and § 793(b), which covers anyone who “copies, takes, makes, or obtains” tangible national defense information;
- Three counts of violating § 2 and § 793(c), which covers the receipt of tangible national defense information by anyone knowing or with reason to know that it was procured in violation of the Espionage Act;
- Three counts of violating § 2 and § 793(d), covering the communication, delivery and transmittal of tangible and intangible national information by those with authorized access, where the person has reason to believe that the “information related to the national defense” could be used to the injury of the United States or to the advantage of any foreign nation;
- Three counts of violating § 2 and § 793(e), covering the same activity by someone with unauthorized access to tangible or intangible national defense information;
- Three counts of violating § 793(e) alone based solely on the publication of, respectively, SIGACTs from Afghanistan, SIGACTs from Iraq, and the State Department cables; and,
- The original CFAA conspiracy charge.
Of these charges, counts 15 through 17 are by far the most interesting. They all have the same general structure. The core allegation in count 15 looks like this:
Counts 16 and 17 just substitute in a different description of the documents, but all emphasize that the documents “contain[ed] names of individuals, who risked their safety and freedom by providing information to the United States and our allies” and that Assange “communicated the documents containing names of those sources to all the world by publishing them on the Internet” (emphasis added).
As noted earlier, this is certainly a practical and ethical distinction between Assange and The New York Times, which reported on the same caches of documents but omitted that sensitive information. But it’s not a legal distinction. The government would have to allege harm to national security in any Espionage Act claim against any defendant. There’s no specific provision in the Espionage Act or case law that makes the identification of informants any more or less harmful to national security than the disclosure of other classified information.
This certainly makes Assange look callous and unethical, but it’s not a distinction that would prevent an Espionage Act charge in a future case where the national security harm does not flow from the identification of U.S. informants.
Unlike the CFAA indictment, this is a full-on “speaking indictment” that goes to great lengths to characterize Wikileaks as an “intelligence agency of the people.” This particular theory of liability is perhaps related to then-CIA director Mike Pompeo’s characterization of Wikileaks as a “hostile non-state intelligence agency” in 2017.
The first paragraph of the indictment reads:
The indictment also notes in the next paragraph that Wikileaks, until September 2010, stated, “Wikileaks accepts classified, censored, or otherwise restricted material of political, diplomatic, or ethical significance” (emphasis in indictment). Paragraph three goes on to note that Assange described Wikileaks in a presentation at a hackers’ conference as the “leading disclosure portal for classified, restricted or legally threatened publications.”
Paragraphs 4 through 7 describe WikiLeaks’s “most wanted leaks” list in 2009, which sought material “likely to have political, diplomatic, ethical or historical impact on release . . . and be plausibly obtainable to a well-motivated insider or outsider.”
Paragraph 5 notes that the “most wanted” U.S. leaks include “bulk databases,” including the Intellipedia (a collection of three wikis — one unclassified and two classified), the Central Intelligence Agency’s Open Source Center database, and documents classified to the “secret” level, such as the rules of engagement for the wars in Iraq and Afghanistan (2007 to 2009), operating and interrogation procedures at the Guantanamo Bay prison, documents related to detainees there, detainee interrogation videos, and information about certain weapons systems. The indictment says these materials were on the most wanted list as of November 2009. They are not there now.
Paragraphs 8 through 13 describe Manning’s efforts to search for and download material responsive to Assange’s solicitation. Paragraph 13 notes that Assange removed the “military and intelligence” category from the most-wanted list at the time of Manning’s arrest. Presumably this is to communicate that Assange received those military and intelligence caches from Manning and didn’t need them anymore, but the indictment does not expressly state this point.
Paragraphs 14 through 23 reiterate the password-cracking allegations from the initial indictment (though the password-cracking element is only relevant to count 18, the CFAA conspiracy charge, which requires an “overt act” in furtherance per the general federal conspiracy statute, 18 U.S.C. § 371). Paragraph 21 includes the detail about Assange wanting to mine the CIA’s Open Source Center “entirely,” which was not in the initial indictment.
Paragraphs 29 through 33 are interesting. They appear designed to bolster the “intelligence agency of the people notion” (paragraph 29) and detail the use of an “insurance file” to “defeat prior restraint” (paragraph 32). The gist of the whole section, as articulated in paragraph 29, is that the alleged mission of Wikileaks is to “subvert lawful measures imposed by the U.S. government to safeguard and secure classified information, in order to disclose that information to the public and inspire others with access to do the same.”
The “insurance file” allegations presumably bolster that claim. According the indictment:
According to the next paragraph, Wikileaks tweeted on May 27, 2010, that the insurance file had been sent to over 100,000 people and referred to the file as “our big guns in defeating prior restraint.” According to paragraph 33, the file included information that WikiLeaks intended to publish but without “harm minimization,” meaning without redactions of, for instance, informant names. Assange is quoted in the same paragraph as saying that the insurance file is a “precaution to make sure that sort of material [the data in Wikileaks’s possession] is not going to disappear from history, regardless of the sorts of threats to this organization.”
Paragraphs 35 through 40 include various details on the informants who were identified in both the SIGACTs and the State Department cables.
For instance, paragraph 40(e) reads:
The same section also includes these details:
It is unclear whether the Bin Laden material incorporates details from the disclosures that would have been unavailable in the reporting in the news outlets that had the Manning caches.
Also, without minimizing the threat to informants posed by these disclosures, the indictment does not describe any specific harm that is known to have occurred. That said, the government has detailed a mitigation program it undertook when it learned about the possible disclosures. Reports on the possible damage from the disclosures suggested that they would not have a “significant impact” on U.S. military operations in Afghanistan but that the “lives of cooperating Afghans, Iraqis and foreign interlocutors have been placed at increased risk.”
Finally, paragraphs 41 through 44 attempt to establish that Assange knew about the risk posed by publication. For instance, paragraph 44 reads:
Paragraphs 45 and 46 establish that Assange did not have the authorization to receive, possess or communicate classified information.
The specific counts are:
Count 1: Conspiracy to violate § 793(b)-(e) of the Espionage Act in violation of § 793(g);
Count 2: Violation of § 793(b) and 18 U.S.C. § 2 in connection with Manning obtaining the Guantanamo Bay detainee assessment briefs;
Count 3: Same as count 2, but with the State Department cables;
Count 4: Same as count 2, but with the Iraq rules of engagement files;
Count 5: Attempt to obtain national defense information from SIPRNet in violation of § 793(c) and § 2.
Count 6: Unlawfully obtaining and receiving detainee assessment briefs in violation of § 793(c) and § 2.
Count 7: Same as count 6, but with State Department cables;
Count 8: Same as count 6, but with Iraq rules of engagement files;
Count 9: Causing unlawful disclosure by Manning of detainee assessment briefs in violation of § 793(d) and § 2;
Count 10: Same as count 9, but with State Department cables;
Count 11: Same as count 9, but with Iraq rules of engagement files;
Count 12: Causing Manning to communicate, deliver and transmit the detainee assessment briefs to Assange in violation of § 793(e) and § 2;
Count 13: Same as count 12, but with the State Department cables;
Count 14: Same as count 12, but with the Iraq rules of engagement files;
Count 15: “Pure publication” of the Afghanistan SIGACTs in direct violation of § 793(e);
Count 16: Same as count 15, but with the Iraq SIGACTs;
Count 17: Same as count 15, but with the State Department cables;
Count 18: Conspiracy to violate the Computer Fraud and Abuse Act, 18 U.S.C. §§ 371 (the general conspiracy statute), 1030(a)(1) (the rarely used hacking access-restricted government information provision), 1030(a)(2) (unauthorized access to obtain information from government), and 1030(c)(2)(B)(ii) (establishing 5 year sentence).