By Kent R. Kroeger (April 13, 2019)
The mainstream media and the U.S. government tell us the indictment of Julian Assange is merely a case of prosecuting a man for aiding and abetting a felonious act and has little to do with press freedoms. Civil libertarians, in contrast, say the U.S. Attorney’s Office action is a clear-cut attack on the constitutional right of journalists to investigate and publish information that exposes government wrongdoing.
The reality is messier than either side want to believe.
Since the website’s inception over a decade ago, I have been uneasy about the WikiLeaks journalism model: Publishing large quantities of private (usually stolen) information under the rationale that it brings necessary transparency to important institutions in our society.
Assange sits in a British jail cell today because the U.S. government wants to prosecute him for aiding and abetting Chelsea Manning, a former intelligence analyst in the U.S. Army, in removing Iraq and Afghanistan war logs and diplomatic cables from a classified U.S. Dept. of Defense computer network (SIPRNet) in 2010. Manning, as well, sits in a Virginia jail cell today for refusing to testify before a grand jury regarding the Assange case.
The critical legal question (as of now) facing Assange is not whether he (WikiLeaks) had the right to publish the classified information that embarrassed the U.S. government in its revealing a significantly larger number of civilian deaths in Iraq and Afghanistan than had been previously disclosed by the U.S. military, and also exposing sensitive communications within the U.S. and foreign diplomatic communities. The Trump Justice Department is emphasizing that they are not challenging WikiLeaks’ right to publish, but merely prosecuting Assange for his encouraging and materially helping Manning commit an illegal act.
Those cheering Arrange’s arrest have long argued that he (and Manning) did substantive damage to U.S. security by exposing the identities of Iraqi and Afghan informants working with the U.S. military and by exposing confidential and critical conversations within the diplomatic community.
“There is blood on their hands” is a common refrain in the national security establishment.
As for the actual Assange indictment, it is a little less dramatic. The conspiracy indictment issued by the U.S. Attorney’s Office (Eastern District of Virginia) alleges that:
“Assange engaged in a conspiracy with Chelsea Manning…to assist Manning in cracking a password stored on U.S. Department of Defense computers connected to the Secret Internet Protocol Network (SIPRNet), a U.S. government network used for classified documents and communications. Manning, who had access to the computers in connection with her duties as an intelligence analyst, was using the computers to download classified records to transmit to WikiLeaks. Cracking the password would have allowed Manning to log on to the computers under a username that did not belong to her. Such a deceptive measure would have made it more difficult for investigators to determine the source of the illegal disclosures…
…During the conspiracy, Manning and Assange engaged in real-time discussions regarding Manning’s transmission of classified records to Assange. The discussions also reflect Assange actively encouraging Manning to provide more information.”
But First Amendment defenders are eager to point out that what Assange is accused of doing is done by investigation journalists every day in the execution of their jobs.
Never shy about exposing the hypocrisy of the mainstream news media, journalist Glenn Greenwald points out that news organizations routinely assist in the discovery, delivery and concealment of stolen goods and information.
“The New York Times implemented a system to allow stolen materials to be delivered to it without the thief getting caught,” tweeted Greenwald to New York Time journalist Katie Benner, who defends Assange’s arrest.
“The New York Times actively aids stealing,” says Greenwald.
Furthermore, investigative journalists are not passive actors in bringing transparency to private and public institutions in the name of the public good. They are proactive participants in seeking, discovering and publishing such information. They don’t sit at their desks waiting for whistle blowers to deliver ‘stolen’ information that exposes potential wrongdoing — they identify, pursue, and talk to potential sources with access to such information.
Washington Post reporters Bob Woodward and Carl Bernstein entered journalism lore because they weren’t afraid to prod, beg, and even shame potential sources into obtaining damning information about the Nixon administration.
But they still didn’t steal the information themselves — which is where the Assange case gets murky. To what extent are journalists are protected through the First Amendment to provide the incentives, tools and cover to help whistle blowers?
My no-law-background gut feeling says the U.S. Supreme Court will give tremendous latitude to journalists pursing the public interest. There is something about that Constitution of ours that swamps the temporary requirements of partisan bias and political convenience.
As for damage to U.S. security, the evidence against Manning and WikiLeaks is sparse. A 2011 DoD report concluded “with high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former US leadership in Iraq.”
Former U.S. Defense Secretary Robert Gates gave reporters in 2010 a similar assessment:
“The fact is governments deal with the United States because its in their interest, not because they like us, not because they trust us and not because they believe we can keep secrets,” he said. “Some governments deal with us because they fear us, some because they respect us, most because they need us. We are still essentially …. the indispensable nation.”
“So other nations will continue to deal with us. They will continue to work with us. We will continue to share sensitive information with one another. Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”
More probable harm was done to intelligence informants cultivated through the U.S. military and intelligence efforts in Iraq and Afghanistan.
Despite efforts by WikiLeaks to expunge identifying information regarding intelligence sources — for example, initially about 15,000 of the 92,000 documents obtained from Manning were not released in order to protect individuals cooperating with the U.S. military — Assange as subsequently asserted however that WikiLeaks is “not obligated to protect other people’s sources…unless it is from unjust retribution.”
And, in practice, it is almost impossible to remove enough information to protect all informants, particularly considering Manning lifted more than 740,000 pages of classified information from military servers.
“The lives of cooperating Afghans, Iraqis, and other foreign interlocutors have been placed at increased risk,” read a June 2011 Defense Intelligence Agency (DIA) executive summary regrading the impact of the Manning leaks.
I cannot categorically condone everything Assange and Manning did in releasing classified information — even as some of that information revealed likely war crimes committed by my government and its agents. It was likely a war crime when U.S. military personnel knowingly killed medical personnel (and two Reuters journalists) responding to a U.S. military attack on an adversarial target. [You can learn more about this attack and the accompanying video here.]
Without Manning and Assange’s actions, we may never have found about this now documented attack — and others like it. In my pedestrian view, learning of that attack is worth risking the lives of U.S. informants, who, after all, knowingly entered into that relationship cognizant of the risks involved.
Thus, at the end of the day, I stand with the Obama Dept. of Justice decision not to prosecute Assange on the belief that doing so would do significant harm to press freedom.
Nothing factual has changed since that Obama administration decision.
Furthermore, since WikiLeaks released the Manning materials, the U.S. security state has only grown bigger and more capable at invading the privacy of Americans and other persons protected by our Constitution. We must consider proportionality when deciding to prosecute and jail threats to a security state that far outweighs those threats in terms of power and ability to hide their illegal actions.
Adding to my inclination to defend Assange is that in over 10 years of WikLeaks’ existence, there is no concrete evidence suggesting it has ever published documents that were not authentic and accurate. CNN can’t seem to go 10 days without retracting a false story.
But the issue remains, to what extent is WikiLeaks responsible for protecting innocent people referenced in materials it publishes and to what extent is Assange, personally, responsible for aiding and abetting the theft of government property?
For Julian Assange’s own sake and reputation, he needs to have his case argued in the American court system, where I believe extenuating circumstances will lead to his acquittal.
But I don’t know that for a fact, and nor does anybody else.
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