Tunisia used WikiLeaks to good ends. Opposition to the corrupt regime of Zine el-Abidine Ben Ali was growing at the time when the radical transparency organization dumped hundreds of thousands of U.S. diplomatic cables and other records onto the Internet, with some of them describing the excesses of Ben Ali’s rule. The revelation that the United States saw right through the regime’s plutocratic ways helped catalyze the country.
“I knew I had in front of me a valuable set of documents that could be turned into action,” a Tunisian activist later wrote. “This is what we were looking for during the last decade of strategizing and theorizing about citizen dissent media, diaspora media, exiled media, digital activism: the ability to inform and transform. This was momentum.” Indeed: Ben Ali fled the country in January 2011 after pressure from protesters.
While Tunisian democracy activists may look fondly upon the WikiLeaks disclosures, a different mind-set prevails in the U.S. government. An indictment filed in March 2018 and unsealed on Thursday charges Julian Assange, the WikiLeaks founder who orchestrated the leak of the U.S. cables, with violating the Computer Fraud and Abuse Act by conspiring to hack into a U.S. government computer. The allegations stem from online chats between Assange and then-Army intelligence analyst Chelsea Manning in which the two discussed the ins and outs of transferring and publishing enormous amounts of U.S. government documents.
From the indictment: “On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications.” That’s the foundation of the alleged conspiracy. Another dimension, however, relates to something a bit more squishy: “It was part of the conspiracy that Assange encouraged Manning to provide information and records from departments and agencies of the United States."
This alleged encouragement came when Assange and Manning exchanged messages on the leaked materials:
Manning: “after this upload, that’s all I really have got left.”
Assange: “curious eyes never run dry in my experience.”
One of the most famous sources in American history finds nothing awry with that exchange. “The charge that he encouraged her to give up documents is a laughable, blatant violation of the First Amendment,” says Daniel Ellsberg, who leaked the Pentagon Papers. Countless times, says Ellsberg, reporters encouraged him to cough up government secrets. Were they, too, breaking the law?
Everything Assange-related is complicated. He founded WikiLeaks in 2006 to perform radical transparency on the powerful, a goal that he achieved with the Manning documents. But since then, his work has faltered and his life has cratered. In 2012, he took refuge in the Ecuadoran Embassy in London after Sweden issued an arrest warrant for him on allegations of sexual misconduct. His tumultuous domestic arrangements and squabbles with the Ecuadorans alone have morphed into something of a journalistic beat. British authorities arrested him on Thursday, and the United States is seeking his extradition on the hacking charge.
The indictment is unrelated to WikiLeaks’ role in publishing stolen emails from the Democratic National Committee during the 2016 presidential campaign, a trove that the U.S. government claims came from Russian actors.
Over the past decade, an obscene number of panel discussions in hotel ballrooms have addressed the question of whether Assange is a journalist. Media law professor Jonathan Peters noted on Twitter:
The nature of Assange’s work is relevant because, as discussed in this space on many occasions, our legal system smiles on journalists who passively receive information that may have been stolen by a motivated party. In Bartnicki v. Vopper, the Supreme Court ruled on a case involving a radio host who played a newsworthy and illegally recorded phone call between key players in union negotiations. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” noted Justice John Paul Stevens in the 2001 case.
In a concurring opinion, Justice Stephen G. Breyer wrote of the radio station, “For one thing, the broadcasters here engaged in no unlawful activity other than the ultimate publication of the information another had previously obtained. They ‘neither encouraged nor participated directly or indirectly in the interception.'"
Bolding inserted to highlight an echo in the Assange indictment. (For a prescient analysis of all this in 2010, see this Slate article by Nick Bravin.)
Just what Assange may have done to crack a U.S. government password isn’t terribly clear, as the indictment is rather threadbare on the evidence front. It does note that in the online chats, Assange told Manning he’d had “no luck so far” on that project.
Press advocates find some comfort that the Justice Department refrained from bringing charges under the Espionage Act, a vehicle for punishing leaks that earned favor under the Obama administration. Another plus is that the indictment focuses on the computer-intrusion aspect of the Assange-Manning chats. Journalists working for U.S. news outlets have a pretty clear understanding that they’d be stepping over the line if even they so much as suggested helping in the hacking of a government password. Famed First Amendment lawyer Floyd Abrams told CNN that the indictment is “based on Assange’s alleged activities in personally participating in accessing the classified information and cracking a classified password. Assange is thus accused of not just receiving classified information and disseminating it but in essence of breaking into the secured computers of the government. That is fortunately not commonplace journalistic conduct.”
So that’s the sunny view.
The shadowy view is the construct that the “curious eyes” line — in a chat between a publisher and a source — could somehow be construed as criminal behavior; that the U.S. government is apparently resting its entire case on these online chat logs; that the indictment reads like an exercise in prosecutorial clickbait — a big headline and then a lot of filler; that the indictment relates to conduct nearly a decade old and in connection with a release that enlightened the world. As CNN’s Jake Tapper said on his Thursday show, “Among the material that WikiLeaks published is this 2007 U.S. airstrike in Iraq that killed a dozen people, including two Reuters journalists. We would not know about that if Chelsea Manning hadn’t leaked it and WikiLeaks published it."
Though not a huge fan of statements from organizations, the Erik Wemple Blog finds a lot of merit in this one from the Freedom of Press Foundation:
Defenders of this indictment will drone on about the centrality of hacking. Fine and good. But powerful people down the road may not draw any such disciplined conclusions from the document; they may draw the reckless conclusion that the door is now open to insert the federal criminal apparatus more deeply into journalist-source interactions.
The precedent reminds Ellsberg of a conversation he had in the early 1970s with Abe Rosenthal, the legendary newsman of the New York Times, after Ellsberg’s indictment. “I said, ‘What is your policy on supporting sources — on helping the legal defense of sources? And Abe said — he thought a minute, and said, ‘Well, I’m not sure we have a policy.'" Of course you don’t, replied Ellsberg — that’s because you haven’t had a source indicted before. “You’d better … develop one because if I am convicted," said Ellsberg.
The charges against Ellsberg were dropped. But he says media organizations should now heed the advice he gave nearly five decades ago to the New York Times.