Julian Assange's lawyer says the arrest was for breach of bail and an extradition request from the U.S.
WASHINGTON – As purveyor of secret U.S. government information, Julian Assange has few rivals.
The release of a stunning trove of sensitive diplomatic cables and entire Pentagon databases nearly a decade ago made Assange and his anti-secrecy group WikiLeaks a household names and an enemy of the American government.
Six years later, WikiLeaks published thousands of private emails involving members of Hillary Clinton's presidential campaign that investigators said were stolen and passed to Assange's organization working for the Russian government. That episode and others so infuriated U.S. authorities that then-CIA Director Mike Pompeo called Assange's organization a "hostile intelligence service."
But none of those things prompted the government to call Assange a criminal.
Instead, federal prosecutors unveiled a single count outlining a simple criminal conspiracy alleging that Assange joined with former Army intelligence analyst Chelsea Manning in 2010 to crack a password on a secret computer network within the Defense Department. It wasn't clear from the charges that they succeeded.
That case appeared to be the result of a yearslong struggle within the Justice Department over what to do about WikiLeaks and its famous founder, whose activities the government has said repeatedly jeopardized U.S. security but also were difficult to distinguish from those of journalists who frequently print information the government would rather keep secret. The question that vexed prosecutors was where to draw the line between journalism and crime.
Wherever that line is, prosecutors say Assange crossed it on March 8, 2010, when they allege that he agreed to help Manning crack a password on the Pentagon's computer network. In framing the case that way, the Justice Department cast its focus on conduct that separates Assange from journalists who receive and publish classified secrets.
“I think the top line takeaway form this: journalism is not a crime, but hacking is,” said April Doss, a former National Security Agency associate general counsel. "What we see in the indictment is the Department of Justice being very careful to draw that distinction and make clear that the indictment is not for anything that he published. The indictment really centers around the allegation that he was conspiring to hack into Department of Defense computers.”
Doss said the nature of the government's charge is so limited in scope that it should provide "comfort" to journalists who report on national security.
"This indictment does not cause any risk to journalists who are encountering that information," Doss said. "What it does is reinforce the longstanding rule that nobody can commit crimes in order to get that kind of information.”
Ryan Fayhee, a former federal prosecutor in the Justice Department's National Security Division that is overseeing the Assange case, said that while it is possible the government could file additional charges, the concise seven-page document unsealed Thursday appears to reflect a purposeful strategy by prosecutors.
The single hacking charge, Fayhee said, could ease the otherwise tricky process of extraditing Assange to the United States, in part because the British government also recognizes computer intrusions as crimes. And by narrowly focusing on Assange's alleged code-breaking scheme, any effort to assert a First Amendment defense will likely be more difficult to argue.
"It's one thing for a journalist to publish information from a source who has access to it and is willing to risk the consequences," Fayhee said. "It is quite different, though, for a journalist and a source to be willing to work together to take information from a protected computer."
Yet within hours after Assange's London arrest, the anti-secrecy activist's lawyers and free-press advocateswarned that his prosecution represented a serious threat to journalists and news organizations in the United States, suggesting that the case essentially criminalized publication.
"The U.K. courts will need to resolve what appears to be an unprecedented effort by the United States seeking to extradite a foreign journalist to face criminal charges for publishing truthful information," said Barry Pollack, the U.S.-based lawyer who represents Assange.
The American Civil Liberties Union also warned that any prosecution of Assange by U.S. authorities would constitute an "unprecedented" breach of free speech rights. Ben Wizner, director of the ACLU's Speech, Privacy and Technology Project, said the case "opened the door to criminal investigations of other news organizations."
Exactly where to draw the line between gathering the news and conspiring to steal secrets has long been a difficult subject for the Justice Department, which is also in charge of hunting leaks of government classified information. Then-Attorney General Eric Holder faced a backlash after prosecutors named Fox News correspondent James Rosen an unindicted co-conspirator in a leak case in 2009. The government alleged that Rosen had been seeking secret information about North Korea.
Prosecutors said Assange, too, had solicited secrets. When Manning told him he had passed along the last batch of records he had gathered from Army computers, prosecutors said Assange replied "curious eyes never run dry."
What is WikiLeaks
Almost from the moment Assange and WikiLeaks burst onto the public stage in 2006, a debate has ensued over whether the boyish Australian should be defined as journalist or activist.
In 2009, Assange and WikiLeaks were among those honored with Amnesty International Media Awards, along with such mainstream news organizations as CNN, the BBC and Newsweek. The lone recipient in a category reserved for "New Media," Assange was recognized for his work on a project implicating Kenyan police in mass killings.
Assange's notoriety, however, exploded in 2010 and 2011 with the mass release of classified U.S. government records, ranging from secret assessments of U.S. prisoners held at the military detention center at Guantanamo Bay to thousands of sensitive cables issued by State Department diplomats.
And in 2016, Assange drew the attention of federal investigators and the repeated praise of then-Republican presidential nominee Donald Trump for disclosing thousands of damaging email communications from Democratic political organizations stolen from the Democratic National Committee by an arm of Russia's intelligence service.
"I love WikiLeaks," Trump declared at a 2016 rally.
Wikileaks' involvement in the dissemination of the communications became a focus of special counsel Robert Mueller's investigation into whether the Trump campaign had coordinated with the Russian government to win the White House.
While Mueller ultimately found insufficient evidence of such a conspiracy, according to a summary of the special counsel's authored last month by Attorney General William Barr, suspicion surrounding Assange and his intervention in the 2016 campaign has not abated.
Mueller has closed his 22-month investigation and a final report of his findings are being readied for public release, but Doss, the former NSA associate counsel, said that Assange could hold information that may be valuable to federal investigators – another potential reason for the government to seek his extradition to the U.S.
"It is certainly possible that he has information that would be of interest to federal prosecutors either in the indictments that have already been filed or in potential new proceedings," Doss said. "Over time, he might be interested in pursuing a plea agreement if it looks like he’s facing a real prospect of jail time."
Federal authorities have declined to comment on whether Assange could face additional charges. But the prospect of such an action by the Trump administration, which has repeatedly castigated the press, could mean trouble not only for Assange but for working journalists, said Mark Feldstein, a University of Maryland journalism professor.
In past leak cases, the government has largely targeted the leakers or whistle-blowers, including celebrated former military analyst Daniel Ellsberg for his role in disclosing the Pentagon Papers, rather than targeting The New York Times or The Washington Post for publishing the documents.
“The danger, if they start charging the press for publishing, is that would create an unprecedented expansion of the government’s powers,” Feldstein said. “With Trump and this administration, it wouldn’t surprise me if he would seek to widen the conflict with the news media in a way that other administrations have mostly sought to avoid confrontation with the news media.”