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The Espionage Act and Julian Assange: The US Justice Department Expands Its Case

It seemed flimsy from the start, but the US Department of Justice is keen to get their man. What has certainly transpired of late is that Mike Pompeo was being unusually faithful to the truth with the director of the CIA: every means would be found to prosecute the case against WikiLeaks and Julian Assange. His assessment of the publishing outfit in 2017 as a “non-state hostile intelligence service” finds its way into the latest Justice Department’s indictment, which adds a further 18 counts.

The prosecution effort was initially focused on a charge of computer intrusion, with a stress on conspiracy. It was feeble but intentionally narrow, fit for extradition purpose. Now, a few more eggs have been added to the basket in a broader effort to capture the entire field of national security publishing. The Espionage Act of 1917, that ghoulish reminder of police state nervousness, has been brought into play. Drafted to combat spies as the United States made its way into the First World War, the act has become a blunt instrument against journalists and whistleblowers. But Assange, being no US citizen, is essentially being sought out for not abiding by the legislation. The counts range from the first, “conspiracy to receive national defence information” (s. 793(g) of the Espionage Act) to “obtaining national defence information,” to the disclosures of such information.

The first part is problematic, as prosecutors are arguing that Assange does not have to release the said “national defence” information to an unauthorised recipient. In short, as a publisher to the world at large of such material, he can be punished. The second round of charges, drawn from section 793(b) of the Act, makes the prosecution purpose even clearer. The provision, dealing with the copying, taking, making, obtaining, or attempting to do so, material connected with national defence, would suggest the punishment of the source itself.  Not so, claim the prosecutors: the publisher or journalist can be caught in its web.

Section 793(c), upon which four counts rest, is intended to capture instances of soliciting the leaks in question or the recipient of that information, one who “agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made or disposed of by any person contrary to the provisions of this chapter.” 

If there was any doubt about what the indictment does to media organisations who facilitate the means to receive confidential material or leaks, the following should allay it: “WikiLeaks’s website explicitly solicited, otherwise restricted, and until September 2010, ‘classified materials’. As the website then-stated, ‘WikiLeaks accepts classified, censored, or otherwise restricted material of political, diplomatic or ethical significance.”  From the perspective of prosecutors, “Assange and WikiLeaks have repeatedly sought, obtained, and disseminated information that the United States classified due to the serious risk that unauthorized disclosure could harm the national security of the United States.”

Seething with venom, the indictment also takes issue with instances where Assange sought to popularise the effort to obtain leaks. Assange “intended the ‘Most Wanted Leaks’ list to encourage and cause individuals to illegally obtain and disclose protected information, including classified information, to WikiLeaks contrary to law.”

The standout feature of this angle is that Chelsea Manning, the key source for WikiLeaks as a former intelligence analyst for the US Army, is less important than Assange the mesmerising Svengali. It was the WikiLeaks’s publisher who convinced Manning to respond to his seductive call, a point the prosecutors insist is proved by search terms plugged into the classified network search engine, Intelink.

The response from the scribbling fraternity, and anybody who might wish to write about national security matters, has been one of bracing alarm, tinged by characteristic apologias. On the latter point, Assange the principle, and Assange the man have proven confusing to fence sitters and traditional Fourth Estate sellouts.

Sam Vinograd shines in this regard as CNN national security analyst, an important point because such hacks previously served as advisors or agents to political masters. They can be trusted to toe the line. In Vinograd’s case, it was as senior advisor in the Obama administration. Triumphantly, she claims, Assange “knowingly endangered the lives of journalists, religious leaders, human rights advocates, and political dissidents and did incredible harm to our national security.” No evidence is supplied for any of these assertions – the claims in the indictment will do. Obscenely, we are to take at face value that the US Justice Department is doing us, not to mention journalists, a favour. Wither analysis.

The mistake often made is that such previous experience as a national security advisor or some such will enable in-stable media figures to speak openly about topics when the opposite is true. Their goggles remain permanently blurred to the broader implications of punishing media outlets: they, after all, speak power to truth.

Those like John Pilger, one of Assange’s more tireless defenders, have been unequivocal and, thus far, accurate. “The war on Julian Assange is now a war on all,” he tweeted. “Eighteen absurd charges including espionage send a burning message to every journalist, every publisher.” WikiLeaks’s current publisher-in-chief, Kristinn Hrafnsson expressed “no satisfaction in saying ‘I told you so’ to those who for 9 years scorned us for warning this moment would come.”

The ACLU has also made the pertinent point that the charges against Assange are easily replicable across the board: do it to Assange and you might give the nod of approval to other states to do the same. They “are equally dangerous for US journalists who uncover the secrets of other nations. If the US can prosecute a foreign publisher for violating our secrecy laws, there’s nothing preventing China, or Russia, from doing the same.” Fairly precise, that.

Trevor Timm, Freedom of the Press Foundation executive director, did not mince his words. “Put simply,” came his statement, “these unprecedented charges against Julian Assange and WikiLeaks are the most significant and terrifying threat to the First Amendment in the 21st century.”

The silver lining – for even in this charred landscape of desperation, there is one – is the overzealous nature of this effort. For one thing, proving espionage requires the necessary mental state, namely the “intent or reason to believe that the [leaked] information is to be used to the injury of the United States, or to the advantage of any foreign nation.” It was precisely such grounds that failed to convince Colonel Denise Lind in Manning’s trial, who found that the analyst was not “aiding the enemy” in supplying material to WikiLeaks. 

By larding the charge folder against Assange so heavily, the political intention of the prosecutors is clear. It reeks of overreach, an attempt to get ahead of the queue of Sweden. A sensible reading of any extradition effort now must conclude that Assange is as much a target of political interest as anything else. Not a hacker, nor a figure so personalised as to be reviled, but a symbol of publishing itself, persecuted by the only superpower on the planet. The case, surmises Edward Snowden, “will decide the future of media.”

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7 comments

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  1. Jack Cade

    This entire affair is disgusting. All that Assange did was tell the world what the US did but kept quiet about it. The problem
    Us that the USA is a dishonest, vindictive, bullying and mendacious state, and the UK (and Australia) little more than catamites.
    I have met many Americans; I have probably never met an American I didn’t like. In my youth, hitchhiking through Europe and staying in YHA hostels, I learned to seek out Americans because they were good company and good-natured. But I despise their country for its foreign policy and tendency to bomb the shit out of places that can’t fight back. Indeed, countries that DID fight back generally sent the US packing – Korea, Vietnam, Afghanistan, and soon Iran and Venezuela.
    I remember an interview the BBC had with an Iraqi shortly after the invasion. He said words to the effect ‘You have destroyed our homes, destroyed our country, pitted neighbour against neighbour.’ But the most telling comment he made was, and I quote “We will never forget and we will never forgive you.”
    We now reap the rewards of joining in the US adventures to steal other peoples’ resources. I fear ISIS will be around as long as there are Arabs and Islam.

  2. Phil Gorman

    British Justice has proved to be somewhat over-rated when it comes to such issues. Far from cherishing its independence under the doctrine of the separation of powers the judiciary has time and again served the interests of the over-mighty against the common good.

    The “popular election” or political appointment of American jurists lays the whole nation open to the vagaries of power and influence. The blatantly political composition of the Supreme Court makes a mockery of justice. Assange will likely be bundled out of Britain to be subjected to a grand US show trial worthy of Jo Stalin. Vengeance, not justice, will be the order of the day. The effect will be chilling, and a green light to authoritarian governments everywhere. No news outlet, whistleblower or reporter will be safe with Assange serving an exemplary life sentence.

    A better outcome would be to extradite him to Sweden on the understanding of no further extraditions, particularly to the USA. Unlike publishing classified material rape is undeniably a grievous crime. If Assange proves to have been an unprincipled cad, ready to engage in unprotected sex with partners who explicitly consented only to protected sex then he is likely guilty of rape under Swedish Law. If so he should suffer the consequences.

  3. RomeoCharlie29

    “A grand US Show Trial worthy of Joe Stalin”? I think it’s more likely to be a kangaroo court, held in secret — using national security as the excuse— and Assange will be clapped in irons and imprisoned for who knows how long. If, of course he is ever extradited. I had hoped a change of government might see a more principled attitude to Assange but the return of the US lickspittles seems to have put paid to that.

  4. Lambert Simnel

    The fascist slime dont realise the impression they create in many onlookers who see for the first time their true face behind the smiling mask.

  5. John L

    So….we can expect to see the editors and publishers of the Guardian, Washington Post, New York Times, Der Spiegel, La Monde, etc etc, all arrested and carted off to the US to face similar charges, as not only did they publish everything they got, they made money out of it……..ooops, …made money out of it……that shows they are one of “them”, not one of us…….

  6. Michael Taylor

    That’s the real concern, John L.

    It also shows the hypocrisy of the current US administration. They’re willing to charge writers over the publication of classified information, yet Trump goes ahead and declassifies the FBI’s files. 😳

  7. Lambert Simnel

    Agree with Michael Taylor that Trumpism is new low in relations between the USA and the world (on the whole).

    Also even the supposed better elements of msm remain ambivalent toward the issue. Here is Alan Rusbridger, influential former long term editor of the Grauniad with a piece on the implications of Assange’s persecution:

    https://www.theguardian.com/commentisfree/2019/may/26/prosecuting-julian-assange-for-espionage-poses-danger-freedom-of-press?CMP=share_btn_fb&fbclid=IwAR3zBxuZaykdhFFxkEP4qZpcKxxPqwb7wxYIX7Ami-P2Eu51ae1MGN0hiVs

    No comments section, surprisingly.

    Beleive it or not, this mildly opaque piece is one of the better efforts from one of the supposedly more reputable newspapers

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