Assange plea deal blemishes Biden record

All these years later, such brutal fantasies are meeting legal reality. At a Tuesday (Eastern time) hearing in a federal courtroom in the Northern Mariana Islands, Assange wrapped up a plea deal with the Justice Department on a single violation of the Espionage Act. His punishment? Time served: He’d spent 62 months in the Belmarsh maximum security prison in London as he battled extradition to the United States, following a seven-year stint holed up in the Ecuadorian Embassy in London. He has since returned to his native Australia.

“Mr. Assange revealed truthful, important and newsworthy information,” Assange lawyer Barry Pollack told journalists, “including revealing that the United States had committed war crimes, and he has suffered tremendously in his fight for free speech, for freedom of the press and to ensure that the American public and the world community gets truthful and important newsworthy information.” Assange, Pollack argued, “engaged in an exercise that journalists engage in every day, and we’re thankful that they do.”

Publishing newsworthy information, indeed, is something that journalists do every day. Yet the parallels between proper, modern journalism and Assange’s activities have their limitations, as does the document outlining the charge in Assange’s case. It fails to specify activity that would distance Assange’s work from that of mainstream media organizations, an omission with implications for journalists who take part in sensitive national security reporting. Fault for this shortcoming lies with the Biden Justice Department.

“It leaves the door open for the government to make it a lot worse in the future,” says veteran media lawyer Lee Levine.

Some background: The case relates to WikiLeaks’ release in 2010 and 2011 of classified documents turned over without authorization by former Army intelligence analyst Chelsea Manning, including 400,000 reports on the Iraq War and 75,000 on the Afghanistan war. Scoops took flight from the trove — particularly one about an attack by U.S. forces in an Apache helicopter that killed 11 Iraqis, including two Reuters staffers. Media organizations including the New York Times, the Guardian and Der Spiegel published stories stemming from the WikiLeaks documents. The material provided inspiration to pro-democracy activists in Tunisia.

Press freedom concerns steered the Obama administration away from bringing charges against Assange. The Trump folks had no such qualms, indicting Assange with a kitchen-sink list of charges under the Espionage Act that could have amounted to a sentence of up to 175 years in prison. The document took pains to inventory all the ways in which Assange allegedly attempted to help Manning extract documents from government systems, laying out a picture of the transparency activist as something far more than a passive recipient of classified information. For example, it alleged that Assange had agreed to help Manning crack a password hash on Defense Department computers. Verb salads got the point across: “The defendant ... aided, abetted, counseled, induced, procured and willfully caused Manning ... to communicate, deliver, and transmit the documents to ASSANGE, a person not entitled to receive them,” reads the indictment.

Yet the indictment also took aim at the mere act of disseminating information, a development of particular concern to press freedom advocates. These “pure publication” charges are “totally divorced from any concerted action between Assange and Manning. The theory behind them would permit prosecution even if Assange had received the material anonymously in the mail,” wrote Gabe Rottman, director of the technology and press freedom project at the Reporters Committee for Freedom of the Press.

The sun set on the Trump administration as Assange tied up his extradition in British courts, leaving the matter for Biden’s Justice Department. In April, Biden expressed a willingness to consider a request from Australian Prime Minister Anthony Albanese to drop Assange’s prosecution. That move, says Levine, would have been consistent with the administration’s approach to press protections, as when Biden himself pledged that his Justice Department wouldn’t seize the email and phone records of journalists. Instead of bailing on the prosecution, however, the Biden administration “gave us this,” says Levine. “And that’s troubling. ... You would have expected nothing less from Trump but you would have expected a lot more from the Biden administration.”

Media organizations care a great deal about the Assange case because they’re trying to preserve a critical legal distinction: The Espionage Act’s provisions targeting national security leaks have been used to punish leakers but not to charge members of the news media who publish such information.

Documents in the Assange plea deal raise questions about the longevity of that distinction. A four-page document — a “criminal information” — alleges that Assange conspired with Manning to “receive and obtain” documents pertaining to U.S. national security — including material classified up to the “SECRET” level — and then to “communicate” the material to “persons not entitled to receive them.” The problem here, says Levine, is that the alleged conspiracy involves not just obtaining the information but also disseminating that information — which is precisely what news outlets do, and there’s nothing criminal whatsoever about such activity.

In a commentary on the deal and a podcast, national security journalist Marcy Wheeler noted how the plea agreement omits details on Assange’s alleged support for hacking. Even the stuff about breaking a password is absent. Again — this sort of activity distinguishes Assange’s work from journalists’ work. Had it been included in the documents, news organizations would have greater comfort that their workflow, which doesn’t include assistance with password-breaking, won’t land them in legal hot water. “Once you take the hacking away, yeah, it is a terrible precedent we should all be worried about,” Wheeler said on “BradCast.”

Another concern from the fine print: The criminal information concludes, “In furtherance of the conspiracy, and to accomplish its objects, ASSANGE and Manning committed lawful and unlawful overt acts.” That formulation, says Levine, “at least suggests that if all he had done is engage in lawful acts, as journalists do each day, he would still be guilty.”

Let there be no ambiguity about the relative merits of the Trump and Biden administrations on this subject matter. Whereas Biden has been strong on press freedoms (as noted above), Trump spat at them whenever it suited him (often, that is) — and his administration’s Assange indictment reflected his disregard for the First Amendment. Had Trump’s Justice Department gotten Assange in a U.S. courtroom, there’s no telling how much damage would have resulted.

The irony here? The plea deal could be used as cover for Trumpian press crackdowns in the future.