The Julian Assange plea deal is a little more interesting than I initially thought. To simplify considerably, there were basically two things Assange was charged with:
- Obtaining and distributing classified national defense material.
- Actively helping Chelsea Manning obtain the material. In particular, prosecutors alleged that Assange "agreed to crack a password hash stored on U.S. Department of Defense computers."
The charges of distributing classified information were problematic because Assange was plainly not a spy. He was in the business of gathering classified documents and then publishing them widely. This is the same thing that journalists do routinely.
Conversely, cracking a password and then giving it to a source is not something journalists do routinely. That part of the indictment was relatively uncontroversial—though it might have been difficult to prove in court.
But it wasn't part of the single count that Assange agreed to plead guilty to. The plea deal very explicitly avoids the hacking offense and charges only that Assange violated the Espionage Act by receiving and distributing classified documents. This is precisely the precedent that journalists objected to.
A plea deal doesn't officially set a precedent, but in effect the Department of Justice is making it clear that it can and will prosecute someone who does nothing more than publish classified information.
Why? Assange has denied that he hacked a password, so this deal allows him to maintain that denial. Conversely, he obviously did publish classified documents, so the plea deal requires him to admit nothing new. Perhaps that was part of it? Or perhaps DOJ very specifically wanted to make it clear that it would prosecute even a journalist if the leaked documents were sufficiently harmful.¹
I don't know if we'll ever learn more about the motivations behind this. In any case, I remain a little befuddled about how Assange could have been indicted in the first place since he's not a US citizen and wasn't resident in the US or subject to US laws when he published the leaks. It turns out this is a bit of a complicated question, but apparently there are indeed circumstances in which US law has a global reach.
¹In particular, the government alleged that Assange published documents that contained the names of human sources:
The superseding indictment charges that Assange then published on WikiLeaks classified documents that contained the unredacted names of human sources who provided information to United States forces in Iraq and Afghanistan, and to U.S. State Department diplomats around the world. These human sources included local Afghans and Iraqis, journalists, religious leaders, human rights advocates, and political dissidents from repressive regimes. According to the superseding indictment, Assange’s actions risked serious harm to United States national security to the benefit of our adversaries and put the unredacted named human sources at a grave and imminent risk of serious physical harm and/or arbitrary detention.
But they are not saying he was acting as a journalist but as an instrument in a scheme to damage the US as much as possible, and that, I am assuming, is what makes it espionage.
It's the purpose of damage that's the point.
Yes, this. I think Kevin is incredibly cavalier about declaring Assange the equivalent of a journalist.
Espionage isn't a binary where you wear tuxedos and assassinate foreign leaders or you don't. It's a continuum, and Assange is very clearly much closer to a foreign operative than a random citizen journalist.
I agree. Saying "this is what journalists do" bothers me deeply. Journalists should be, above all, providing context to the public (which Kevin does magnificently) in order to make us all a little less stupid, rather than filling out their word counts with quoted talking points that make us more stupid. In terms of investigative reporting, there are plenty of things that cry out for investigation other than national defense secrets that could get hundreds of decent people killed. Julian Assange and all the other "transparency" absolutists are not heroes by any means.
Exactly.
Stenographic 'journalism' is the worst; it allows others to manipulate the message.
"It's the purpose of damage that's the point."
Is it? I think a journalist may very well be an activist too. E.g. an antinuclear journalist may try to uncover pollution secrets of a nuclear plant and publish them. As long as the info is true, he/she is still acting like a journalist.
Also, damage to what? Embarrassing an administration is perfectly allowable, as is "damaging" a human-rights violating policy. And that was the purpose, not endangering any undercover agents or whatever. Also, Assange is a foreigner. Imagine China charging an American journalist for damaging its reputation. Or Saudi Arabia dismembering a... wait a second.
Im not being purposely stupid but what exactly did Assange leak that is considered a "war crime?"
It's a pity Assange wasn't elected US president earlier; this could have all been sorted out by now. /s
Assange selectively published in time and content. That's the actions of a spy.
That he published openly is irrelevant, Kevin.
(Also, cracking a hash is directly breaking a lock. You know, the breaking part of entering.)
"Assange selectively published in time and content. That's the actions of a spy."
No, of a politically motivated person. Also, spies work for someone and don't publish. Also, he wasn't prosecuted for anything he published in time and content, like the Clinton emails, but for military-linked scandals he published as soon as he could.
Spies don't publish.
So if someone knew about the Doolittle Raid and radioed the Japanese to tell them that works be spying but if he makes a public radio broadcast in Japanese that they and the rest of the world can hear, that is journalism protected by the First. Amendment?
The air crews are equally dead and the raid fails either way. That cannot be right. Spying us disseminating secret information to our enemies whether you do so secretly or the front page of the New York Times.
You don't just plead guilty to a crime but also the necessary underlying facts that form the elements of the crime. Pleading guilty to assisting Manning of hacking might have added to her sentence, or at least opened up new crimes.
Additionally, there are downstream consequences from certain crimes that can follow you for life. E.g., a conviction on computer crimes might have barred Assange from bringing computers to the US.
Accepting a felony conviction I think means that he can only enter the country if he gets a State Department waiver ahead of time.
Not quite. Assange pled guilty to conspiracy, a violation of 18 USC §793 (g), having conspired (according to the government) with Chelsea Manning to violate subparagraphs (c), (d), and (e) of the statute. See https://www.law.cornell.edu/uscode/text/18/793
(Posted before I saw KenSchulz's post above, but obviously I agree)
On a quick read of the plea deal, I don't quite agree with your synopsis of the charges. He pleaded to *conspiring* with Chelsea Manning to "receive and obtain" national defense info, to transmitting it from authorized holders to ineligible receivers, and transmitting it from unauthorized holders to ineligible receivers, and to committing overt acts toward those ends.
In other words it's fundamentally a conspiracy plea and it involves activity to obtain the material in question. So unless I'm being naive I think he's pleading to being actively involved in getting the documents, not simply receiving them passively and then publishing them. It isn't the same as admitting to hacking, but it admits to being involved in actively taking measures to get them. If I knew the laws' wording I'd know more how closely this ties him to the thefts, but it isn't a case of simply receiving and passing along things he didn't have a right to see or publish.
I'm not sure what this reading would mean for reporters or publishers. Be sure you're not actively conspiring or aiding to steal documents or information?
As far as disseminating goes, I do have an abstruse question about First Amendment issues. It seems to me that unless Assange was based in the US somehow, First Amendment rights wouldn't have applied to him or be implicated, would they? He was never a US national so they wouldn't follow him out of the country, and as a non-national they wouldn't cover him unless he was somewhere on US soil. Is that right? In any case I don't remember this being discussed at any earlier points but then I wasn't paying a lot of attention to this case.
It was about extradition from US allies with extradition treaties in place.
As to the implications for reporters and publishers, doesn’t the Pentagon Papers case remain the precedent? WaPo, NYT and others were not prosecuted for publishing excerpts; the Nixon administration was ultimately denied an injunction even to prevent further publication.
On prior restraint, yes, as I understand it. But I'm thinking of a slightly different angle, the one I think Kevin has in mind. From about W's terms onward the feds have been aggressive about prosecuting leakers under the Espionage Act, which has very broad language and very long prison terms. Over that time there's been a fear among journos that they'd be next because administrations have been so serious about going after leakers and the language clearly seems to allow charging reporters and publishers. Administrations have said they'd never do that, but that didn't make the journo world rest any easier.
And then came the charges against Assange, which from a certain angle could look like what everybody was afraid of-- his posture was as reporter/publisher and whistleblower.
What I'm asking about is legal defenses, really. A reporter who's a US national, or an outlet owned and based in the US, has solid First Amendment claims (which I think has been the reason administrations say they wouldn't ever charge them) and 1A defenses if charged. I think the claims and defense would at least arguably cover US citizens based in other countries because the protections should cover the person as well as the territory, but that's kind of a side issue.
Assange has never been a US citizen, as far as I know has never based himself on US soil, has never (again as far as I know) said that Wikipedia was US-based in any way. If that's right, then he never had any claim to 1A protections, and charging him would not have any necessary implications for how the feds will approach people and entities that do.
That's a self-imposed DOJ limit and if I were a journo I'd still be queasy (and if there's another trump term I'd have my go-bag ready) and I'd still want some protections and limits put into the Espionage Act. But I wouldn't necessarily see them coming for me next simply on the basis that they went after Assange. Because as far as I can see, there's no colorable argument that he was ever entitled to 1A protections. But I don't remember seeing that addressed at any point, though as I say I wasn't paying particular attention while all this was happening.
And the bigger issue then is whether journos and feds have been talking at cross-purposes all these years, where journos want to say the 1A applies to the enterprise of journalism wherever and however practiced and the feds were focused on Assange's role in getting the classified stuff out of government hands in the first place, and only secondarily on dissemination by person and entity that in any event had no 1A protection to respect.
Oh, let's have a countdown to Trump promising to pardon him!
If I recall correctly, there was a fuss here in France when Sarkozy wanted to introduce plea deals into the French system. Looking at US experience, it was said that yes you got guilty verdicts more easily that way, but often of people who might be innocent and only wanted to avoid the risk of a higher sentence. Also (but this is not applicable in the Assange case), a plea deal may include witness testimony against another accused person and be seen as a sort of bribe to denounce others. Who might be innocent. In short it was seen as an efficient but bad system and was not copied by the French in the end.
In this case Biden saves face and Assange can go home. I don't see any creation of precedent here. Plea deals, I think, never create precedent by their very nature.
>often of people who might be innocent and only wanted to avoid the risk of a higher sentence
I have never understood how this, in and of itself, is a convincing argument against plea bargaining. Obviously, innocent people are convicted at trial as well; if they weren't, no innocent person would take a plea deal. So unless we know how often each happens, it is hard to know how strong this argument is.
Moreover, many criminal trials are not whodunits, but whatdoneits -- the defendant is clearly guilty of a crime, but what specific crime? (eg, involuntary manslaughter, voluntary manslaughter, second-degree murder, first-degree murder). One advantage to a defendant of a plea deal over a trial is that a defendant who is guilty of manslaughter is not going to plead to first-degree murder, but a jury might wrongly convict him of first-degree. Anyhow, my point is that there are many permutations, and so the bare claim that wholly innocent defendants might take a plea deal does not really address the issue very completely.
"but apparently there are indeed circumstances in which US law has a global reach."
Like, for instance, oh, let's say terrorism.
Do journalists routinely actively solicit classified documents? Do they assist in their collection?
Been a long time since I’ve followed this…is Chelsea Manning the one that’s really a man?
Don't try to understand the law. Back during Prohibition, there was a man brought on charges of possession of alcohol, keeping alcohol for sale and selling alcohol. He was acquitted of possession and sale but convicted for keeping alcohol for sale. It gets even weirder for plea deals. A legal case is often less than the sum of its parts.
There is nothing odd about being convicted of possession for sale, but acquitted of actual sales; they are distinct crimes.
As for the acquittal for simple possession, that is also normal, because simple possession is a lesser included offense of possession for sale, conviction for both might be forbidden eg https://www.justia.com/criminal/docs/calcrim/3500/3517/