23 May 2019, US District Court, Eastern District VA: US v. Assange (Superseding Indictment) (PDF)
https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html
May 23, 2019
Assange Indicted Under Espionage Act, Raising First Amendment Issues
By Charlie Savage
WASHINGTON -- Julian Assange, the WikiLeaks leader, has been indicted on 17 counts of violating the Espionage Act for his role in obtaining and publishing secret military and diplomatic documents in 2010, the Justice Department announced on Thursday -- a novel case that raises profound First Amendment issues.
The new charges [1] were part of an expanded indictment obtained by the Trump administration that significantly raised the stakes of the legal case against Mr. Assange, who is already fighting extradition proceedings in London based on an earlier hacking-related count [2] brought by federal prosecutors in Northern Virginia.
The charges are the latest twist in a career in which Mr. Assange has morphed from a crusader for radical transparency to fugitive from a Swedish sexual assault investigation, to tool of Russia's election interference, to criminal defendant in the United States.
Mr. Assange vaulted to global fame nearly a decade ago as a champion of openness about what governments secretly do. But with this indictment, he has become the target for a case that could open the door to criminalizing activities that are crucial to American investigative journalists who write about national security matters.
The case has nothing to do with Russia's election interference in 2016, when Mr. Assange's organization published Democratic emails stolen by Russia as part of its covert efforts to help elect President Trump. Instead, it focuses on Mr. Assange's role in the leak of hundreds of thousands of State Department cables and military files by the former Army intelligence analyst Chelsea Manning.
Justice Department officials did not explain why they decided to charge Mr. Assange under the Espionage Act -- a step also debated within the Obama administration but ultimately not taken. Although the indictment could establish a precedent that deems actions related to obtaining, and in some cases publishing, state secrets to be criminal, the officials sought to minimize the implications for press freedoms.
They noted that most of the new charges were related to obtaining the secret document archives, as opposed to publishing them. In the counts that deemed the publication of the files a crime, prosecutors focused on a handful of documents revealing the names of people who provided information to the United States in dangerous places like war zones.
"Some say that Assange is a journalist and that he should be immune from prosecution for these actions," John Demers, the head of the Justice Department's National Security Division, said at a briefing with reporters. "The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department's policy to target them for reporting."
But Mr. Assange, he said, was "no journalist." Mr. Demers accused him of conspiring with Ms. Manning to obtain classified information. "No responsible actor, journalist or otherwise, would purposefully publish the names of individuals he or she knew to be confidential human sources in a war zone, exposing them to the gravest of dangers," he said.
For the purposes of press freedoms, what matters is not who counts as a journalist, but whether journalistic activities -- whether performed by a "journalist" or anyone else -- can be crimes in America. The Trump administration's move could establish a precedent used to criminalize future acts of national-security journalism, said Jameel Jaffer of the Knight First Amendment Institute at Columbia University.
"The charges rely almost entirely on conduct that investigative journalists engage in every day," he said. "The indictment should be understood as a frontal attack on press freedom."
Mr. Demers left the press briefing without taking questions. And a Justice Department official who stayed behind to answer questions on the condition that he would not be named would not address any about how most of the basic actions the indictment deemed felonies by Mr. Assange differed in a legally meaningful way from ordinary national-security investigative journalism -- encouraging sources to provide secret information of news value, obtaining it without the government's permission and then publishing portions of it.
Notably, The New York Times, among many other news organizations, obtained precisely the same archives of documents from WikiLeaks, without authorization from the government -- the act that most of the charges addressed. While The Times did take steps to withhold the names of informants [3] in the subset of the files it published, it is not clear how that is legally different from publishing other classified information.
Barry J. Pollack, a lawyer for Mr. Assange, said his client was being charged with a crime "for encouraging sources to provide him truthful information and for publishing that information." That dramatic step, he said, removed the "fig leaf" that the case about his client was only about hacking.
"These unprecedented charges demonstrate the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists in their endeavor to inform the public about actions that have been taken by the U.S. government," he said.
For most of American history, it was rare for the government to treat the leaking of its secrets to the news media as a crime. But starting in the second half of the George W. Bush administration and accelerating during the Obama administration, the Justice Department began making much more routine use of the Espionage Act to go after officials who provided information to the public through reporters, as opposed to actual spies. The World War I-era law criminalizes the disclosure of potentially damaging national security secrets to someone not authorized to receive them.
On its face, the Espionage Act could also be used to prosecute reporters who publish government secrets. But many legal scholars believe that prosecuting people for acts related to receiving and publishing information would violate the First Amendment.
That notion has never been tested in court, however, because until now the government has never brought such charges. The closest it came was indicting two lobbyists for a pro-Israel group in 2005 who received classified information about American policy toward Iran and passed it on. But that case fell apart after several skeptical pretrial rulings by a judge, and the charges were dropped.
Though he is not a conventional journalist, much of what Mr. Assange does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations like The Times do: seek and publish information that officials want to be secret, including classified national security matters, and take steps to protect the confidentiality of sources.
The Obama administration had also weighed charging Mr. Assange, but rejected that step out of fears that it would chill investigative journalism and could be struck down as unconstitutional. A Justice Department official declined to address whether there was any new evidence that had come to light recently or whether the Trump administration had simply decided to take a step the Obama administration had shied away from.
The three charges that squarely addressed Mr. Assange's publication of government secrets were focused on a handful of files that contained the names of people who had provided information to the United States in dangerous places like the Afghanistan and Iraq war zones, and authoritarian states like China, Iran and Syria.
The evidence laid out in the indictment against Mr. Assange mapped onto information presented by military prosecutors in the 2013 court-martial trial of Ms. Manning. Prosecutors in her case also alleged that her actions endangered the people whose names were revealed in the documents when Mr. Assange published them, though they presented no evidence that anyone was killed as a result.
A Justice Department official declined to say whether any such evidence now exists, but stressed that prosecutors would need to prove in court only what they say in the indictment: that publication put people in danger.
Ms. Manning was sentenced to 35 years in prison -- by far the longest punishment for a leak case in American history. But in one of his last acts in office, President Barack Obama commuted most of the remainder of her sentence in January 2017.
She is now back in jail again, after a judge held her in contempt for refusing to testify about her interactions with Mr. Assange before the grand jury in the Eastern District of Virginia that indicted him.
Ms. Manning's disclosure via WikiLeaks was one of the most extraordinary leaks in American history -- the bulk disclosure of hundreds of thousands of State Department cables that revealed many secret things about the world, dossiers about Guantánamo Bay detainees being held without trial, and logs of significant events in the Afghanistan and Iraq wars that divulged, among other things, that civilian casualties were far higher than official estimates.
When Ms. Manning's disclosures initially vaulted Mr. Assange and WikiLeaks to global fame, he was seen as a villain by the Obama administration and the permanent bureaucracy of law-enforcement and national-security officials, but treated as an icon by transparency and antiwar activists.
His image later transformed significantly when WikiLeaks published archives of Democratic emails that had been stolen and provided to him by the Russian government as part of its covert efforts to help Mr. Trump win the 2016 election. But the legal case against Mr. Assange has nothing to do with those subsequent events.
Mr. Assange was indicted in March 2018 in federal court in Alexandria, Va., on a charge of conspiring to commit unlawful computer intrusion. Prosecutors accused Mr. Assange of agreeing to help Ms. Manning crack an encoded portion of a passcode that would have enabled her to log on to a classified military network under a different user name than her own, which would have masked her tracks better. That came after she had already started sending files, and they have not alleged that his efforts succeeded.
That charge was unveiled in April, when Mr. Assange was arrested in London after being dragged out of the Ecuadorean Embassy, where he had lived for years to avoid capture. The United States has asked Britain to extradite Mr. Assange, who is fighting the move, and the filing of the new charges clears the way for British courts to weigh whether it would be lawful to transfer custody of him to a place where he will face Espionage Act charges.
[2] https://www.nytimes.com/2019/04/11/world/europe/julian-assange-wikileaks-ecuador-embassy.html
[3] https://www.nytimes.com/2010/07/26/world/26editors-note.html