The revelation that US prosecutors have prepared an indictment against Julian Assange, a fact the US government inadvertently made public Thursday evening, has again fanned the flames of speculation over what class of crimes he might be charged with should British authorities finally capture and deposit him on American soil.
Legal experts have long speculated that Assange could face charges under the World War I-era Espionage Act for the dissemination of classified US government documents. But court records reviewed by Gizmodo, which date back more than six years, show prosecutors may have a broader set of laws under which they may choose to indict the WikiLeaks founder, some more problematic than others.
Anxious defenders of the free press have long worried that espionage charges lie in wait for Assange; a prospect that bodes ill for American reporters who obtain and publish classified information.
While the Supreme Court has long upheld the right of journalists to publish illegally obtained information — provided they do not themselves participate in, or conspire to, break the law — it is far from clear whether reporters who expose national secrets, including classified defence information (as Assange repeatedly has), enjoy those same legal protections. Opinions on the matter vary widely.
News of the indictment comes as the special counsel, Robert Mueller, is investigating ties between the Trump campaign and the Russian government, which US intelligence officials have implicated in cyberattacks on Democratic officials amid the 2016 campaign. It was revealed a year ago that the US president's eldest son, Donald Trump Jr. attending a meeting in June 2016 at Trump Tower with a Kremlin-connected lawyer who'd promised damaging information about Hillary Clinton.
Indictments by Mueller finger more than a dozen Russian intelligence officials in hacking the Democrats and, further, using an "organisation" identified by Washington Post sources as WikiLeaks as a vehicle to widely circulate the stolen emails for the purpose of damaging the Clinton campaign and helping Donald Trump get elected. It remained unclear as of Friday, however, whether the events of 2016 and the Justice Department's unintentionally publicised Assange indictment were linked.
The Espionage Act is not the only weapon in the US government's arsenal. For nearly a decade, investigators assigned to the multi-agency Wikileaks investigation have intercepted various communications between Assange and criminal hackers (i.e., his sources) who on myriad occasions broke federal laws while pillaging heaps of classified, confidential, and propriety information.
It is not clear, however, whether prosecutors have uncovered any evidence to prove that Assange had direct knowledge that the hacked Democratic emails published by his anti-secrecy organisation were obtained, as US intelligence has asserted with high confidence, from Kremlin-backed hackers.
But leaked court records, which were sealed by a Manhattan federal judge in 2012 — portions of which have been previously published — show that in the immediate aftermath of the 2011 hack of private intelligence firm Stratfor, Assange may have provided support to another hacking group, a source that provided WikiLeaks with millions of emails stolen from Stratfor's servers. Other documents show that a former FBI informant, Hector Monsegur, repeatedly told fellow hackers that Assange had ordered a cyberattack against a US ally.
Together, the FBI files show the US government has amassed at least circumstantial evidence implicating the WikiLeaks founder as a conspirator in years-old computer crimes, which may also cast doubt on whether WikiLeaks is, as its supporters claim, merely a publisher of whistleblower material protected by under the First Amendment.
In January 2012, hacker Jeremy Hammond — his identity unknown at the time — was recorded in a chat log obtained by the FBI claiming that Assange had personally provided him and other members of the AntiSec hacking group with a crudely coded online search tool. The purpose of the tool was to aid in analysing the more than 5 million internal office emails AntiSec had pilfered from Stratfor's servers.
What Hammond described in early January 2012 as a "search engine script" would have enabled the hackers to more quickly pinpoint valuable information in the spools of stolen emails, which WikiLeaks did not start releasing publicly for more than a month after. The first batch of Stratfor emails appeared on the WikiLeaks site on February 27.
The release of the Stratfor files, a project WikiLeaks code-named "Rock Guitar," was split into six email dumps based on the publishing schedules and deadlines of WikiLeaks' global media partners, all of whom signed a formal agreement not to publish stories before dates assigned by the organisation. The timetable, according to a leaked embargo agreement (which was reformatted by your author), was also based on "elections around the world and legal matters WikiLeaks and Julian are involved in..."
Obtained by the FBI during surveillance of Hammond, internet chat logs reveal that the collaboration between WikiLeaks and AntiSec well exceeded the traditional and, potentially, legally permissible relationship between a First Amendment-protected media outlet and a source offering illegally obtained material.
While it is not unlawful for reporters to accept stolen or hacked documents, it is unusual, to say the least, for journalists to reciprocate by offering the hackers access to home-brewed tools to help better process the data they've stolen.
Hammond, also known by the hacker alias "Anarchaos," pleaded guilty in March 2013 to one violation of the Computer Fraud and Abuse Act (CFAA), for which he was sentenced the maximum 10 years imprisonment eight months later.
Barrett Brown is the only guy I've heard of to be charged with "Accessory After The Fact to an Unauthorized Access to a Protected Computer"
— Andrew Blake (@apblake) December 16, 2014
Whether the US Justice Department would pursue charges against Assange for providing support to AntiSec is unclear. A charge of accessory after the fact in the hacking of Stratfor — which would carry a maximum sentence of 5-years imprisonment — is unlikely; namely, because it would require intent to help Hammond evade law enforcement, according to the statue.
US federal prosecutors in Texas indicted journalist Barrett Brown with doing just that, even though their arguments were often opaque and reliant on the use of digital-to-real-world metaphors mocked by computer experts. (Evidence that would have aided Brown, who faced 62 years in prison when he pleaded guilty to reduced charges in 2014, was also suppressed by the Justice Department.)
Attorney Jay Liederman, a criminal defence attorney who handled several cases involving the CFAA, said US Attorneys could easily replicate the charges against Brown in Assange's case. "If they charged Barrett Brown with identity theft for republishing a link to the Stratfor files, they might try to do the same with Assange," he said. The government's case against Brown was pure "nonsense," he said, adding that the same would be true if the government chose to level the same charges against Assange.
"Charges based on that conduct," he said, would be an "affront to the entirety of the Fourth Estate."
"I've heard from people in Washington that I trust that the charges related to Mr. Assange will concern the DNC emails," said Liederman. Concerning the Trump Tower meeting, he added: "Anything that Assange may have done, Donald Trump Jr., either did the substantive crime along with it, or conspired. Either way, Donald Trump Jr., is guilty of everything they will assert Mr. Assange might've done."
Donald Trump Jr. could not immediately be reached for comment. WikiLeaks did not yet respond to a request for comment.
Beyond the Stratfor hack, the Justice Department also maintains among thousands of sealed FBI files records that show Monsegur repeatedly telling other hackers (while, again, under an FBI cooperation agreement) that his former crew, LulzSec, "hacked Iceland" at the request of a WikiLeaks associate.
(A 2014 Rolling Stone article claims the request to infiltrate Icelandic government systems was made by Sigurdur Thordarson, a WikiLeaks associate close to Assange who later became an FBI informant before being convicted of pressuring underage boys into sex.)
On Thursday, journalist Emma Best published an exhaustive report that, in part, details accounts of WikiLeaks associates soliciting cyberattacks against the Icelandic government, leading officials there into cooperating, at least temporarily, with the FBI investigation of Assange.
— Emma Best (U//FOUO) ????️???? (@NatSecGeek) November 15, 2018
Gizmodo has confirmed the veracity of source material used by Best, based on document metadata and knowledgeable sources linking it to the Southern District of New York; specifically, the series of 2011 chat logs in which Monsegur references the WikiLeaks' request. Additional sealed records not published by her, but obtained and reviewed by Gizmodo, show Monsegur likewise informing other AntiSec hackers of the Icelandic hacks, which he again claims were carried out "for him" (Assange).
The US government has never prosecuted a journalist under the Espionage Act — which is not to say it never will. The limits of the act have simply never been tested. And for any prosecutor eager to push the envelope, they are unlikely to ever find a more desirable test subject: Assange is a foreigner; he does not enjoy the same level of public support and reverence he once did; there are unsettled, albeit widely disregarded, accusations of sexual misconduct against him; and the opinions of many potential jurors are likely to be coloured by pre-conceived notions of his potentially non-existent relationship with Moscow.
But he is also the recipient of a Martha Gellhorn Prize for Journalism; Australia's Walkley Award for Journalism; and the Sam Adams Award, which is bestowed by intelligence veterans, many of whom have been likewise dogged by the US government for defiant acts of transparency.
In an interview on Friday with Democracy Now, attorney Jennifer Robinson, who has provided legal advisement to Assange, said the US indictment should alarm journalists everywhere. "All of the domestic press in the United States, but also what it says about what the United States is doing in terms of exercising jurisdiction over publishers all over the world," she said.
"What does this mean? Does this mean that the US could seek to prosecute a publisher who's publishing from abroad about material about the United States? Will Russia, will Saudi Arabia, will China start to follow suit?"
While the Espionage Act prohibits specifically the disclosure of "national defence information" that the possessor "has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," that's a definition that could theoretically apply to any number of people working today at the Washington Post, up to and including the executive editor, Martin Baron, himself.
But the courts have also found "specific intent" (as opposed to intent which is merely inferred) to be a requisite of espionage convictions; i.e., it falls on prosecutors to prove, beyond the shadow of a reasonable doubt, that Assange not only knew that publishing national secrets would harm the United States, but that the harm itself was his specific purpose all along.
Whatever evidence the US government's sweeping criminal investigation into Assange has uncovered over the past nine years, that's a daunting hurdle to clear. It will need to prove that WikiLeaks' stated mission ("to receive information from whistleblowers and censored journalists, release it to the public, and then defend against the inevitable legal and political attacks") is merely a cover for something far more sinister.
"The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists," former Justice Department spokesman Matthew Miller told the Washington Post in 2013.
"And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange."
The question now is whether the US government will be determined to roll the dice with an espionage charge or find an easier route to seeing Assange locked behind bars.