The founder of WikiLeaks, Julian Assange, is likely to be extradited to the United States and convicted, believes Washington DC lawyer Bradley P Moss.
Moss is deputy executive president of the James Madison Program, which promotes the idea of transparency in government. He is a partner in the firm of Mark S Zaid, where he specialises in national security and security clearance law, as well as freedom of information issues.
His concern that a US prosecution of Assange would have press freedom implications was alleviated when the indictment was published last week, he said. “It’s very narrow. Assange is being accused of doing what journalists are trained not to do.”
Prior to the indictment being published, Moss had concerns that the US would argue that Assange was not acting as a bona fide journalist when working on leaks secured from Chelsea Manning, an intelligence analyst for the US army in Iraq in 2010 and 2011. Such a charge could have raised serious problems to do with the government defining who is and is not a journalist.
Classified material
Likewise Moss was worried that the indictment might focus on the publication of classified material, which would also have implications for the freedom of the press.
“But they split the baby. The charges are not to do with encouraging Manning to leak documents that Manning had access to. Assange took it a step further than that.”
The indictment alleges that Assange helped Manning break a password that allowed her get access to documents that she was not authorised to access.
Traditional journalists would not help or encourage sources to break the law to access material they don’t normally have access to, says Moss.
He believes that Assange, if convicted and jailed, may have to be kept in solitary confinement, to protect him from other prisoners. Senior figures in the US government have in the past described Assange as a terrorist and a threat to national security.
The large amounts of security data that was published by WikiLeaks put a lot of people in danger, says Moss. “Local informants in places such as Afghanistan and Iraq had their lives put at risk. As far as I know, no one actually died, but that is not the issue.”
Kate Shanahan, head of journalism at TU Dublin, believes that aspects of the Assange indictment do raise press freedom concerns, citing mention of Assange encouraging Manning to get more material, and the use of encryption and the Jabber online chat service by Assange and his source. “That’s normal for investigative journalism.”
Shanahan also feels that the Assange case could be used as a “door-opener” in the US for other attacks on the media, given current hostility to the press under US president Donald Trump. A conviction of Assange in the US, she believes, would be a blow to press freedom.
Legal protections
Associate professor of law at TCD, Eoin O’Dell, says there are powerful legal protections in the US for the protection of sources and the publication of confidential information, but not for breaking the law when engaged in news gathering.
The line between legitimate news gathering and conspiring with a source in wrongdoing is likely to be a major focus of the Assange case, both in the UK, and in the US if he is extradited, O’Dell believes.
In the UK, and if necessary in the US, Assange will assert his freedom of expression rights, respectively, under the European Convention of Human Rights and the US constitution. “He probably has a stronger chance of success in the US.”
Assange’s recklessness in his treatment of the confidential material that came his way, will not make his case any easier, according to the TCD academic.
Dublin media lawyer Andrea Martin says that Assange “may not be a likable character” but his case will raise the important question as to whether, on balance, globally and in the US, the public interest was better served by his work with WikiLeaks.
The 1971 ruling by the US supreme court, in the case of the New York Times and the Pentagon Papers, sets a precedent for the issues that will now arise in the Assange case, Martin said.
Cracking password
The indictment says that in March 2010 “Assange agreed to assist Manning in cracking a password stored on” the US department of defence computer system.
A portion of the password Manning gave to Assange to crack was stored in a location to which Manning did not have a right of access, the indictment says. She used special software to get access.
The indictment then goes on to say “cracking the password would have allowed Manning to log on to the computers using a username that did not belong to her.”
It also says that “prior to the password-cracking agreement, Manning had already provided WikiLeaks with hundreds of thousands of classified records”.
There is otherwise no detail about the alleged assistance Assange gave Manning in hacking into the US system.
The press release that accompanied the publication of the six-page indictment said Assange was being accused of conspiracy to commit computer intrusion for agreeing to break a password to a classified US computer.
Assange’s UK lawyer, Jennifer Robinson, says the US charge is “called conspiracy. It’s conspiracy to commit journalism and we urge everyone to support Julian Assange in fighting this extradition”.
The case “means that any journalist can be extradited for prosecution in the United States for having published truthful information about the United States”.
