Many people, including some former admirers, have come to loathe Julian Assange. But you don’t have to like the founder of WikiLeaks to worry about whether his federal indictment – unsealed Thursday after he was arrested at the Ecuadorean Embassy in London – portends a crackdown on freedom of the press.

That concern is eased to some degree – but not entirely – by the fact that the indictment doesn’t charge Assange with a crime for publishing classified information on WikiLeaks. That would truly have been a frontal assault on what journalists do on a regular basis. Rather, the indictment alleges that Assange conspired in 2010 with Chelsea Manning, an Army intelligence analyst in Iraq, to crack a government password in search of secret material to divulge.

That’s an enormously important distinction. Journalists are rightly protected by the First Amendment even when they publish classified information that has been provided to them by leakers. But if Assange indeed crossed a line by conspiring to facilitate the theft of the information, that’s a very different matter.

The alleged plan to crack the password was apparently unsuccessful, but WikiLeaks did release thousands of files Manning downloaded. Some of the disclosures, such as a 2007 video of an Apache helicopter attack that killed 12 civilians in Baghdad, qualified as whistleblowing. But others, including confidential diplomatic cables, undermined U.S. foreign policy without exposing any wrongdoing. Manning served seven years of a 35-year prison sentence before receiving a commutation of her sentence from then-President Barack Obama.

More recently, WikiLeaks was responsible for the release of thousands of Democratic emails during the 2016 election campaign, emails that special counsel Robert Mueller said were provided by Russian operatives. (Assange has denied any links to Russian intelligence.) In 2017, then-CIA Director Mike Pompeo described WikiLeaks as “a non-state hostile intelligence service often abetted by state actors like Russia.”

Whether one agrees with Assange’s tactics or not, it would have been highly alarming if the Justice Department had chosen to prosecute him under the Espionage Act, which makes it a crime to transfer sensitive defense information to “any person not entitled to receive it.” Treating the publication of such information as a violation of the Espionage Act could deter whistleblowers, keep the public in the dark about official wrongdoing and would put an unreasonable obstacle in the way of journalists.

The indictment unsealed Thursday fortunately steers clear of setting such a precedent. Although it alleges that Assange and Manning sought to hack a Defense Department computer “in furtherance of a criminal act in violation of the laws of the United States,” including provisions of the Espionage Act, the actual charge is that Assange conspired with Manning to commit the crime of computer intrusion.

Even if one regards Assange as a journalist, that doesn’t exempt him from complying with a law against computer fraud. The burden is on the government to prove that he conspired to violate the law. Meanwhile, like any other criminal defendant, he is presumed innocent until proven guilty.

While it is a relief that Assange isn’t being prosecuted for merely publishing classified information, the indictment nevertheless has some ominous implications. For example, it cites as part of the conspiracy that “Assange encouraged Manning to provide information and records from departments and agencies of the United States.” According to the indictment, Manning told Assange that “after this upload, that’s all I really have got left.” Assange replied: “Curious eyes never run dry in my experience.”

Robert Mahoney, deputy director of the Committee to Protect Journalists, worried that this language might foreshadow “broad legal arguments about journalists soliciting information or interacting with sources that could have chilling consequences for investigative reporting and the publication of information of public interest.”

Whatever happens to Assange, that would be a tragedy.

 


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