The Trump Justice Department inadvertently revealed in a court filing that it has charged Julian Assange in a sealed indictment. The disclosure occurred through a remarkably amauetrish cutting-and-pasting error in which prosecutors unintentionally used secret language from Assange’s sealed charges in a document filed in an unrelated case. Although the document does not specify which charges have been filed against Assange, the Wall Street Journal reported that “they may involve the Espionage Act, which criminalizes the disclosure of national defense-related information.” Over the last two years, journalists and others have melodramatically claimed that press freedoms were being assaulted by the Trump administration due to trivial acts such as the President spouting adolescent insults on Twitter at Chuck Todd and Wolf Blitzer or banning Jim Acosta from White House press conferences due to his refusal to stop preening for a few minutes so as to allow other journalists to ask questions. Meanwhile, actual and real threats to press freedoms that began with the Obama DOJ and have escalated with the Trump DOJ – such as aggressive attempts to unearth and prosecute sources – have gone largely ignored if not applauded. But prosecuting Assange and/or WikiLeaks for publishing classified documents would be in an entirely different universe of press freedom threats. Reporting on the secret acts of government officials or powerful financial actors – including by publishing documents taken without authorization – is at the core of investigative journalism. From the Pentagon Papers to the Panama Papers to the Snowden disclosures to publication of Trump’s tax returns to the Iraq and Afghanistan war logs, some of the most important journalism over the last several decades has occurred because it is legal and constitutional to publish secret documents even if the sources of those documents obtained them through illicit or even illegal means. The Obama DOJ – despite launching notoriously aggressive attacks on press freedoms – recognized this critical principle when it came to WikiLeaks. It spent years exploring whether it could criminally charge Assange and WikiLeaks for publishing classified information. It ultimately decided it would not do so, and could not do so, consistent with the press freedom guarantee of the First Amendment. After all, the Obama DOJ concluded, such a prosecution would pose a severe threat to press freedom because there would be no way to prosecute Assange for publishing classified documents without also prosecuting the New York Times, the Washington Post, the Guardian and others for doing exactly the same thing. As the Washington Post put it in 2013 when it explained the Obama DOJ’s decision not to prosecute Assange: Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper. Last year, the Trump DOJ under Jeff Sessions, and the CIA under Mike Pompeo, began aggressively vowing to do what the Obama DOJ refused to do – namely, prosecute Assange for publishing classified documents. Pompeo, as CIA Director, delivered one of the creepiest and most anti-press-freedom speeches heard in years, vowing that “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us,” adding that WikiLeaks has “pretended that America’s First Amendment freedoms shield them from justice,” but: “they may have believed that, but they are wrong.” Remarkably, the speech by Donald Trump’s hand-picked CIA chief and long-time right-wing Congressman sounded like (and still sounds like) the standard Democratic view when they urge the Trump administration to prosecute Assange. But at the time of Pompeo’s speech, Obama DOJ spokesman Matt Miller insisted to me that such promises to prosecute Assange were “hollow,” because the First Amendment would bar such prosecutions: it’s also hollow. DOJ knows it can’t win a case against someone just for publishing secrets. — Matthew Miller (@matthewamiller) April 13, 2017 But the grand irony is that many Democrats will side with the Trump DOJ over the Obama DOJ. Their emotional, personal contempt for Assange – due to their belief that he helped defeat Hillary Clinton: the gravest crime – easily outweighs any concerns about the threats posed to press freedoms by the Trump administration’s attempts to criminalize the publication of documents. This reflects the broader irony of the Trump era for Democrats. While they claim out of one side of their mouth to find the Trump administration’s authoritarianism and press freedom attacks so repellent, they use the other side of their mouth to parrot the authoritarian mentality of Jeff Sessions and Mike Pompeo that anyone who published documents harmful to Hillary or which have been deemed “classified” by the U.S. Government ought to go to prison. During the Obama years, the notion that Assange could be prosecuted for publishing documents was regarded as so extreme and dangerous that even centrist media outlets that despised him sounded the alarm for how dangerous such a prosecution would be. The pro-national-security-state Washington Post editorial page in 2010, writing under the headline “Don’t Charge WikiLeaks,” warned: Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered. In contrast to Democrats, Republicans have been quite consistent about their desire to see WikiLeaks prosecuted. As Newsweek noted in 2011: “Sarah Palin urged that Assange be ‘pursued with the same urgency we pursue Al Qaeda and Taliban leaders,’ and The Weekly Standard’s William Kristol wants the U.S. to ‘use our various assets to harass, snatch or neutralize Julian Assange and his collaborators.’” Some Democratic hawks, such as Joe Lieberman and Dianne Feinstein, joined the likes of Palin and Kristol in urging WikiLeaks prosecution, but the broad consensus in Democratica and liberal circles was that doing so was far too dangerous for press freedoms. What has changed since that Obama-era consensus? Only one thing: in 2016, WikiLeaks published documents that reflected poorly on Democrats and the Clinton campaign rather than the Bush-era wars, rendering Democrats perfectly willing, indeed eager, to prioritize their personal contempt for Assange over any precepts of basic press freedoms, civil liberties, or Constitutional principles. It’s really just as simple – and as ignoble – as that. It is this utterly craven and authoritarian mentality that is about to put Democrats of all sorts in bed with the most extremist and dangerous of the Trump faction as they unite to create precedents under which the publication of information – long held sacrosanct by anyone caring about press freedoms – can now be legally punished. Recall that the DNC itself is currently suing WikiLeaks and Assange for publishing the DNC and Podesta emails they received: emails deemed newsworthy by literally every major media outlet, which relentlessly reported on them. Until this current Trump DOJ criminal prosecution of Assange, that DNC lawsuit had been the greatest Trump-era threat to press freedoms – because it seeks to make the publication of documents, which is the core of journalism, legally punishable. The Trump DOJ’s attempts to criminalize those actions is merely the next logical step in this descent into a full-scale attack on basic press rights. The arguments justifying the Trump administration’s prosecution of Assange are grounded in a combination of legal ignorance, factual falsehoods, and dangerous authoritarianism. The most common misconception is that unlike the New York Times and the Washington Post, WikiLeaks can be legitimately prosecuted for publishing classified information because it’s not a “legitimate news outlet.” Democrats who make this argument don’t seem to care that this is exactly the view rejected as untenable by the Obama DOJ. To begin with, the press freedom guarantee of the First Amendment isn’t confined to “legitimate news outlets” – whatever that might mean. The First Amendment isn’t available only to a certain class of people licensed as “journalists.” It protects not a privileged group of people called “professional journalists” but rather an activity: namely, using the press (which at the time of the First Amendment’s enactment meant the literal printing press) to inform the public about what the government was doing. Everyone is entitled to that constitutional protection equally: there is no cogent way to justify why the Guardian, ex-DOJ-officials-turned-bloggers, or Marcy Wheeler are free to publish classified information but Julian Assange and WikiLeaks are not. Beyond that, WikiLeaks has long been recognized around the world as a critical journalistic outlet. They have won prestigious journalism awards including the Martha Gellhorn Prize for excellence in journalism as well as Australia’s top journalism award. Beyond that, it has partnered with the planet’s leading newspapers, including the New York Times, the Guardian, El Pais and others, to publish some of the most consequential stories of the last several decades One does not need to be a “legitimate journalism outlet” to enjoy the press freedom protections of the First Amendment, but even if that were the case, WikiLeaks has long possessed all indicia of a news outlet. Then there’s the claim that WikiLeaks does more than publish documents: it helps its sources steal them. This was the claim made last night by former CIA agent John Sipher when trying to justify the Trump DOJ’s actions in response to concerns from a journalist about the threats to press freedom this would pose: No. Assange’s crime is aiding and abetting. He encouraged Manning to steal classified documents (similarly to how he encouraged Trump Jr. to claim the electron was rigged). He was not a place to publish whistle blowers. He was a thief and assistant to Putin. — John Sipher (@john_sipher) November 16, 2018 What Sipher said there is a complete fabrication. When the Obama DOJ explored the possibility of prosecuting Assange, that was the theory it tested: that perhaps it could prove that WikiLeaks did not merely passively receive the documents from Chelsea Manning but collaborated with her on how to steal them. But the Obama DOJ concluded that this theory would not justify prosecution because – contrary to the lie told by Sipher – there was absolutely no evidence that Assange worked with Manning to steal the documents. As the Post put it: “officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.” The same is true of WikiLeaks’ publication of the DNC and Podesta emails. Nobody has ever presented evidence of any kind that WikiLeaks worked on the hacking of those emails. There is no evidence that WikiLeaks ever did anything other than passively receive pilfered documents from a source and then publish them – exactly as the New York Times did when it received the stolen Pentagon Papers, and exactly as the Guardian and the Washington Post did when it received the Snowden documents. Moreover, journalists often do more than passively receive information, but instead frequently work with sources before publication of articles: encouraging, cajoling, and persuading them to provide more information. Accepting the theory that a journalist can be prosecuted for doing more than merely passively receiving information – something that nobody has even proved Assange did – would itself gravely threaten to criminalize core aspects of journalism. Then there’s the claim that WikiLeaks somehow stopped being a real journalism outlet because it acted to help one of the presidential campaigns at the expense of of the other. This is just another version of the false argument that only “Real Journalists” – whatever that might mean, whoever gets to decide that – enjoy the right to use a free press to disseminate information. That claim is pure legal ignorance. But let’s assume for the sake of argument that it’s true that WikiLeaks acted to help the Trump campaign and therefore should be disqualified from the protections of the First Amendment. To see how pernicious this argument is, look at how it was recently expressed by former Pentagon official Ryan Goodman and Obama WH Counsel Bob Bauer in justifying the prosecution of WikiLeaks: It is clear from disclosures by an internal WikiLeaks critic and other materials that Julian Assange targeted Hillary Clinton and sought to work with the Trump campaign and the Russians to secure her defeat. This is not a “legitimate press function.” And the conflation of Wikileaks’ plan of campaign attack with standard journalistic activity undermines important distinctions critical to the protection of the free press. Just ponder the implications of this incredibly restrictive definition of journalism. It would mean that any outlets that favor one candidate over another, or one political party over another, are not engaged in “legitimate press functions” and therefore have no entitlement to First Amendment protections. Does anyone on the planet doubt that outlets such as MSNBC and Vox favor the Democratic Party over the Republican Party, and the people they employ as journalists spent the last year doing everything they can to help the Democrats win and the Republicans lose? Does anyone doubt that MSNBC and Vox journalists spent 2016 doing everything in their power to help Hillary Clinton win and Donald Trump lose? No person with even the most minimal amount of intellectual honesty could deny that they did so. Does this mean that Rachel Maddow and Ezra Klein – by virtue of favoring one political party over the other – are not real journalists, that they are not engaged in “legitimate press functions,” and thus do not enjoy the protections of the First Amendment, meaning they can be prosecuted by the Trump DOJ without the ability to claim the rights of a free press? To state that proposition is to illustrate the tyrannical impulses underlying it. As Marcy Wheeler, otherwise sympathetic to the arguments made by the Goodman/Bauer article, put it: I agree with much of this analysis abt limits on 1A protection for Trump’s conspiring w/Russians. But this claim would threaten a lot of journalistic activity and is fundamentally at odds with the early history of journalism in this country. pic.twitter.com/nBHkU69THI — emptywheel (@emptywheel) November 2, 2018 As Dan Froomkin wrote in response to that article, he finds some of Assange’s actions “despicable” and “abhorred the heedless, unedited publication of the non-newsworthy and personally hurtful” emails that were released (I have expressed similar highly critical views about WikiLeaks’ publication decisions). But Froomkin nonetheless recognizes that “Assange remains a journalist” and that “In the Trump era, when the president of the United States is using his office to attack journalists and journalism itself, the First Amendment is a key bulwark of liberty.” That’s how people who actually care about press freedom – rather than pretend to care about it when doing so suits their political interests of the moment – will reason. But that’s exactly the point. Neither the most authoritarian factions of the Trump administration behind this prosecution, nor their bizarre and equally tyrannical allies in the Democratic Party, care the slightest about press freedoms. They only care about one thing: putting Julian Assange behind bars, because (in the case of Trump officials) he revealed U.S. war crimes and because (in the case of Democrats) he revealed corruption at the highest levels of the DNC that forced the resignation of the top 5 officials of the Democratic Party and harmed the Democrats’ political reputation. They’re willing to create a precedent that will criminalize the core function of investigative journalism because – even as they spent two years shrilly denouncing that most trivial “attacks on press freedom” – they don’t actually care about that value at all. They want to protect only the journalism that advances their political interests, while putting people behind bars who publish information that undermines their political interests. It is this authoritarian, noxious mentality that has united the worst elements of the Trump administration and the Democratic Party that pretends to find tyrannical actions objectionable but is often the leaders in defending them. The post As the Obama DOJ Concluded, Prosecution of Julian Assange For Publishing Documents Poses Grave Threats to Press Freedom appeared first on The Intercept.
Whistleblower Reality Winner was officially sentenced to 63 months in prison on Thursday, after a federal judge rubber-stamped a plea deal already agreed to by the prosecution and Winner’s lawyers. As the prosecution acknowledged, it is the longest sentence for a journalist’s source in federal court history. The defense agreed to the plea deal in part to bring closure to Winner and her family. Her mother, Billie Winner-Davis, said when the plea was first announced that it was in her daughter’s “best interest” since the Espionage Act does not afford her any public interest defense. But it should not bring closure to the crucial issues raised by this case, namely, the Justice Department’s contention that “national security” claims by the executive branch can never be challenged; that the executive branch has the sole authority to decide when information should be secret; and that the DOJ can prosecute journalists’ sources for “harming” national security with no public evidence whatsoever. At issue in Winner’s case is a document she leaked to a news outlet. The Intercept published an article on June 5, 2017 about a five-page National Security Agency (NSA) report that detailed how alleged Russian hackers targeted election vendors with phishing attacks in an attempt to access voters rolls in several states. The Intercept was not aware of the identity of the source who provided the document, though other news organizations connected it to Winner. In its sentencing memorandum two weeks ago, the prosecution made several dubious statements about why a sentence of this unprecedented length was necessary, chiefly that “the defendant’s unauthorized disclosure caused exceptionally grave harm to our national security,” a claim that was repeated several times. U.S. Attorney for the Southern District of Georgia Bobby Christine, who was appointed last year by President Donald Trump, went further on Thursday, calling Winner “a quintessential example of an insider threat.” “Winner will serve a term of incarceration that will give pause to others who are entrusted with our country’s sensitive national security information and would consider compromising it,” Christine told reporters after the sentencing at the federal courthouse in Augusta, Ga. “Anyone else who may think of committing such an egregious and damaging wrong should take note of the prison sentence imposed today and the very real damage done.” The government did not produce one iota of public evidence to back up its claims, citing only an unnamed “expert” whose comments are completely classified, and referring to the “top secret” marking on the document that they say “by definition” proves their point. But new evidence published by The Intercept for the first time today, along with one of Special Counsel Robert Mueller’s recent indictments, undercuts the government’s claims. When The Intercept first published the top-secret document, reporters and editors went to the government — as they do every time The Intercept publishes classified documents — to hear the NSA’s views about any information that might truly harm national security. After listening to the agency’s arguments, and out of an abundance of caution, The Intercept redacted a few pieces of information from the document before publishing it. A key phrase that the government wanted withheld was the specific name of the Russian unit identified in the document. The government was particularly insistent on that point. Since it wasn’t vital to the story that the unit’s name be revealed, nor was it clear — at least at the time — that revealing the unit’s name was in the public interest, The Intercept agreed to withhold it. But in the indictment of alleged Russian military intelligence operatives that Mueller’s office released last month, the Justice Department revealed the same name: GRU unit 74455. (The unit is also known as the Main Center for Special Technology or GTsST.) The indictment went on to reveal information almost identical to that contained in the document Winner admits to disclosing: In or around June 2016, KOVALEV and his co-conspirators researched domains used by U.S. state boards of elections, secretaries of state, and other election-related entities for website vulnerabilities. KOVALEV and his co-conspirators also searched for state political party email addresses, including filtered queries for email addresses listed on state Republican Party websites. In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers In or around August 2016, KOVALEV and his co-conspirators hacked into the computers of a U.S. vendor (“Vendor 1”) that supplied software used to verify voter registration information for the 2016 U.S. elections. KOVALEV and his co-conspirators used some of the same infrastructure to hack into Vendor 1 that they had used to hack into SBOE 1. The Justice Department is trying to have it both ways: It’s OK for Mueller to publicly release this information in an attempt to prosecute alleged Russian hackers because it’s in the public interest. But at the exact same time, the government is also claiming that a document including very similar information causes grave harm to national security when disclosed to the public by someone else. Maybe timing was the issue, you might say. Maybe the government is arguing that the Winner document, released more than a year before the Mueller indictment, somehow could have tipped off the accused Russian operatives that the NSA was spying on them. But the special counsel’s allegations point to a different conclusion. In the indictment of the alleged Russian intelligence officers, the Special Counsel’s Office describes how the FBI itself tipped off the GRU unit to the U.S. surveillance almost a year before The Intercept published the NSA document. As the indictment notes: In or around August 2016, the FBI issued an alert about the hacking of SBOE 1 and identified some of the infrastructure that was used to conduct the hacking. In response, KOVALEV deleted his search history. KOVALEV and his co-conspirators also deleted records from accounts used in their operations targeting state boards of elections and similar election related materials. If the GRU was already aware that the U.S. was watching its activities in 2016 — thanks to the FBI and not the media — how could the Winner document have “gravely harmed” national security almost a year later? Even without the Mueller indictment, the claim that the release of the NSA document seriously endangered national security was specious to begin with. There were no “sources and methods” in anything The Intercept published. By the summer of 2017, Russia’s attempted cyberattacks around the 2016 election had been widely reported. Reality Winner walks out of the courthouse in Augusta, Ga., after her sentencing on Aug. 23, 2018. Photo: Dustin Chambers for The Intercept Regardless of the government’s claims, it should be crystal clear to anyone who reads the newspaper that there is significant public interest is the information that Winner has admitted to disclosing. Russian interference in the 2016 election is still front-page news almost two years later. The federal government kept several states allegedly targeted by hackers in the dark about the specifics of these attacks until The Intercept published its story. In fact, the day after The Intercept’s story came out, the Election Assistance Commission — the federal agency in charge of assisting state election officials — wrote an urgent bulletin to states, calling the report “credible” and urging state officials to read it. The EAC then provided advice on how to take action. (The commission, unbelievably, tweeted the hashtag #RealityWinner to promote its bulletin on social media). The long history of the U.S. government claiming that a document published by the press was a “closely held” secret — when in fact it was anything but — may be why J. William Leonard, the former classification czar under George W. Bush, agreed to act as a defense witness for Reality Winner on a pro bono basis. Since leaving office in the mid-2000s, Leonard has sought to draw attention to abuses within the U.S. government classification regime and has acted as an expert witness in several leak investigations. Leonard has also testified to Congress several times about our broken secrecy system. In 2016, he spoke before the House Oversight Committee about leak prosecutions similar to Winner’s: “The opaque nature of the classification system can give the government a unilateral and almost insurmountable advantage when it is engaged in an adversary encounter with one of its own citizens, an advantage that is just too tempting for many government officials to resist.” He went on to explain in his congressional testimony that even as government employees are regularly and harshly punished for revealing information that the government considers secret, “to my knowledge no one has ever been held accountable and subjected to sanctions for abusing the classification system or for improperly classifying information.” Leonard never got to testify in the Winner trial, so the court will never hear his expert opinion on the document at issue. What we do know is that the executive branch under both parties has insisted for decades that the classification of documents is virtually unreviewable by either the judiciary branch or Congress. And history is littered with examples of the government abusing its classification authority. If you want to understand how the government classifies virtually any information in the national security space, no matter how benign, just read this recent account from BuzzFeed’s Jason Leopold about an “illegal animal killing” on CIA property involving a government employee. After Leopold got wind of an Inspector General report on the subject, he filed a FOIA request for more information. The CIA stonewalled him and withheld the IG report on the incident in full, claiming it would “harm national security” to release it — or even to disclose the type of animal that was killed. So Leopold sued. Three years later, the government finally relented and revealed that the animal in question was a deer. The rest of the report remains classified. It is, of course, conceivable that some unknown detail in the document Winner disclosed could have caused consternation at NSA headquarters. But because the government will never tell the public how something “damaged” national security, and uses the secrecy system to ensure that its arguments cannot be challenged, we’ll never know. We’ll also never know exactly how much national security damage the government caused by not releasing this information to state election officials and the public much earlier. In Augusta on Thursday, Winner spoke about her now-deceased father, who she said “expected us to engage in intellectual discourse as soon as we were out of diapers.” She said that like many Americans, her family was deeply affected by the attacks of Sept. 11, 2001, which sparked her interest in“the languages and the cultures of the countries involved.” Winner joined the Air Force, then left to further her education and seek humanitarian work. She took a job at the government contractor Pluribus to “improve the language skills I developed in the Air Force.” In a small measure of relief for Winner and her advocates, Judge Randal Hall endorsed her request to be sent to FMC Carswell, a Forth Worth federal medical facility where she will be about a seven-hour drive from her family in Kingsville, Texas. In court, Winner mentioned her 12-year struggle with bulimia, calling it “the most pressing internal challenge in my day-to-day survival,” and said that seeking treatment is one of her top goals. Her defense attorneys requested the Fort Worth facility so Winner could receive adequate medical care and “further her humanitarian objectives” through assisting other inmates with “debilitating illnesses.” Taylor Barnes contributed reporting. Top photo: Reality Winner walks out of the Federal Courthouse in Augusta, Ga., on June 26, 2018. The post The Government’s Argument that Reality Winner Harmed National Security Doesn’t Hold Up. Here’s Why. appeared first on The Intercept.
Reality Winner, who pleaded guilty, “knowingly and intentionally betrayed the trust of her colleagues and her country,” the prosecutor said.
Government investigators suspect that Joshua A. Schulte provided WikiLeaks, the anti-secrecy organization, with a stolen archive of documents detailing the C.I.A.’s hacking operations.
After the release of C.I.A. hacking tools last year, The Times has learned the suspect’s identity. He’s been charged, but in a separate child pornography case.