On Thursday morning, the Ecuadorian government revoked their offer of asylum to WikiLeaks founder Julian Assange. He was then arrested by the London police, and held on a combination of a minor charge in the UK and an extradition request from the United States. The Department of Justice has released a statement on the charges against Assange making it clear that he is not being held for anything in connection with the 2016 election, but for his actions in 2010 when WikiLeaks published a series of nearly 750,000 classified or diplomatically sensitive documents related to the war in Iraq.
However, the indictment is not against Assange’s publication of the documents. Instead, it charges that Assange provided assistance to whistleblower Chelsea Manning “in cracking a password stored on U.S. Department of Defense computers connected to the Secret Internet Protocol Network (SIPRNet).” On a purely legal basis, this removes the government’s action from First Amendment realm where Assange and WikiLeaks would enjoy the same protections as publishers in other cases where classified documents were revealed to the public. However, that doesn’t mean this case does not have profound implications, or that the government’s actions here are in any sense completely on solid ground.
For one thing, it’s not clear that Assange actually provided Manning with any material aid, or that the pair was successful in obtaining a password that provided additional access. In fact, the government charge never makes such a claim. It appears instead that the DOJ has latched onto a minor event during the publication of these documents and is trying to turn it into a point of prosecution expressly to avoid dealing with the idea that they’re engaging in an effort to suppress publication—which they are.
It’s also clear that during the 2016 election, Julian Assange knowingly and willingly conspired with agents of the Russian government to publish information stolen from private citizens through illegal intrusion. But even then, it’s absolutely not clear that Assange’s actions, as a publisher, would not still be covered by protections under the First Amendment. It’s entirely possible that Assange could face charges of being part of the same conspiracy under which the special counsel’s office charged the Russian hackers. Or not.
On a moral basis, Assange’s actions in the 2016 election seem indefensible. He was clearly not acting in a position of a dispassionate observer, but in coordination with both the Russian government and the Trump campaign with the explicit intent of harming Democratic candidate Hillary Clinton. Just as in Rob Goldstone’s email to Donald Trump Jr., Assange was part of the Russian government’s program to help Trump. His actions were not just partisan, but deceptive. He knew the source of his information, and both the selections released and the timing of their release was done in a way to generate maximum benefit to Trump. He used stolen goods for the material benefit of both Trump and WikiLeaks.
On a legal basis, the situation is anything but clear. By indicting Assange on the hacking charge, the DOJ appears to be trying to conduct an end-around effort in which it doesn’t have to face questions connected to freedom of the press. If this indictment remains the only charge against Assange, then the government’s case could be reckoned as exceedingly weak, and it seems unlikely any court would allow the case to proceed along the kind of strictly limited lines the DOJ is presenting.
If the DOJ actually wants to see Assange hit with a charge that sticks, they may have to seek something closer to conspiracy against the United States related to his actions in 2016. It’s absolutely unclear that they’ll make such a charge.
However, there is another factor. Assange did not seek asylum in 2012 simply to avoid charges over the Manning case. It was to avoid a charge of sexual assault in Sweden, with indications that other similar charges were possible. While Assange was sitting in the Ecuadorian embassy for the last seven years, that sexual assault case was suspended and a previously issued extradition order from Sweden lapsed. Now that Assange has been pried from his lair—an event aided, apparently, by Assange threatening his hosts, making a constant mess, and failing to clean up after his cat—the case in Sweden may be revived.
According to The Local, the attorney representing the woman who initiated the assault case is moving to see the investigation continued and extradition order restored. Her hope is to see Assange “extradited to Sweden and be prosecuted for rape.” Swedish officials indicated that they were taken by surprise by news of Assange’s arrest and there doesn’t seem to be any official action at this point.
The statute of limitations on Assange’s alleged crime in Sweden would expire in 2020. If Sweden is going to move, they deserve the first swing at Assange.