There's a critical flaw in the US indictment against Julian Assange. It changes everything

Following the arrest of WikiLeaks founder Julian Assange, The Canary has examined the evidence available in relation to the US indictment against him. And we have reached the conclusion that the indictment is seriously flawed.

But it’s not about Assange himself. It’s about the way the indictment is worded.

Charges

On 11 April 2019, the US Attorney’s Office, Eastern District of Virginia released a statement summarising the charges against Assange. Reference was made to the (unsealed) indictment – a copy of which is here.

The charges in the indictment recycle allegations that were previously reported by Wired in December 2011. According to that publication, these are the chat logs alleged to be between US army analyst Chelsea Manning and WikiLeaks.

Manning and Assange

In a report early on in Manning’s trial, it was alleged that one of the messages on a computer drive used by Manning said:

You can currently reach our investigations editor directly in Iceland – 354 862 3481 – 24 hour service – Ask for Julian Assange.

In relation to this, the indictment against Assange claims that:

discussions also reflect Assange actively encouraging Manning to provide more information. During an exchange, Manning told Assange that ‘after this upload, that’s all I really have got left.’ To which Assange replied, ‘curious eyes never run dry in my experience.’

However, this is simply stating that a source was encouraged to provide further information – which is what all journalists do.

In February 2019, Chelsea Manning was asked to testify to the East Virginia Grand Jury – the same Grand Jury which has indicted Assange. Manning refused, saying she had already provided a detailed statement to her court martial on her role in and the methods used to upload documents to WikiLeaks. Consequently, she has been imprisoned for an indefinite time

Storage of documents

Elsewhere in the indictment, it states:

it was part of the conspiracy that Assange and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records containing information related to the national defense of the United States.

What is referred to here is the facility known as SecureDrop, which helps anonymise receipt of documents. This same facility is used by numerous media outlets around the world. These include the Financial Times, Huffington Post, BuzzFeed, the Guardian, the New York Times and the Intercept.

Protecting source

The indictment similarly alleges that:

it was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks, including by removing usernames from the disclosed information and deleting chat logs between Assange and Manning.

However, protecting the identity of a source is again what all journalists do. Human Rights Watch executive director Kenneth Roth agrees:

It is dangerous to suggest that these actions [as listed in the indictment] are somehow criminal rather than steps routinely taken by investigative journalists who communicate with confidential sources to receive classified information of public importance.

UN report on protecting journalism sources in the digital age

A UN report into protecting journalism in the digital age covers some of the allegations in the indictment. Amongst its recommendation it advocates:

the value to the public interest of source confidentiality protection, with its legal foundation in the right to freedom of expression (including press freedom), and to privacy.

And it adds that:

source protection should extend to all acts of journalism, and across all platforms, services and mediums (of data storage and publication), and that it includes digital data and meta-data.

Also it recommends that it is important to:

shield acts of journalism from targeted surveillance, data retention and handover of material connected to confidential sources.

More charges?

Meanwhile, WikiLeaks editor-in-chief Kristinn Hrafnsson says that if Assange is extradited to the US he could face more charges. He uses the Espionage Act as an example – the contravention of which includes the death penalty:

A guilty verdict under the US Espionage Act could see the death penalty applied. However, under UK law an extradition request can be rejected if the destination country (e.g. the US) provides for such a penalty and offers no assurance it will not be applied. (An extradition request can also be rejected if charges raised are seen as ‘political’’.)

And in the latest twist, it is possible that an extradition request from Sweden may be lodged too. A move that 70 MPs and peers have backed in a letter to home secretary Savid Javid.

Solidarity

Birgitta Jónsdóttir is a former Icelandic Pirate Party MP and the co-publisher of Collateral Murder, the video that graphically showed US military shooting down Iraqi journalists and civilians:

In the wake of Assange’s arrest, Jónsdóttir urged solidarity:

Everyone who cares about what WikiLeaks stood for back in the day – freedom of information, expression and the protection of whistleblowers – have to do everything in their power to stop him being extradited to the US.

Assange is not without his critics, however. It appears that imprisoned activist and hacker Jeremy Hammond now believes such solidarity should be directed solely at Manning. And Australian journalist Peter Greste, who was imprisoned for more than a year by the Egyptian authorities, disputes that Assange was ever a journalist.

Political agenda

Regardless of these criticisms, it’s patently clear that the charges raised against Assange point to a political agenda that could affect the work of journalists everywhere.

Moreover, it is clear that the methodologies practised by WikiLeaks are markedly different from the kind of journalism most people are used to. But in the digital age, we have moved on, though the justice system has yet to catch up – as is very clear from the US indictment.

And this is why the indictment against Assange is so critically flawed.

Featured image via screenshot