Nearly a decade after Army intelligence analyst Chelsea Manning shared classified materials illegally downloaded from Defense Department computers with WikiLeaks, the site’s founder, Julian Assange, was arrested in London for his role in the 2010-11 disclosures.
Assange, who had been eluding British law enforcement in the Ecuadorian Embassy since 2012, was taken into custody on Thursday and charged with bail jumping. He now faces possible extradition to the U.S. by the Department of Justice. In an unsealed indictment, federal prosecutors say Assange conspired with Manning to break into Defense Department computer databases and later himself tried to access the department’s computer system by decrypting the password.
Assange’s lawyers claimed he is a journalist and should be afforded First Amendment protections. They said the charges set “a dangerous precedent” for journalism.
To better understand the legal, national security, and journalistic tensions at issue, the Gazette spoke with Harvard faculty members Yochai Benkler, Rolf Mowatt-Larssen, and Nicco Mele. Here are their views:
Jack N. and Lillian R. Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School and faculty co-director of the Berkman Klein Center for Internet and Society
Benkler ’94 testified at Manning’s 2013 trial and has publicly defended the disclosure as whistleblowing
The case against Assange
The indictment combines a narrowly tailored and probably quite strong claim on Assange himself participating in trying to crack passwords to the Defense Department computers with Manning. If that ends up being the core and only part of the indictment, then it’s going to be very hard to argue against it in terms of freedom of the press, because that’s not something that is likely protected under existing precedent and not something that journalists do normally.
On the other hand, in describing the indictment and defining the charges, the prosecution seems to be drawing in a wide range of normal journalistic practices associated with national security reporting — using secure communications channels in order to protect the identity of a source, using a secure dropbox for the materials to be delivered. So the indictment has in it very dangerous elements spilling over into chilling national security journalism generally. …
I haven’t seen in the public record any assertion of active collaboration of cracking the passwords. That’s new. If they have evidence for it, it’s quite narrow and would allow a prosecution that wouldn’t have major spillover effects on normal journalism. That’s a big if. It is unfortunate that the indictment includes language that turns it from a narrow, more defensible claim.
The danger is that the prosecution will use a very narrow, defensible prosecution and hang on it a much broader, looser, and more chilling set of practices that are not distinguishable from simply committing journalism. You could frame anything, except for the cracking, as a conspiracy to violate the Computer Fraud and Abuse Act and ignore the publication. It’s important not to overstate it in the other direction, that if the prosecution does focus only on this, then somehow this also severely impacts freedom of the press. Because certainly, actively participating in cracking passwords to break into computers is not something journalists do.
Mounting a First Amendment defense
If the prosecution has evidence that there was an actual agreement to — and an active participation in — cracking the password … then the general freedom of the press defense will be weak. If the prosecution has very weak evidence for it and is going to use it as an anchor to then throw up a lot of dust around the general secrecy and Dropbox and this and that, then it does have a real chilling effect.
That’s why it’s so critical from the start to distinguish between these two parts. Because if there’s strong evidence for the collaborative cracking, then the impact on freedom of the press is relatively small and the government’s case is relatively strong. If the evidence for that is relatively weak and they’re only using it as a foot in the door to get in all of the normal journalistic practices, then the danger is enormous and it will be important to understand this case primarily through the lens of freedom of the press. We don’t know what the evidence is and we don’t know how the prosecution will structure its case, and that’s going to be the critical question.
Director of the Intelligence Project at the Belfer Center for Science and International Affairs at Harvard Kennedy School
Served more than two decades as a CIA intelligence officer
Whistleblowing or leaking
Whistleblowing is protected. The U.S. government has certain measures in place to ensure that keeping classified information classified doesn’t mean that if someone sees governmental crimes or malfeasance, they don’t have an ability to notify the proper authorities. That’s been the debate about Manning: whether that was whistleblowing. That’s what WikiLeaks says it was all about.
I think the test you have to hold it to is, what was the extent of the disclosure and can you make a reasonable case that Chelsea Manning disclosed that to highlight an unjust war and the other reasons? And the convictions, on 22 counts, [show] it was in the U.S. government’s judgment that it went way beyond any real whistleblowing. You had something like 250,000 State Department embassy cables from around the world that were leaked. How can that possibly relate to a whistleblowing function? It was incredibly damaging to our diplomacy and our connections all over the world with no whistleblowing purpose that you could legitimately claim was calling the public’s attention to governmental crimes or corruption. … It was so indiscriminate, a total of something like 750,000 messages between Defense Department cables and messages and State Department things. I don’t think any reasonable person, if they actually read and look and study the damage that was caused by Manning’s disclosure through WikiLeaks, would come to the conclusion that it was whistleblowing. It was just a massive leak designed to cause harm to U.S. national security interests around the world.
Does the public fully grasp the damage caused by the disclosures?
No. I don’t think enough people have taken the time to read the facts of the case to see that the way the U.S. government handled it was reasonable. And I think a reason for that is because so many people are caught up in what they regard to be the unjustness of the invasion of Iraq and they conflate that action, in protest to the Iraq War, as the reason why Manning did this. When, in fact, you examine the evidence, that doesn’t hold up. It was a massive release of information designed to hurt the United States, not just make a statement about the war in Iraq. It went well beyond any reasonable person’s understanding of what a whistleblower should do. And I think the same applies to an even greater extent in the Edward Snowden case.
Does the Justice Department have the password receipts?
We’ll have to wait and see. Presumably, they think they can make that case, or they at least want to show that there was an active effort on Assange’s part to be involved in the actual theft of the information. That is different.
I’ve talked to journalists my whole career. First, I don’t talk about classified things with journalists. And I’ve never had a journalist ever try to work with me to obtain information or suggest that I should go steal classified information. I’ve never met any legitimate, respectable journalist who does that. I’m sure there might be people like that. And I think that distinction is what is very important about this case. Because if it’s true and the government can make the case, then that’s a very important precedent to establish through the Assange/Manning relationship.
Director of the Shorenstein Center on Media, Politics, and Public Policy
Former senior vice president and deputy publisher of the Los Angeles Times
Should Assange still be called a journalist?
I never thought he was a journalist; I always thought he was an advocate. He’s been a source for journalists. Holding power accountable was certainly part of what his purpose was, so he had some similar values to journalists in holding power accountable, but in many ways was never a journalist. He was much more of an advocate or activist than a journalist. However, he did describe himself as a journalist.
Is he using press freedom as a shield to commit crimes?
Much more troubling to me is using his status to avoid accountability for the charges of sexual assault. That’s way more disturbing. But I see some of the work he did with Chelsea Manning as an act of civil disobedience that had it not happened, we would not know about government abuse of power. That’s a legitimate course for civil disobedience, in my view. It’s not a legitimate course in the norms and standards of journalism. Again, I don’t see him as a journalist, I see him as a transparency activist who works closely with many journalists.
Do the media need clearer standards for who is doing journalism?
I think we have pretty good rules about that. The problem is that the public doesn’t recognize them. [There’s] lots of research about how the public does not distinguish well even between op-eds and reported news. In the case of newspapers and opinion, I think it’s probably more a failure of communications or marketing failure. In the case of cable television, where you have reporters, but you also have contributors and advocates and true opinion, I feel like the medium tolerates much more confusion than it should.
Interviews have been edited for clarity and length.