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.