The Julian Assange Indictment and Freedom of the Press

Last month the Justice Department announced a superseding indictment of Julian Assange, the founder of Wikileaks, charging him with multiple violations of the Espionage Act for soliciting and disclosing classified materials. The case has raised concerns over whether the government might apply the same prosecution theories to mainstream journalists who obtain and publish classified information. Although prosecutors are unlikely to go there, the Assange indictment highlights how much we rely on prosecutorial discretion to contain the sweeping and potentially troubling reach of certain criminal statutes. In an age where faith in the sound exercise of that discretion is eroding, prosecutors simply saying “we wouldn’t do that” may cease to be a satisfactory answer.

Julian Assange

Julian Assange

The Assange Indictment

In 2010 Julian Assange received hundreds of thousands of classified documents from Chelsea Manning, then known as Bradley Manning, who worked as an intelligence analyst for the army. Manning unlawfully sent Assange materials related to the U.S. wars in Iraq and Afghanistan and the detention facility at Guantanamo Bay, as well as thousands of classified State Department cables. Assange released the documents on Wikileaks during 2010 and 2011. It was one of the largest breaches of classified information in U.S. history.

In 2013 Manning was convicted of multiple felonies, including espionage. It appeared Assange would not be prosecuted. But this past April the Justice Department unveiled a sealed indictment charging Assange based on his dealings with Manning. Initially Assange was charged only with conspiracy to violate the Computer Fraud and Abuse Act, for helping Manning try to crack a computer password in order to hack into additional classified files. That effort was unsuccessful, but Assange was charged with conspiracy for taking part in the attempted hacking with Manning.

That initial indictment of Assange generally met with cautious approval from the media because DOJ had not charged him for obtaining or publishing any of the leaked materials. But on May 23, the Justice Department returned a superseding indictment. The new 18-count indictment includes multiple charges that Assange violated the Espionage Act by encouraging Manning to obtain classified information and leak it to Assange. It also charges Assange with three Espionage Act violations for publishing classified materials that revealed the identities of confidential sources who had helped the United States, including Afghans, Iraqis, journalists, human rights advocates, and religious leaders. The government alleges that by publishing that information, Assange knowingly placed those sources in grave danger.

The superseding indictment has caused great concern in the journalism community. National security reporters routinely receive and publish classified information, and may encourage sources to provide them with that information. What would prevent the Justice Department from applying the same legal theories used in the Assange case to prosecute a more mainstream journalist at the Washington Post or New York Times? The answer may be: legally, not much.

The Espionage Act

The Espionage Act, 18 U.S.C. 793, is a World War I-era law that prohibits obtaining or disclosing national security information with the intent or reason to believe it could be used to harm the United States or benefit a foreign nation. Several sections of the statute apply to those who are authorized to have the information but then improperly disclose it to others. These are the sections that may be used to prosecute those who leak classified information to a reporter. Most of the charges against Assange allege that he violated these sections by aiding and abetting or conspiring with Manning to have her leak the information to Assange.

Section 793(e) of the Act applies to those who are not otherwise authorized to have the information but obtain it and then transmit or communicate it to others also not authorized to have it. This is the section that potentially could apply to a journalist who receives a leak of classified information and then publishes it so others can read it. Assange is charged under this section for publishing only the materials that revealed the identities of confidential intelligence sources. He is not charged for publishing any of the hundreds of thousands of other documents he received from Manning and posted on Wikileaks.

The Espionage Act and the Press

Prior to the Assange case, the government had never prosecuted someone who at least claimed to be a journalist for publishing classified information received from a source. But the possible application of the Espionage Act to such a journalist has always been lurking in the background.

The concerns raised by the Assange indictment should be placed in the historical context of battles between the press and the executive branch that began escalating during the Obama Administration. The Obama Justice Department significantly expanded the use of the Espionage Act to prosecute leakers of national security information. You often hear that the Obama administration pursued more leak prosecutions than every prior administration combined. That’s true, but it was still only eight prosecutions, or about one a year. Even this relatively modest pace of cases resulted in blistering attacks from the media, which claimed the administration was engaging in a “war on the press” by trying to silence leakers.

There was arguably a technological rationale for the Obama administration’s change in policy. There have always been leaks of classified information to the press. But in the Watergate era, for example, if a reporter received classified information he or she generally would do some work to verify it. The reporter would also call government officials about the information and request comment. That at least gave officials the opportunity to try to persuade the reporter not to publish the information or to delay publication because it would jeopardize national security. Historically there have been times when the mainstream press honored such requests.

With the rise of the Internet, those safety valves have been largely obliterated. Now there are many websites and individuals who consider themselves journalists who are happy to take leaked information and just throw it up on their website. That’s what Assange did with the materials he received from Manning, as well as with the stolen Democratic emails and documents he received from Russian hackers during the 2016 presidential election. It made some sense for the Obama administration to try to plug serious leaks by cracking down on leakers themselves. In the age of Wikileaks, the only opportunity to prevent potentially damaging information from being immediately released worldwide, to friends and enemies alike, is to prevent it from ever being leaked in the first place.

Risen? Rosen? The Cases of the Two James

Leak prosecutions in the Obama years were brought only against the leakers, not against journalists. But they still caused considerable tension between the administration and the journalism community. For example, prosecutors had a protracted legal and public relations battle with New York Times reporter James Risen. Former CIA agent Jeffrey Sterling was prosecuted under the Espionage Act for leaking information to Risen that showed up in his book, State of War. Prosecutors wanted Risen to testify that Sterling was his source, and Risen refused. After a three-year battle, prosecutors obtained a court order that Risen had no privilege to protect his source and could be compelled to testify. However, faced with the prospect that Risen would refuse and force the government to have him jailed for contempt, the prosecutors blinked. They decided not to call Risen, and convicted Sterling at trial without Risen’s testimony. Risen was never criminally charged or forced to testify, but condemned Obama as the “greatest enemy to press freedom in a generation.”

But probably the most notorious incident involving the press during the Obama years was the 2010 prosecution of State Department analyst Stephen Kim. Kim was indicted for leaking information about North Korea’s nuclear program to Fox News reporter James Rosen. Prosecutors later obtained a search warrant for Rosen’s email account to look for communications with Kim. In the search warrant affidavit they characterized Rosen as a criminal co-conspirator or aider and abettor for encouraging Kim to leak the classified information to him. Legally this description was completely accurate, and Rosen was not prosecuted. But characterizing a journalist as a criminal co-conspirator in a search warrant affidavit caused a huge controversy and is still repeatedly cited as evidence that the Obama administration was hostile to the press.

According to news reports, the Obama administration also considered prosecuting Assange for his work with Manning but ultimately declined, believing the case would come too close to treading on freedom of the press. But the Trump administration revisited that decision. The legal theories used to prosecute Assange are largely the same as those contained in the Rosen search warrant: that he aided and abetted or conspired with the leaker who violated the law by disclosing the classified information. But the Assange indictment goes one step further by also charging Assange based on publishing a portion of the information, not just receiving it.

Meanwhile, the Trump administration has further accelerated the pursuit of leakers. In 2017, Attorney General Sessions announced the Justice Department had tripled the number of leak investigations.  When announcing the Assange indictment, DOJ officials said they have brought four leak prosecutions in two years, double Obama’s pace.

Is Assange a Journalist? That’s the Wrong Question

When announcing the Assange indictment, DOJ officials said they don’t consider Assange a journalist. Much of the commentary about the case suggests it should not be worrisome because Assange is not a true journalist. But whether or not he’s a journalist is really the wrong question. The First Amendment does not refer to “journalists” in the protections it provides for free speech and a free press. And the Supreme Court has made it clear that the First Amendment applies equally to the New York Times and to a pajama-clad blogger writing in his basement.

Defining who is a “journalist” is a thorny, and perhaps constitutionally insurmountable, problem. For years there have been efforts on Capitol Hill to pass a reporter’s shield law that would protect journalists from being compelled to identify their sources, at least in some cases. But those efforts have always stalled, due at least in part to the difficulty of defining who is a “journalist” entitled to the protection of the law.

Nearly fifty years ago, in the landmark case of Branzburg v. Hayes, the Supreme Court held that the Constitution does not create a reporter’s privilege. At the time, the Court noted that trying to define who is a “newsman” worthy of any such privilege “would present practical and conceptual difficulties of a high order” and would be a “questionable procedure.” That was at a time when the news media consisted largely of local newspapers, radio, and three television networks. In the age of the Internet, social media, and citizen journalism, those difficulties are exponentially greater. A definition necessarily excludes someone and puts the government in the position of deciding who it deems a “real” journalist worthy of a special legal privilege. That process itself raises grave First Amendment concerns.

There are certainly ways in which Assange differs dramatically from a mainstream journalist. He generally just dumps leaked materials on the Internet with no screening, verification, or reporting. He acts more like an agent of a hostile foreign power than a reporter. Most of his activities seem worthy of little sympathy. As the Assistant Attorney General said when announcing the Assange indictment, no responsible person, whether or not a journalist, would disclose the names of confidential intelligence sources in a war zone, knowingly exposing them to grave danger.

But the issue is not whether Assange is a journalist or whether his behavior is reprehensible. It’s whether the legal theories used to prosecute Assange also could be employed to prosecute a mainstream journalist, and thus whether the Assange indictment creates a potentially dangerous precedent. The answer appears to be yes.

The Tension Between the Press and the Government

There has always been a healthy tension between the press and the government. The government tries to keep some secrets. Most would agree that it tries to keep far too many and that it classifies too much information. Sometimes it tries to keep information secret not because its release would really damage national security but simply because it would be embarrassing or politically damaging.

Our robust free press and investigative journalism have always played a vital role in fighting excessive government secrecy and ferreting out important information. Scandals such as Watergate and the government excesses during the Iraq war only came to light through the efforts of dogged journalists. In many such cases that work involves the journalists receiving, and reporting on, leaked classified information.

On the other hand, almost all would agree there are some secrets the government should be able to keep. Leaks of the most sensitive military and intelligence information could genuinely harm our national interests or put those serving our country in harm’s way. And if we agree the government must be able to keep some secrets, then we should be able to agree that in appropriate cases the government may prosecute those who illegally disclose such vital information and try to deter others from doing so.

It’s also clear there can be no absolute immunity for journalists from criminal prosecution related to their work. To take an extreme example, a journalist could not hire a burglar to break into an office to steal confidential files, publish them, and then claim immunity from prosecution based on freedom of the press. If Assange had obtained classified information and hand-delivered to agents of the Taliban, it seems clear that he could be prosecuted for espionage. Why should the result be different because he chose to deliver the materials by posting them on the Internet?

The Role of Prosecutorial Discretion

In the end, these cases are all about line drawing. An investigative journalist at a mainstream newspaper regularly receives classified material. He or she may request such materials from a source, even try to cajole the source into obtaining more such materials, directly or subtly. At some point such encouragement or active participation could cross the line into soliciting criminal activity. What prevents such cases from being charged, at least up to this point, is respect for the role of the press and the sound exercise of prosecutorial discretion.

Government officials went out of their way to emphasize this when announcing the Assange indictment. They noted that prosecutorial decisions in each case have to be evaluated on their specific facts, and that mainstream journalism has nothing to fear from the Assange indictment. But the legal theories are there, and always have been.

This really isn’t that surprising. Many criminal statutes contain sweeping prohibitions that could potentially apply to a given case but prosecutors exercise their discretion not to pursue it. In particular, prosecutors traditionally have respected the role of the Fourth Estate. For example, although (as the Risen and Rosen cases demonstrated) journalists have no legal privilege to refuse to reveal their sources in federal cases or to shield their communications in general, DOJ has voluntary internal guidelines to ensure that seeking information from a reporter will be extremely rare and will require approval at the highest levels. This respect for the role of the press is part of the healthy push and pull between the press and the government that has always existed.

It’s probably true the Trump administration will not seek to expand the theories used against Assange to prosecute traditional journalists. Certainly there would be a huge outcry, even from the president’s friends in the conservative media. And there would be substantial constitutional defenses to any such case. This was not a routine leak, but one of the largest security breaches in U.S. history. And however we define journalism, most of Assange’s actions stray far from that concept.

But reliance on prosecutorial discretion requires trust that discretion will be exercised dispassionately, with some wisdom, humility, and historical perspective. Considering this president routinely refers to the press as the enemy of the American people and accuses the press of treason, you can’t blame journalists for being a little nervous.

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Sentencing Leakers: David Petraeus vs. Jeffrey Sterling

On April 23, 2015, David Petraeus — a retired four-star general, former commander of U.S. and NATO forces in Afghanistan, and former director of the CIA — was sentenced to two years probation and a $100,000.00 fine for mishandling classified information. Petraeus pleaded guilty to a single misdemeanor charge based on his disclosure of classified information to his mistress, Paula Broadwell, who was writing his biography.

On May 11, 2015, former CIA officer Jeffrey Sterling was sentenced to 42 months in prison for his unlawful disclosure of classified information to James Risen, a reporter for the New York Times. Sterling was convicted at trial of nine felony counts of violating the Espionage Act and related offenses for leaking information to Risen about a classified CIA operation to undermine Iran’s nuclear weapons program.

The two sentencings, occurring so close to each other, prompted inevitable comparisons.  For example, Mark Berman, a reporter with the Washington Post, tweeted that Sterling was “sentenced to same prison time as Petraeus, plus 3.5 years.”  The theme of much of the commentary, such as articles here and here, was that treating Sterling more harshly than Petraeus was unfair because the two men had committed similar crimes.  Many suggested Petraeus had received more lenient treatment simply because he, unlike Sterling, was powerful and connected.

Sterling’s lawyers also pointed to the Petraeus case at Sterling’s sentencing, arguing that the two cases were comparable and that “Mr. Sterling should not receive a different form of justice than General Petraeus.”

So what was the basis for the different sentences, and are the comparisons and criticisms justified?


Facts of United States v. David Petraeus

While he was commander of military forces in Afghanistan, Petraeus maintained small black notebooks that contained his daily schedules and personal notes from briefings and meetings that he attended. During his time in Afghanistan he filled up eight such notebooks. They contained classified information including identities of covert officers, war strategy, intelligence capabilities and mechanisms, and diplomatic discussions, along with details from National Security Council meetings and Petraeus’ conversations with the President.

After Petraeus returned from Afghanistan and retired from the military, the Department of Defense began collecting classified materials that he had accumulated during his tenure. Petraeus never informed the DOD officials gathering his materials about his black notebooks, and kept them in his possession at his house.

In 2011 author Paula Broadwell was working on a biography of Petraeus. She and Petraeus, who was married, were also having an affair. In August of 2011, Petraeus gave the notebooks to Broadwell for a few days so she could review them. (Broadwell apparently has a security clearance, but it is unlikely her clearance would have authorized her to view all of the material in the notebooks.) None of the classified information from the notebooks ended up in the biography, which was published in 2012.

In October of 2012, during an interview with the FBI, Petraeus lied and said he had never provided any classified information to Broadwell. In the wake of the investigation and the revelation of his affair with Broadwell, Petraeus ultimately resigned from the CIA in November, 2012.  On April 5, 2013, pursuant to a search warrant, the FBI seized the black notebooks from an unlocked desk drawer in Petraeus’ house.

 CIA logo

Facts of United States v. Jeffrey Sterling

Jeffrey Sterling was a ten-year CIA employee with access to extremely sensitive information. In particular, he was deeply involved in a project known as “Operation Merlin,” a covert operation to undermine Iran’s nuclear weapons program. Merlin involved using a former Russian scientist, now living in the United States and cooperating with the CIA, to feed faulty nuclear weapons plans to Iran. The idea was to send Iran down some blind alleys in order to delay and disrupt its development of a nuclear weapon.

In the early 2000’s, Sterling began filing a series of personnel grievances and lawsuits against the CIA, alleging racial discrimination in connection with his employment and with CIA decisions about whether he could publish certain material in his memoirs. Over several years his lawyer made escalating demands to the CIA for financial settlements of the disputes, which the CIA refused.

During this same time period, Sterling began having meetings and telephone conversations with James Risen. Sterling disclosed classified information about Operation Merlin to Risen and apparently gave him copies of classified documents. According to the evidence at trial, Sterling provided Risen with a distorted and inaccurate view of the operation, in order to make it appear the CIA had bungled the program and may have actually aided Iran rather than hindering it.

In the spring of 2003, Risen informed the CIA of his intention to publish a story about Operation Merlin. National Security Advisor Condoleezza Rice and other government officials met with Risen’s editors to express grave concerns about the national security damage that could result if the story was published. In light of the government’s concerns, Risen’s editors agreed to kill the story. Risen was reportedly furious. Two years later he wrote a book about the CIA, State of War, in which he devoted a chapter to Operation Merlin and disclosed the classified information that his editors at the Times had agreed to protect in the interest of national security.

Comparison of the Two Cases: Apples to Apples?

The Petraeus and Sterling cases reached their denouements just a few weeks apart, with dramatically different results for the two defendants. But although it’s tempting to equate the two cases, as many have done, it is really a comparison of apples and oranges. Both involve the improper disclosure of classified material, but that’s about where the similarities end.

Intent: A defendant’s intent is always an important factor when determining the appropriate charges and punishment for a given offense. The government’s evidence at trial was that Sterling intended to harm the government and was motivated, as the government put it, by “pure vindictiveness” and “spite.” Angry with the CIA over what he perceived as wrongful personnel and other actions, he disclosed highly sensitive material and painted a distorted picture of a covert operation in an effort to embarrass and harm the agency. In so doing he appears to have had little concern for the possible damage to national security that might result.

Sterling also plainly intended that the classified information he revealed would be publicly and widely disclosed. By giving the information to a prominent national security journalist for one of the nation’s leading newspapers, he maximized the likelihood that the sensitive, classified material would be made public – which of course also maximized the chance that national security would be harmed.

With Petraeus, there was no evidence of any malicious intent or desire to harm national security. It’s hard to say what exactly motivated him; probably a combination of ego, wanting to make sure that the historical record of his accomplishments was as full and accurate as possible, and a desire to please the woman with whom he was having a relationship. But there was never any suggestion that Petraeus intended to cause any harm.

There also was no evidence that Petraeus intended for any classified information to be made public; it appears he was trying to give Broadwell background information and context for the book. Even if Broadwell had included classified material in a draft, it’s likely that review of the proposed book by government agencies or by Petraeus himself would have caught it and stopped it from being published.  Petraeus (unlike Sterling) had no reason to think that the recipient of the classified material he disclosed had any desire or motive to reveal it to the world.

This difference in their level of intent also helps to explain the different charges of which the two men were convicted. The Espionage Act, the felony Sterling was found guilty of violating, includes a requirement that the defendant knew the disclosed information could be used to injure the United States and to benefit a foreign nation. Mishandling classified information, the misdemeanor to which Petraeus pleaded guilty, contains no such element.

Actual Harm Caused: The government maintains that the damage caused by Sterling makes his one of the most serious leak cases in recent memory. Sterling’s disclosures, according to the government’s evidence at trial, shut down an active covert operation and one of the few mechanisms the government had to restrain Iran’s nuclear ambitions. Unlike other recent leakers, Sterling disclosed an ongoing, classified operation involving human foreign intelligence assets. The same type of operation had been used not only against Iran but against other nations as well. Former National Security Advisor Rice testified at Sterling’s trial about how important Operation Merlin had been and how damaging the disclosure of the program was.

There was also testimony at trial, including from the Russian scientist himself, that as a result of Sterling’s disclosures the scientist and his family now live in fear that a foreign government may harm them in retaliation for his cooperation with the United States.

At Sterling’s sentencing, the judge noted that his leaks effectively disclosed the identity of a covert asset who was working with the CIA and to whom Sterling had been assigned. The judge observed that this kind of disclosure is one of the most serious breaches of a CIA official’s duty. It betrays the trust that an asset placed in the CIA and may make it more difficult for the government to recruit other foreign human assets in the future.

By contrast, by allowing Broadwell to read his notebooks, Petraeus appears to have caused no actual harm at all. As discussed above, none of the material was ever publicly disclosed, and there appears to have been little risk that it would be. Although allowing Broadwell to review the materials and keeping them in an unlocked desk in his home was a serious breach of the rules for handling classified information, it was more of a procedural violation than an actual betrayal.

Plea vs. Trial: Petraeus accepted responsibility for his conduct and pleaded guilty. Sterling never accepted responsibility for his conduct, took the case to trial, and was ultimately convicted by a jury.

Defendants who plead guilty almost always get some credit from the government, as well as from the sentencing judge. This age-old concept is also built in to the federal Sentencing Guidelines, which provide significant benefits to a defendant who pleads guilty before trial. A guilty plea is a sign of contrition and that the defendant has accepted responsibility for his conduct, behavior worthy of favorable consideration by the sentencing judge. In addition, by pleading guilty a defendant saves the government from the considerable time, effort and expense required to take a case to trial. In a case like Sterling’s, this is particularly important because the trial itself may require the government to reveal at least some classified information that it would prefer to remain secret.

Sterling’s lawyers argued that it would be unfair to penalize him because he exercised his constitutional right to put the government to its proof. But this simply gets it backwards: it’s not that a defendant who goes to trial is penalized; it’s that a defendant who pleads guilty gets a benefit. That has always been true, and is another factor that distinguishes the Sterling case not only from Petraeus but from other recent leak cases pointed to by Sterling’s lawyers involving John Kiriakou and Stephen Kim, who also pleaded guilty.

We don’t know what kind of plea discussions took place between the government and Sterling, but there’s little doubt that if Sterling had been willing to step up and admit responsibility early in the case he could have received a much more favorable deal and a more lenient sentence. Similarly, had Petraeus stonewalled the government and refused to plead, he very likely would have faced far more serious charges.

Personal background: A judge always takes a defendant’s personal history into account when fashioning an appropriate sentence. That’s one of the reasons that Presentence Reports are prepared, to give the sentencing judge detailed information about the background and accomplishments of the defendant. It’s also the reason people write letters to the sentencing judge in support of a defendant and urging leniency, such as the more than 400 letters that were sent to the judge who was recently preparing to sentence former Virginia Governor Bob McDonnell, attesting to McDonnell’s good character and record of public service.

Petraeus came before the court after 37 years of serving the country in the military and, most recently, in the CIA. He was considered one of the most able military leaders in the nation and to have done an admirable job commanding forces in Afghanistan. That type of career of public service entitles a defendant to considerable credit. It makes his offense look all the more like an isolated lapse of judgment in an otherwise sterling career where he sacrificed a great deal for his country.

For his part, Sterling has some impressive personal accomplishments as well, including graduating from law school, his career at the CIA, and a subsequent successful career as a fraud investigator for an insurance company. But in terms of overall record and service to the nation, he is no David Petraeus. That is particularly true considering his efforts, near the end of his CIA career, to undermine and damage the agency and country he had sworn to serve.

*  *  *

 In sum, it’s much too simplistic to look at the two cases, see that they both involved leaks of classified information, and conclude that the different sentences are unjustified or arise from some improper reason. Every case is unique, and here there are substantial differences that explain the different sentences.

Actually, in both cases the sentences seem about right to me. In Sterling’s case, it’s worth noting that the sentencing guidelines actually called for a sentence of about 19 to 24 years in prison. The judge rightly recognized that in a case involving leaks to the media, as opposed to actual espionage against the United States, such a sentence would have been crazy. (Even the government seemed to acknowledge this and did not argue for a sentence within the guidelines, as it normally would, but simply asked that the sentence be “severe.”) In light of the harm caused by Sterling’s conduct, his malicious intent, and the sentences received by other recent leakers of classified information to the press, Sterling’s sentence of 42 months appears eminently fair, if not a bit lenient. Even his own lawyer, after the sentencing, said that the judge “got it right.”

As for Petraeus, I’m not entirely unsympathetic to the view that he got a pretty sweet deal. This is particularly true considering he initially lied to the FBI about revealing classified material to Broadwell. Lying to the FBI can be prosecuted as false statements, a five-year felony. There were reports that the FBI agents working on the case were upset and thought that Petraeus should have been treated more harshly, given his lack of candor. That view has some force.

On the other hand, few defendants who end up entangled in the justice system have Petraeus’ record of a lifetime of distinguished and valuable service. The notebooks were his personal notes, not original classified materials, and one can see how he might have viewed them as somewhat less sensitive. And his lie — a simple denial of guilt when interviewed by the FBI — is a type of case that, as a matter of policy, the Department of Justice generally does not prosecute.

This was a serious screw-up by someone who knew better. But given his overall history, lack of intent to harm the country, lack of any actual damage resulting from his conduct, and willingness to accept responsibility and plead guilty, I can’t say that Petraeus should be going to jail or that his plea deal seems unreasonable.