What Is Wrong With Former Obama Administration’s Official Case For Prosecuting Julian Assange

Ben Rhodes, former deputy national security advisor for strategic communications under President Barack Obama (Photo: State Department)

If the United States Justice Department succeeds in prosecuting WikiLeaks founder Julian Assange, it will have establishment figures from the Democratic Party to thank. Their rhetorical support will make the extreme nature of the case brought by President Donald Trump’s administration more acceptable.

Ben Rhodes, former deputy national security advisor for strategic communications, and Tommy Vietor, former national security spokesperson and special assistant to the president, worked in President Barack Obama’s administration. They are prime examples of the kind of people the Trump Justice Department needs to tamp down opposition to their prosecution.

Vietor hosts, “Pod Save the World,” one of the top 100 news and politics podcasts on iTunes. He was joined by Rhodes for their April 17 episode, where they highlighted the case against Assange.

Not only did they display a glaring misunderstanding, but they also revealed their prejudice against WikiLeaks. They both worked for the Obama administration when the media organization published their most high-profile disclosures from Chelsea Manning in 2010.

Rhodes and Vietor, like a number of pundits, seem to believe that Assange was indicted for hacking. However, the word “hacking” never appears in the March 2018 indictment against Assange. He was accused of “conspiracy to commit computer intrusion.”

Vietor suggested the Justice Department made the charge “very specific because they’re trying to make an argument this was not normal journalism, like publishing information. This would be like telling someone how to break into a vault where the classified documents are then helping them,” which is a poor comparison.

What the Justice Department accused Assange of doing is like helping Manning obtain an invisibility cloak so she could enter a vault of classified documents, which she was already authorized to access. She had a security clearance and could access the Secret Internet Protocol Router Network (SIPRnet) that held numerous databases. She did not need any assistance with how to “break” into the “vault.”

As the affidavit from FBI Special Agent Megan Brown shows, the Justice Department’s theory of the case is far from “specific.” It includes language from the Espionage Act and spends several pages highlighting WikiLeaks’ publication of information, including the Iraq and Afghanistan War Logs. The Justice Department’s theory poses a “clear threat to journalism,” according to Columbia Journalism Review columnist Mathew Ingram.

In fact, the “conspiracy to commit computer intrusion,” which allegedly involved a “password cracking agreement” with Manning, is really an Espionage Act charge twisted into an allegation of a computer crime. That carries implications for freedom of the press, but it is understandable that Rhodes and Vietor do not recognize this threat since they worked in an administration, which prosecuted more whistleblowers for leaks under the Espionage Act than all previous presidents combined.

“Would you want the New York Times or Fox News to be able to hack into your email and report on it? I think that there should be an expectation for some amount of privacy,” Rhodes said.

A journalist communicating with a source within an agency or a military unit with access to information is not equivalent to Rupert Murdoch’s News Of The World hacking scandal. Nor is adversarial journalism that involves publishing leaks — including source materials — a slippery slope to allowing journalists to hack into a citizen’s private email account.

Rhodes further contended, “I would argue again that if you are creating an incentive structure where you’re saying to any hacker out there that you will have the same First Amendment-type protections that journalists do, if you just feel like stealing other people’s information or stealing the government’s information or working in collaboration with a foreign adversary like Russia to do so that you’ll be protected, you know, that will create huge problems because that will essentially legalize, normalize the theft of information by anybody.”

Like the majority of Democrats, Rhodes does not trust the motivation of Assange. He believes Assange served the Russian government’s interests by publishing emails from Hillary Clinton’s campaign chairman John Podesta and the Democratic National Committee (DNC).

He essentially argues the Justice Department under Trump must prosecute Assange or else hackers will think they can steal anyone’s information and get away with it. However, this is commentary that exhibits an indifference to the perils that led the Obama administration in 2013 to back away from efforts to bring Assange to the U.S. to face trial.

Rhodes shared how his view changed after WikiLeaks “dumped” the diplomatic cables from the State Department. He was in a foreign country that he would not name and talked to a U.S. diplomat, who complained about the impact of the publication of cables by WikiLeaks and several media outlets throughout the world. The diplomat said someone from the indigenous population in Canada, who was an informant, disappeared. They did not know if he fled or was killed.

For the record, no individual has ever been reported dead as a result of the leaks. It is reasonable to argue if such a person exists the public would know all about that person. It would be mentioned in every other story about Assange to maintain support for criminalizing his actions.

After Chelsea Manning was arrested on May 27, 2010, the State Department became aware that she transferred hundreds of thousands of cables to WikiLeaks. Diplomatic personnel had months to engage in harm minimization and make arrangements necessary to protect individuals. A WikiLeaks Working Group was established and operated 24 hours a day at one point in response to the release of cables.

WikiLeaks did not initially publish all of the cables. It worked with newspapers throughout Europe and Latin America. For the most part, what was posted were cables covered through these media partnerships. But in a book he co-authored, The Guardian’s David Leigh included the encryption key Assange provided to him. This was covered by a German magazine on August 25, 2011, and there were enough details for anyone to access the full “Cablegate” file that was on the internet. By September 1, all 251,287 cables were published to WikiLeaks’ website.

The Associated Press conducted a review published days later that focused on cables, which mentioned “sources the State Department seemed to categorize as most risky.” Reporters found several of the individuals named were “comfortable with their names in the open and no one fearing death.”

“The total damage appears limited, and the State Department has steadfastly refused to describe any situation in which they’ve felt a source’s life was in danger,” the AP noted. “They say a handful of people had to be relocated away from danger but won’t provide any details on those few cases.”

Reporting from the AP was consistent with testimony from State Department officials, who testified at Manning’s court-martial in 2013.

Patrick Kennedy, who was the under secretary of state of management, said a “relatively small number of people” expressed feeling a “chilling effect” that discouraged them from having the “kind of exchanges they had before WikiLeaks.”

Vietor recalled, “We worked with the New York Times and a bunch of news outlets to redact names from the cables before they were published. Assange saw that happening, he got pissed off, and said fuck it. I’m just dumping them all unredacted on the internet.”

That is patently false. Even the AP recognized, “[The cables] were released piecemeal since [2010], initially with the cooperation of a select group of newspapers and magazines that blacked out some names and information before publishing the documents.”

Nevertheless, Rhodes insisted a “responsible news organization” would “review cables and would separate out how to convey the news in them,” even though that is exactly what WikiLeaks did with newspapers, like Le Monde (France), El Pais (Spain), and La Jornada (Mexico).

Rhodes eventually revealed the main reason why he has few concerns about the Trump Justice Department prosecuting Assange.

“The motivation [to release cables] was just to embarrass the United States and the United States government,” Rhodes contended. “Even if you’re not a fan of U.S. foreign policy or the United States government, that’s just a different motivation than a journalist wanting to shine a light on abuse or corruption, and it’s something that we have to reckon with, that it endangers people’s lives.”

“And of course Russia likes that kind of thing. Because Russia as much as anyone else wants the blueprints for how civil society is operating around the world and how democratic activists are operating around the world,” Rhodes continued. “So to me, this is why it’s so important for me to say there’s a difference between a news outlet that’s going to do the actual work of separating out the news from what can be harmful and something like WikiLeaks, where this guy just wants to be the center of attention and frankly probably allowed his organization to be taken over in a way by Russia to service Russia’s very anti-democratic ends.”

There is no evidence that WikiLeaks was ever taken over by Russia. If that were the case, why would the media organization stop with the DNC emails and the Podesta emails? Why wouldn’t there be more publications after 2016 that were allegedly serving the interests of Russia?

Assange published the DNC and Clinton campaign emails because he detested Hillary Clinton. She was secretary of state when the cables were published, and he likely blamed her for the extent to which the U.S. government zealously targeted his media organization. So to the extent that WikiLeaks is more friendly toward Russia or Russian-sponsored media, it may be partly a result of U.S. government officials and journalists and their aggressive attacks on the organization’s work.

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What Rhodes expressed is one of the clearest articulations of why the liberal Democratic establishment will not speak up for Julian Assange, even as the case brought against him will likely set a precedent that damages press freedom.

An early attack against WikiLeaks, way before the 2016 presidential election, was to label it an “anti-American” organization simply because the organization focused so much attention on the military and diplomatic infrastructure of the most powerful country in the world.

Rhodes believes Assange is not a journalist because he has sought to “embarrass” the U.S. government. To publish journalism to “embarrass” the U.S. government is to stir chaos for the sake of garnering attention for one’s exploits. No responsible journalist would seek to “embarrass” the U.S. government when exposing abuse or corruption because that might disrupt business as usual, and the U.S. is the leader of the free world. The U.S. government must be able to maintain its influence or power or anti-democratic forces may take advantage of America’s moment of weakness.

Journalists are supposed to play gatekeepers. As the New York Times and the Washington Post did with the cables, they should collaborate with government officials ahead of the publication of any leaks. Consult with officials so damage — authentic and hyped — may be minimized. But then, that allows the government to minimize any disruption that may blindside officials and create an opening for accountability, justice, or meaningful reforms.

In April 2017, Assange wrote in a column for the Post:

Our motive is identical to that claimed by the New York Times and The Post — to publish newsworthy content. Consistent with the U.S. Constitution, we publish material that we can confirm to be true irrespective of whether sources came by that truth legally or have the right to release it to the media. And we strive to mitigate legitimate concerns, for example by using redaction to protect the identities of at-risk intelligence agents.

Assange highlighted the publication of “stolen” material by the New York Times and Los Angeles Times:

Dean Baquet, executive editor of the New York Times, defended publication of our “stolen” material last year: “I get the argument that the standards should be different if the stuff is stolen and that should influence the decision. But in the end, I think that we have an obligation to report what we can about important people and important events.” David Lauter, Washington bureau chief of the Los Angeles Times, made a similar argument: “My default position is democracy works best when voters have as much information as possible . . . And that information often comes from rival campaigns, from old enemies, from all sorts of people who have motives that you might look at and say, ‘that’s unsavory.’ ”

“The media has a long history of speaking truth to power with purloined or leaked material — Jack Anderson’s reporting on the CIA’s enlistment of the Mafia to kill Fidel Castro; the Providence Journal-Bulletin’s release of President Richard Nixon’s stolen tax returns; the New York Times’ publication of the stolen “Pentagon Papers”; and The Post’s tenacious reporting of Watergate leaks, to name a few,” Assange concluded.

“I hope historians place WikiLeaks’ publications in this pantheon. Yet, there are widespread calls to prosecute me.”

Former Obama administration officials, like Rhodes and Vietor, are complicit in those calls, and in helping to build consensus with the Trump Justice Department for his prosecution, they ensure a future where an Assange precedent is set that other countries could point to in order to justify their own government’s attacks on foreign journalists or publishers.