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What U.S. charges against Julian Assange mean for journalists

The arrest of Julian Assange renewed attention on the long-running U.S. attempt to prosecute the controversial WikiLeaks founder. Amna Nawaz talks to Jesselyn Radack of the whistleblower and source protection group ExposeFacts, former federal prosecutor Amy Jeffress and Jamil Jaffer, former senior counsel for the House Intelligence Committee, about the specific computer fraud charge Assange faces.

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  • Amna Nawaz:

    For a closer look at the arrest of Julian Assange and the long-running U.S. effort to prosecute the WikiLeaks founder, I'm joined by Jesselyn Radack, director of the whistle-blower and source protection program at the group ExposeFacts. She represents former government contractor Edward Snowden.

    Amy Jeffress is a former federal prosecutor. She served as a national security lawyer in the Department of Justice under President Obama. And Jamil Jaffer, former senior counsel for the House Intelligence Committee, he served at the Justice Department's National Security Division during the George W. Bush administration.

    Welcome to you all.

    Amy, let me start with you.

    Let's set aside politics, how all of this is going to be spun by supporters or critics of Mr. Assange. Just legally, should he have been charged today?

  • Amy Jeffress:

    So, I don't want to opine on whether they should have charged him.

    I think a lot of the debate that's going on is whether he's a journalist. And if you read the indictment, which I did, the charges relate to computer hacking. And so the issue is not, did he publish information that was illegally obtained, but did he, himself, participate in violating the law in obtaining that information?

  • Amna Nawaz:

    But, legally, there's a basis for those charges there?

  • Amy Jeffress:

    Well, yes. It depends on the facts, certainly. And it's a very sparse indictment, so we really don't know a lot about the evidence, but the charges are certainly legitimate.

  • Amna Nawaz:

    Jesselyn, let me ask you. It's a sparse indictment, as she mentioned. There's not a ton in there, and a narrow set of charges.

    But you said already that this sets is terrible precedent, you think. Why? Explain that to me.

  • Jesselyn Radack:

    I think this can make any journalist or publisher vulnerable to charges under the Computer Fraud Abuse Act.

    I read the indictment, too. It's very thin right now. I don't know if they're planning on doing a superseding indictment, or if that's even possible on an extradition warrant.

    But publishing classified information in the U.S. about the U.S. shouldn't be criminalized under any statute. We have a First Amendment.

  • Amna Nawaz:

    But, again, this wasn't about the publishing of the material, right? The charges, as I understand them, related specifically to the alleged hacking, breaking into a secure system to get the material.

  • Jesselyn Radack:

    To the extent that it talks about Assange — again, I have seen all sorts of stuff in indictments, because you can put pretty much anything in there. It's just the government's side.

    But to the extent that a journalist is talking to a source — I mean, when I leaked to a journalist, he talked to me about how to go to Kinko's and use an old-fashioned fax machine. I mean, that shouldn't be something that would be criminalized.

  • Amna Nawaz:

    Jamil Jaffer, jump in here. Do you think this sets a precedent that's dangerous? Is there a slippery slope here?

  • Jamil Jaffer:

    No, absolutely not.

    Look, what Julian Assange did here was that he spoke to a person who he knew had authorized access to classified information. She had already given him tons of classified information. He wanted more. She said, I can hack — I can get into the system, but I need to break into the password.

    She then downloads a piece of software, gets access to part of the password, and gives to Assange with the intent, which he tried to do, to crack the rest of the password to help her get further into the system.

    That's not publication information. That is not First Amendment-protected speech. It's nothing like that. This is straight-up assistance to hack a computer system, a classified computer system, to get access to classified material and publish it.

    So, that is, in fact, a crime under any circumstance, and absolutely the right thing for the government to charge Assange and to prosecute him to the fullest extent of the law.

  • Amna Nawaz:

    Let's try to fill in some of the information here, Amy, because there was a decision made by the previous administration not to prosecute, right?

    They decided it was too fraught, too controversial, too risky. What had to change between the Obama administration and this administration to get to that decision to prosecute?

  • Amy Jeffress:

    That's an interesting question. And, again, I don't think I want to opine that there was a decision made not to charge.

  • Amna Nawaz:

    What kind of information would have been necessary, though, to get from one to the next?

  • Amy Jeffress:

    So, evidence that he violated the law.

    So, the fact that was new to me — and I didn't know anything about this case while I was in government, just to be clear — but the fact that was new to me was this attempt on Julian Assange's part, which is alleged in the indictment, to assist then Bradley Manning by helping crack a password to gain access to what they both knew was computer — computer information that contained classified information.

  • Amna Nawaz:

    Jesselyn, let me dig in on this with you, though, because this is the charge, right, related to the attempt to hack.

    We already heard from Mr. Assange's lawyer. He, again, made the same argument that this is dangerous for journalists, this man was acting as a journalist.

    How is that strong legal ground, though, when this doesn't seem to be related to First Amendment issues?

  • Jesselyn Radack:

    You know, again, this is under Computer Fraud Abuse Act, which has been incredibly — it's an incredibly broad law. And this can criminalize — even if you think journalists are not doing that, I mean, a lot of journalists use SecureDrop. They walk sources through how to transmit information on SecureDrop.

    You know, and I think we create this slippery slope in doing this. I attended Chelsea's court-martial, Chelsea Manning's court-martial, and this stuff about the — cracking the passwords and this kind of interplay, like, this is the first I'm hearing about this.

    And I had gone to Fort Meade, to these very — I'm surprised. Like, it shocking to me this wouldn't have come up earlier.

  • Amna Nawaz:

    You think this changes the rules because it opens up the door for how journalists will sometimes interact with their sources in obtaining different kinds of information?

  • Jesselyn Radack:

    I think it does.

    Trump didn't make it a secret that he considers the press to be the enemy. And, here, I think you see the first step. I mean, we already have a source put in jail for longer than any other source. Reality Winner has been in prison for giving information to a news outlet.

    And here you have an actual publisher. So I think this is a step beyond. I have always said the war on whistle-blowers was a backdoor war on journalists. And I see that coming to full fruition here.

  • Amna Nawaz:

    Jamil, help us understand the timing a little bit, if we can.

    The inadvertent filing back in November that revealed there was this sealed criminal complaint against Mr. Assange, that was several months ago. What had to happen between then and now that led to the arrest today?

  • Jamil Jaffer:

    Well, obviously, the Ecuadorian Embassy let Mr. Assange out on the street.

    And so this indictment was filed over a year ago in federal court, and so this indictment has been sitting sealed for over a year. And so this idea somehow that this is a war on journalism is completely outrageous. There's no war on journalism.

    There's a war on teaching people who are trying to hack a password. That's illegal under any standard. It's never been lawful. It will never be lawful. Accessing a secure computer system, much less a classified computer system, is against the law. And trying to crack a password for a classified system, that's illegal.

    There's no war on journalists. There's no discussion of trying to use SecureDrop. This is about how to break a password, which is exactly what Mr. Assange said he was trying to do. He was able to do it. But he participated with Chelsea Manning in trying to do that, and that's a crime under federal law, period, full stop.

  • Amna Nawaz:

    There's another question here about the protection he was granted by the Ecuadorians.

    I want to get your take on that, Jesselyn, because, obviously, he had been there seven years. They had obviously said that there was some kind of credible fear, right, some level of protection he was owed.

    Does that concern you, that they were able to pull back that level of asylum?

  • Jesselyn Radack:

    Absolutely.

    Asylum grants are not doled out willy-nilly. You have to show that you have a valid fear of persecution based on political expression. So to the extent that the U.S. has a history of violating human rights laws, particularly when you look at cases like this — look at Chelsea Manning.

    The U.S. during her court-martial gave her credit time because she was, in fact, tortured. When you look at that kind of history, you could understand why this would happen.

  • Amna Nawaz:

    Amy, I want to give you the last word here. We have got a little over a minute-and-a-half left now.

    Are you worried that this sets any kind of dangerous precedent, that it send a message to journalists and others about the way they interact with sources? And walk us through what happens next.

  • Amy Jeffress:

    Sure.

    So, these charges, again, are not — he's not charged with leaking. He's not charged with the Espionage Act defenses. He's charged with a computer fraud crime. So it's different from some of the other cases that have been more controversial, in my opinion.

    What happens next is, he will have a hearing in Westminster Magistrates' Court on May 2, as I understand it. He had his hearing today on the bail-jumping charge. The hearing on May 2 will start to focus on the United States' extradition request.

    And in my experience, having served at the embassy in London, these proceedings can take a very long time. So he will have a full opportunity to present all of these defenses. He can have an appeal. He can take an appeal to the European Court on Human Rights. And so this will take a long time to sort out.

    I think we won't see Julian Assange in the United States for months, if not years. And he may be able to launch a successful challenge. So it's going to unfold over a very long period of time.

  • Amna Nawaz:

    Several months, if not years, then. We will be tracking it.

    Amy Jeffress, Jesselyn Radack, and Jamil Jaffer, thank you very much for your time.

  • Jamil Jaffer:

    Thank you.

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