Tareq Haddad
This article was first published in The Scrum.
Exactly 12 years on from 28 November 2010, when WikiLeaks and its media partners – The New York Times, The Guardian, Der Spiegel, Le Monde, and El País – collectively began to publish and report on the quarter-million diplomatic cables from American missions across the world, these five media partners last week issued a joint open letter urging the U.S. government to drop its prosecution of Julian Assange for “publishing secrets.”
This letter appeared quite unexpectedly late last month and is on its face an immensely positive development for the WikiLeaks founder, who has been incarcerated since 2019 and in fact lost his liberty nine days after the first cables were published in 2010. But the document needs to be carefully parsed for what it says and fails to say at this critical point in the Assange case. Upon further inspection, it’s promptly apparent that it falls woefully short of already-low expectations.
First, the five news dailies do not call for the total dropping of the prosecution – suggesting they have no issues with one of the charges. Then, in their negligence, not only do they fail to recognise the impact of this remaining charge on journalism, but how evidence presented at Assange’s extradition hearings in London demonstrated that U.S. prosecutors misled British courts on the allegation in question. Worse still, after years of inaccurate and malign reporting on Assange, the outlets continue distorting Assange’s actions and the wider evidence in the letter itself – begging the question, have they in fact done more harm than good with this half-hearted effort?
Even within the letter’s first few words, it starts to go awry. Because while the publications finally acknowledge, implicitly at least, that they, too, published the same secrets, and should in theory have faced the same charges as Assange, the outlets refrained from stating that the charges should be dropped completely. The distinction is critical to understanding their actual position on the case.
In also trying to justify why they’ve collectively taken so long to say something in defence of Assange, though some have previously published individual editorials opposing the prosecution, the news outlets write:
“This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.”
However, this cadre of journalism’s best and brightest, supposedly, make no further mention of the allegation regarding conspiracy to commit computer intrusion – indicating they have no objections to charging Assange with this offense. They may be forgiven for thinking this would reduce Assange’s charges from 18 counts to one – taking away 17 charges under the Espionage Act, each carrying a maximum sentence of 10 years’ imprisonment. What they cannot be excused for, however, is not knowing that the remaining charge, carrying five years, is the flimsiest of them all and should’ve been opposed with the same intensity.
The editors equally could be forgiven for being unaware of the new book by Ralph Engelman and Carey Shenkman, A Century of Repression: The Espionage Act and Freedom of the Press (University of Illinois Press, 2022), which reports that the Computer Fraud and Abuse Act, the final law Assange is accused of violating, “incorporates the language and perpetuates the flaws of the Espionage Act. The CFAA suffers from the same combination of breadth and ambiguous language to criminalize disclosures drawn from restricted and databases operated by the government or its contractors.”
Again, what the five signatories cannot be let off the hook for, however, is having so poorly scrutinized and reported on Assange’s legal fight against extradition to America in the months prior that they seem totally unaware that the allegations of conspiring to commit computer intrusion that Assange is accused of were thoroughly debunked in the court proceedings.
A dark stain on the history books of journalism
Having been part a handful of British reporters to have attended the vast majority, if not all of the proceedings against Assange in the last three years, along with fellow independent journalists Mohammed El Maazi and James Doleman, I was, of course, there to witness the shambles as the first day of his extradition proceedings got under way at H.M.P. Belmarsh on 24 February 2020, in a courtroom inside the maximum-security prison where Assange is being held.
Journalists from The Guardian, The Wall Street Journal, and The Associated Press, among others, all brandished the names of their publications to get first access to the 30 seats allocated to the press in the courtroom; the 100 other journalists who were present, myself included, were relegated to the cold confines of an annex across the sprawling complex, watching from two televised feeds with poor sound quality and lawyers who could not manage speaking into their microphones for longer than a minute. Hundreds had gathered outside the building chanting “Free Julian Assange.” On more than one occasion, District Judge Vanessa Baraitser had to wait until they died down.
Once technical issues were resolved and the prosecution on behalf of the U.S. made the bulk of their opening statements by the lunch recess, however, there was a sight that will forever stain the history books of journalism if they’re to be written with any accuracy. Journalists from most major publications filed stories on the U.S. prosecution case and were gone. Only a handful were seen again. After lunch, ushers started to bring in journalists from the annex to the courtroom. By Tuesday, anyone who wanted access was given the possibility, even though some opted to remain.
This pattern was repeated in the four-week evidentiary portion of the hearings the following September, this time at London’s Old Bailey. At least on this occasion, journalists couldn’t make the excuse that their newsrooms were too far away. However, by then, the COVID-19 pandemic was just getting started and most journalists opted for the convenient online link. Nonetheless, after a few days, most dropped away anyway.
Had the journalists from The New York Times, The Guardian, Der Spiegel, Le Monde, and El País stayed, they may have learned, and indeed reported, that the allegation Assange faces on conspiring to commit computer intrusion rested on a misrepresentation of the facts that his defense said constituted an abuse of process by prosecutors.
As the joint letter is good enough to state, this is the primal press-freedom case of our time—one that “sets a dangerous precedent, and threatens to undermine America’s first amendment and the freedom of the press.” These words may have carried more weight if the publications had acted like that during the years of ongoing court proceedings.
Missing the evidence
For example, the journalists missed the evidence of Patrick Eller – a 20-year veteran of the U.S. Army who, from 2012 to 2019, served as a digital forensic examiner at its Criminal Investigation Command headquarters in Quantico, Virginia. He testified that the court martial transcript of Chelsea Manning, , the former army analyst who, in 2011, was prosecuted for providing the cables to Assange, was not accurately represented in the government’s case for alleging Assange conspired to violate the CFAA.
Manning, who was sentenced to 35 years’ imprisonment on 19 charges in 2013, before ultimately having her sentence commuted by former President Barack Obama in 2017, testified it was her own conscience that led her to leak the documents that she did – rather than due to any encouragement from Assange or WikiLeaks.
Yet, in the Department of Justice’s first indictment of Assange, disclosed in 2018, U.S. prosecutors make the case that in March 2008, “Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network (SIPRNet), a United States government network used for classified documents and communications.”
The primary purpose of this criminal conspiracy, according to the U.S. government case, “was to facilitate Manning’s acquisition and transmission of classified information related to the national defense of the United States so that WikiLeaks could publicly disseminate the information on its website… It was part of the conspiracy that Assange and Manning used the ‘Jabber’ online chat service to collaborate on the acquisition and dissemination of the classified records, and to enter into the agreement to crack the password hash stored on United States Department of Defense computers connected to the SIPRNet.”
The indictment adds:
“Manning, who had access to the computers in connection with her identity as an intelligence analyst, was also using the computers to download classified records to transmit to WikiLeaks. Army regulations prohibited Manning from attempting to bypass or circumvent the security mechanisms on Government-provided information systems and from sharing personal accounts and authenticators, such as passwords.
“The portion of the password Manning gave to Assange to crack was stored as a ‘hash value’ in a computer file that was accessible only by users with administrative-level privileges. Manning did not have administrative-level privileges, and used special software, namely a Linux operating system, to access the computer file and obtain the portion of the password provided to Assange.
“Cracking the password would have allowed to Manning to log onto the computers under a username the did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.”
What the prosecution fails to mention however, as forensic examiner Keller pointed out in his testimony, was not only could the government not prove this Jabber conversation to crack the password was actually held by Assange himself – only a pseudonymous account named Nathaniel Frank – but, more important, that there was any indication Assange ever successfully cracked, or even attempted to crack, the password in question.
In his affidavit, Keller noted:
“As part of her work as an intelligence analyst with top secret clearance, Manning already had legitimate access to all of the databases from which she downloaded data. Logging into another local user account would not have provided her with more access than she already possessed or even anonymous access to these databases.”
He further evidenced how Manning had already downloaded and transmitted U.S. cables to WikiLeaks months before the password-cracking conversation took place, alongside other documents available elsewhere on the SIPRNetwork, including the Iraq and Afghanistan War Reports, as well as the Guantánamo Detainee Assessment Briefs – all already in the possession of WikiLeaks.
So, not only do the journalists overlook this evidence, they subsequently fail to recognize that the behavior Assange is accused of perpetrating in allegedly conspiring to commit intrusion is no different from what any sensible journalist would have done when communicating with a government source: Urge them to provide more documents while trying to implement methods to protect them from being detected.
The journalists who paid scant attention to the evidence also must have missed the testimony of Christian Grothoff, a professor of computer science at the University of Applied Sciences in Bern (witness statement one; witness statement two). He demonstrated that while WikiLeaks had been first to place the U.S. cables on the internet with the filename “xyz_z.gpg” – the file duplicated only in response to the Distributed Denial of Service attacks launched on the WikiLeaks website, which caused supporters to make “mirrors” of it on dozens of servers elsewhere.
However, this xyz_z.gpg file, an encrypted database, was utterly useless unless one had the matching key to unlock it. And while the following fact was covered by the Press Association, and subsequently reprinted in The Canberra Times, perhaps it was missed by The Guardian and other major publications, because Grothoff went on to demonstrate that it was indeed Guardian journalists themselves who were in fact responsible for unredacted U.S. cables being readily available in the public domain—that shameful yet never-mentioned incident when journalists David Leigh and Luke Harding published the required key as a chapter heading, despite assurances to Assange it would be kept secret. Yet, a few months later, there it was in black and white: “ACollectionOfDiplomaticHistorySince_1966_ToThePresentDay#” – Assange had even insisted that it should never even be completely written down on a piece of paper.
Missing the mark
This, in essence, is why the joint letter from the five news publications falls so inadequately short of the mark. Not only did their lack of scrutiny mean they were uninformed about the implications of the CFAA charge, how this too has an impact on journalism, and how Assange had not even violated the act he is accused of violating, let alone that U.S. prosecutors misrepresented the facts of the case. It’s that, worse still, as the publications whitewash their own dirty history, they continue to defame Assange and imply he should still be prosecuted.
The original quotation reads:
“This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.”
This is a woefully inaccurate account and the five outlets should’ve done much better. With British court proceedings set to recommence early in the New Year, it can only be hoped the publications’ continued disregard for the truth in this case doesn’t do more damage than what’s already been inflicted.