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Roughly 300 Years Later, Is Julian Assange The New John Peter Zenger?

Below is my column in the BBC on the historical and potential legal significance of the prosecution of WikiLeaks founder Julian Assange. Much of the prosecution could turn on whether Assange is a journalist. Notably, Assange just received a European journalism award from the European parliamentarians. Assange is this year’s recipient of the 2019 GUE/NGL Award for Journalists, Whistleblowers & Defenders of the Right to Information.

In the meantime, there are some interesting comparison between the Assange and Zenger cases in the long-standing debate over what constitutes press freedoms.

Here is the column:

The arrest and expected extradition of Julian Assange has set into motion what could prove to be the most important free speech and free press case in our history. Or not.

Assange has been charged with a single count of participating in the hacking of intelligence computers with Chelsea Manning to reveal controversial intelligence operations in the United States.

For many, Assange is a journalist, a whistleblower, a hero. Yet for others in Washington, he is the man who embarrassed the establishment in Congress, the intelligence community and even the media.

Those powerful foes are likely to bring considerable pressure to deny Assange a platform for highlighting the operations that led to massive civilian losses and undisclosed military strikes, the very type of information disclosed in the celebrating “Pentagon Papers” case involving the New York Times in the Vietnam War.

For historians in both Great Britain and the United States, there should be something eerily familiar in this controversy.

Almost 300 years ago, the foundations for American protections of the free press were laid in the trial of John Peter Zenger.

The case has striking similarities to the pending prosecution of the Wikileaks founder.

In the case, the recently installed British governor William Cosby was the subject of an anonymous pamphlet that detailed his many abusive and corrupt practices in New York and New Jersey, from stealing Indian lands to pilfering the Treasury to rigging elections.

Cosby ordered four editions of the Zenger’s New York Weekly Journal publicly burned and arrested Zenger. He then installed a biased judge who held Zenger’s defence lawyer in contempt.

Despite using every means to punish Zenger for what Cosby called “scandalous, virulent, false and seditious reflections”, the colonial jurors balked and acquitted him.

It was the defining moment for the colonies and ultimately led to far stronger protections of journalists in the United States than in Britain, as embodied in the first amendment to the US constitution declaring that “Congress shall make no law… abridging the freedom… of the press.”

Much has changed in the United States for the press, but perhaps not as much as we claim.

The Justice Department crafted the charge to evade the constitutional concerns over the prosecution – and the unresolved status of Assange.T

By alleging that Assange was given a password and helped set up a cloud for Manning to share the data, the government is charging him not with the distribution of the material but actively participating in its theft.

However, the unsealed indictment in Alexandria, Virginia, is remarkably thin on evidence that Assange played such an active role or used the password in question.

Setting up a cloud for sharing information can easily be viewed as simply facilitating the anonymous disclosure from a source. Where reporters once arranged for drop spots, there are now digital equivalents for such exchanges.

Rather than exploring reasons and effort to reveal controversial intelligence operations, Assange could be forced to confine his defence to the more mundane charge of “computer intrusion”.

Yet, the indictment is conspicuously thin on the evidence of that role. The government alleges that Manning gave “a portion” of a password “to crack” which “was stored as a ‘hash value’ in a computer file that was accessible only by users with administrative-level privileges”.

However, the government then says not that Assange arranged to crack the code but only that “cracking the password would have allowed Manning to log onto the computers under a username that 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.

Assange is likely to face more charges once he is in the United States.

A superseding indictment might encompass the role Wikileaks played in publishing emails stolen from the Democratic Party during the 2016 election campaign.

Special Counsel Robert Mueller indicted 12 Russian military intelligence officers for their part in the hack and alluded to Wikileaks in those indictments, although not by name.

However, thus far, no Americans have been indicted for any alleged conspiracy with the Russians and, putting aside the narrative, Assange is so far being prosecuted for the same type of conduct as people messing with Netflix passwords.

But for now, the US only wants to show under extradition laws that there is a reasonable basis for believing that Assange committed a crime in the United States. The government also wants to avoid any criminal charge that could result in the death penalty.

Nevertheless, the Justice Department is likely to do what the British government failed to do with Zenger.

It will focus its charges on insular acts like sharing passwords or hacking. By doing so, the government can file a motion (what’s called a motion in limine) to prevent Assange from raising his motivations or the disclosure of the secret operations.

It could be declared immaterial. The jury will not hear the type of evidence that Zenger’s lawyers forced into his trial. Assange would look simply like some slightly creepy-looking Australian hacker.

US Attorney Tracey McCormick in Virginia could succeed if she keeps any counts focused on such technical and narrow acts.

It would be like reducing the whole of Macbeth to the final scene where Macduff beheads the King, and therefore revealing nothing about his motivation or history.

Reduced to Act V, Macduff simply looks like a blood-soaked regicidal maniac, rather than an avenging hero saving the country from a tyrannical leader.

To paraphrase Shakespeare, Wikileaks could not be vanquished until the Great Assange came to Capitol Hill.

He is now likely on his way and the trial could make the Zenger trial look like a model of transparency and accuracy.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University in Washington, DC.

74 thoughts on “Roughly 300 Years Later, Is Julian Assange The New John Peter Zenger?”

  1. The Government Is Treating Assange Like a Hacker to Punish His Journalism

    The Computer Fraud and Abuse Act is itself prone to abuse by prosecutors. This is another example.

    ANDREA O’SULLIVAN | 4.23.2019 8:30 AM

    https://reason.com/2019/04/23/the-government-is-treating-assange-like-a-hacker-to-punish-his-journalism/

    Excerpt:

    A lot of people don’t like what Assange did. (It’s kind of funny to compare people’s opinions on Wikileaks over time.) Or maybe they just don’t like the guy himself. Fine.

    But it’s hard to deny that the federal government is wielding the CFAA as it often does: a catch-all pretext to crack down on troublemakers.

    The Reporters Committee notes that this CFAA pseudo-technicality gives the government a way out of potential First Amendment problems involved with prosecuting the actual publication of the leaks. (This is the justification the Obama Administration gave for failing to prosecute.) They nab their guy without the constitutional fuss. Is such prosecutorial opportunism really something that Assange critics in the media wish to defend? Would their tune change if it was directed at one on their own team?

    No one honestly believes that the FBI is going after Assange on a good faith mission to uphold the Computer Fraud and Abuse Act. We know it’s because Wikileaks exposed government operatives. You may think he’s a hero. You may think he’s a scoundrel. Either way, we should all be worried about such abuses of “hacking” laws to crush ideological enemies.

    1. That reason article is a well supported opinion. However at times the way that journalists conspire to encourage others to violate the law is troubling. their “sources” are used and abused so journalists can get “the story” which gives them laud even as they skirt the same kind of culpability other “suspects” in an investigation would not have. But that is what the Pentagon Papers case requires. It would be up to the SCOTUS to narrow it. I think if they convict Assange he may have a solid appeal.

  4. Pentagon Papers lawyer: The indictment of Assange is a snare and a delusion

    BY JAMES C. GOODALE, OPINION CONTRIBUTOR — 04/12/19 06:35 PM EDT

    https://thehill.com/opinion/criminal-justice/438709-pentagon-papers-lawyer-indictment-of-assange-snare-and-delusion

    Excerpt:

    When Assange arrives in the United States through extradition, as many expect he will, the government will then be able to indict him for his participation in that election. It is not out of the question that the government will come up with additional charges against Assange.

    While it is true, as others have noted, that the government has not charged Assange under the Espionage Act — against which Assange would have the strongest defense under the First Amendment — the government has alleged that he and Army intelligence analyst Chelsea Manning participated in a conspiracy under the Espionage Act. (For the legal eagles, you can see this on Page 5 of the indictment, referring to Title 18 U.S. Code, Sections 793(c) and 793(e).)

    I have some familiarity with Section 793(e) because, in 1971, it was the basis on which the government enjoined the New York Times from publication of the “Pentagon Papers” for 17 days, until the U.S. Supreme Court decided that such an injunction violated the First Amendment. I was then vice president and general counsel of the New York Times and led the team of lawyers who defended the Times in that case.

    References to a conspiracy under the Espionage Act in the Assange indictment raise the question of whether the U.S. government is going for a bait-and-switch — get Assange past the English courts and to the United States, only to charge him with espionage when he is on American soil.

    It is true that the extradition treaty states that a defendant cannot be prosecuted for any offense other than that on which the surrendering country agreed to extradite. But the treaty excludes from this rule any charges “based on the same facts as the offense for which extradition was granted.” And so, while the indictment makes out a case for espionage without charging it, the government has laid the groundwork to get around the rule that Assange be charged only for the offenses already stated.

    The U.S. government has attempted to divert attention from the basic fact that this indictment punishes the publication of truthful information by making it seem that Assange “cracked” a code to permit Manning to have access to further classified information, which Manning in turn then could leak to Assange. That’s not what the indictment says. It says that Assange told Manning how to cover her tracks with respect to her leaks so the government could not catch Manning.

    Can a journalist instruct his source in a manner which will permit the source to escape identification? The answer is, generally speaking, yes — but whether it applies to news-gathering in the Digital Age, using the computer, will be the question in this case. More details will be needed to answer this question.

    If Assange is found guilty of conspiring with Manning under this indictment, which incorporates the Espionage Act, this will be a blow to the First Amendment. It will criminalize the news-gathering process and will be a precedent for future cases concerning leaks. This will be particularly so since substantially all leaks in the future will be computer-generated.

    And so, while the indictment by itself is bad enough, there still is more to come, such as further indictments of Assange. All we are seeing now is the tip of the legal iceberg.

    James C. Goodale was the vice chairman and general counsel of the New York Times and is the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and other battles.”

    1. Julian Assange’s Prosecution is about Much More Than Attempting to Hack a Password

      BY CINDY COHN
      APRIL 16, 2019

      https://www.eff.org/deeplinks/2019/04/julian-assanges-prosecution-about-much-more-attempting-hack-password

      Excerpt:

      Of course, breaking into computers and cracking passwords in many contexts is rightly illegal. When analyzing the worst abuses of the CFAA, EFF has argued that the statute should only be applied to serious attempts to circumvent technological access barriers, including passwords. But even if the government has made a sufficient claim of a ‘legitimate’ CFAA violation here, it still must prove every element beyond a reasonable doubt, and it should do so without relying on irrelevant arguments about whether Wikileaks was truly engaged in journalism.

      Whistleblower Chelsea Manning was charged in 2010 for her role in the release of approximately 700,000 military war and diplomatic records to WikiLeaks, which created front page news stories around the world and spurred significant reforms. The disclosure of classified Iraq war documents exposed human rights abuses and corruption the government had kept hidden from the public. While the disclosures riveted the globe, they also angered, embarrassed, and inconvenienced many, including the U.S. Departments of Defense and State, although no injuries or deaths were ever demonstrated as a result.

      The Assange indictment, in contrast, arises from conversations the two had about an apparently unsuccessful attempt to access other classified documents. Here’s why it seems clear to us that the government’s charge of an attempted conspiracy to violate the CFAA is being used as a thin cover for attacking the journalism.

      First, the government spends much of the indictment referencing regular journalistic techniques that are irrelevant to the CFAA claim. The indictment includes the actual elements of the CFAA claim in paragraph 15. Here’s an attempt to translate it in plain English: pursuant to an agreement aimed at giving Assange access to secret government information, Manning gave Assange a scrambled portion of a password that would allow Manning to log into a computer in a way that would hide her identity from the government. Assange’s only alleged illegal act was trying to unscramble a portion of that password.

      If the government wasn’t aiming further, it could have stopped there. But it didn’t. Instead it included descriptions of normal journalistic practices in the modern age: using a secure chat service, using cloud services to transfer files, removing usernames, and deleting logs to protect the source’s identity. The government includes in the indictment a cryptic comment by Assange: “curious eyes never run dry in my experience,” which it characterizes as “encouraging” violations of the law. The government’s inclusion of these facts, as well as its reference to the Espionage Act, is a strong signal that it believes these other actions should also be viewed as part of a crime.

      1. fair enough but good luck arguing pretext. it almost never works for anybody else so why will it work with assange?

        journalists are some kind of super-class in America above us all. And they say that’s necessary!

        the crazy thing is maybe it is.

        or maybe the highly privileged caste of journalists are the cat’s paw of the corporate oligarchy itself. it’s worth considering. I think the extreme leftists who say this all the time, may have a point.

  5. OT April 15 tax day” Contrary to a media that spins using “IRS data to produce a special report last year that shows how widespread the tax benefits truly are.”

    “Trump tax cut keeps on giving
    ANALYSIS/OPINION:

    Another Tax Day is behind us, but negative media coverage of President Trump’s signature tax-cut legislation continues.

    Many reporters and pundits didn’t even wait until the tax cut was signed into law in December 2017 to begin mischaracterizing it. Of course they called it a sop to the rich, but they went one better than that old chestnut, insisting it would shaft the middle class and the poor. According to many, it was designed to do exactly that.

    Never mind that the real-world experience of most Americans in the wake of these articles contradicted these gloom-and-doom predictions.

    Almost immediately, numerous employers — including Boeing, AT&T, FedEx, CVS, and others — began offering bonuses to their employees. Nearly 200 companies, including Walmart, announced wage hikes due to the 2017 tax cut. Still others enjoyed higher contributions to their retirement plans.

    The benefits soon went beyond that, however. The tax cut contributed to the strong economy we’ve been enjoying, leading many businesses to hire more and more workers. The United States added more than 2.6 million new jobs in the year following the passage of the tax cut — nearly a 25 percent increase from the previous year.

    Unemployment is way down, with jobless claims at their lowest since 1969, thanks in large part to the tax cut. There’s something you don’t hear on CNN and other media outlets.

    The media have continued to claim the tax cut was entirely too narrow — that it helped wealthy Americans at the expense of others who are less well-off. So The Heritage Foundation used IRS data to produce a special report last year that shows how widespread the tax benefits truly are.

    They found that in 2018 taxpayers would save an average of $1,400. Even better, married couples with two children would save more than twice that: $2,917.

    And the good news was truly nationwide. Their report showed that every U.S. congressional district would enjoy these tax benefits.

    That’s not to say that every last taxpayer would get a break. A lot depends on an individual’s circumstances — his job, deductions, credits, withholdings. But the data plainly showed that most Americans would be better off directly. And obviously everyone benefits in some measure from the effects of a stronger economy.

    So as tax season got underway a few weeks ago, the media tried a different tack. They highlighted how some taxpayers had been surprised to discover their refunds were lower than they were expecting. Worse, some who had anticipated a refund wound up with a bill to pay.

    All such reports did, however, was illustrate the fact that many Americans don’t understand how refunds work.

    It’s nice to get that refund check, of course, but it’s not really a cause for celebration. You’re not getting extra money from the government. You overpaid your taxes, and they’re returning the overage. You essentially gave Uncle Sam an interest-free loan, and now he’s paid it back.

    The fact that your refund check is smaller doesn’t mean you’ve enjoyed no benefit from the 2017 tax cut. If you’re like many Americans, you got a bonus, a raise, and your employer started withholding less in taxes.

    The fact that you wound up months later with a smaller refund check is unfortunate, but it’s simply not evidence that the tax cut didn’t help you. On the contrary, you experienced those benefits even sooner — which is a good thing.

    What we should be concerned about instead is that the tax cut has an expiration date of 2025. Unless Congress extends them, Americans will be in for some serious sticker-shock.

    Lawmakers should make it priority this year to make the 2017 tax cut — which has already done so much good — permanent. There’s no time to lose.

  6. Maybe a more accurate comparison is the book “1984” by George Orwell. The “Thought Police” of Oceania are trying to turn Assange into an “unperson”. Truth-telling contrary to the Establishment’s propaganda arm – “Ministry of Truth” – is strictly forbidden in Oceania, This cynicism of American voters, of tactics like this, is precisely why Trump is winning over the Establishment (from a non-Trump voter).

  7. Some observers are of the opinion that the driving force behind the extradition and prosecution of Julian Assange might be the current Secretary of State, and former Director of the CIA, Mike Pompeo. If so, then Assanges role in the Vault 7 and Vault 8 leaks may be the fire under the seat of Pompeo’s pants.

    Did you know that Roger Stone publicly bragged about his efforts to secure a pardon for Assange? Did you also know that Paul Manafort took a trip to Ecuador to discuss “something” (we know not what) pertaining to Assange with The Ecuadorians. Did you also know that Assange sent two Direct Messages to Donald Trump Jr. asking to be made The Australian Ambassador to the U. S.; both of which Direct Messages made reference to the Vault 8 leak?

    Some observers have opined that Assange’s reference to Vault 8 looks a little bit like extortion (a.k.a. blackmail). I wonder what might happen under the seat of Trump Sr.’s pants if he thought Assange was trying to blackmail the United States through his son, Don Jr.?

    1. you have a very active imagination but it is equally predictable in that all roads lead back to your Baba Yaga, DJT

  8. Turley wrote, “However, the government then says not that Assange arranged to crack the code but only that ‘cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her’.”

    The government filed chat logs between Assange and Manning that show Assange claiming to have forwarded the has to his “Im guy”–what ever that means (don’t ask me). If such a person as an “Im guy” actually exists, then there could be a third person involved in the alleged conspiracy at issue.

    Turley also wrote, “Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.”

    That’s called “minimizing the damage.” While the government has not yet said whether or not the password was cracked, it should be reasonably clear that, if Manning had used the password and user name of a higher-level administrator, then suspicion for the theft, or the leak, would have been cast upon an innocent person. That’s quite a bit different than a journalist, or publisher, protecting the anonymity of a source. That’s a “journalist,” or a “publisher,” implicating an innocent person for the theft, or leak, of government property or documents. So ask yourself: Are journalists and publishers allowed to frame innocent people for crimes committed by their anonymous source so as to protect the anonymity of that anonymous source? Well . . . Are they? You Flaming Dipsticks with Broke-Off Tips, you.

    1. Correction: Change has to hash–whatever hash is (don’t ask me). Ask your own “Im guy”.

    2. Do any of you Flaming Dipsticks with Broken-Off Tips remember the case of Natalie Mayflower who leaked Suspicious Activity Reports to Jason Leopold of BuzzFeed? Supposedly Leopold requested information about Prevezon Holdings from Mayflower. I mention that because the legal jeopardy facing Assange today could easily become the legal jeopardy facing Jason Leopold of BuzzFeed tomorrow. And you know what would mean. Don’t you?

      All of the hand-wringing, breast-beating, hair-pulling lamentations being ladled out for the sake of poor, misunderstood Julian Assange could easily become a song of sorrow for Jason Leopold of BuzzFeed come some future indictment for more or less the same thing that Assange did. Are you ready for that? You Flaming Dipsticks with Broken-Off Tips, you.

      1. Wait a second. There’s no indication that Jason Leopold of BuzzFeed assisted Natalie Mayflower at maintaining her anonymity as a source by means of identity theft. That’s right. Identity theft. There is some indication that Manning gained access to The State Department Cables that Assange published after Manning and Assange had had their little “Jabber” chat about cracking hash for a password for a higher-level administrator. And it was during that “Jabber” chat that Assange told Manning that he had given that hash to his Im guy. So it is not inconceivable that Assange conspired with Manning to commit Identity Theft.

        1. Correction: The woman’s full name is Natalie Mayflower Sours Edwards. Or just plain Natalie Edwards. Sorry about that. But Mayflower is more memorable than Edwards or Sours for that matter.

  9. Jen Robinson @suigenerisjen
    1:28 PM – 17 Apr 2019

    “Important interview with UNSR on #torture Prof @NilsMelzer on #Assange: “extremely concerned” about US extradition and (like us) “surprised and shocked this arrest happened before [@UN_SPExperts] could see him” in the embassy as #Ecuador agreed on 25 April Jen Robinson added,”

    UN Rapporteur on Torture, Nils Melzer:

      1. “US extradition”

        “The extent to which the US has pressured Ecuador to expel him from the embassy remains unclear, though WikiLeaks maintains that Washington is actively involved.

        “”Ecuador recently secured $1.1 billion (€970 million ) in loans. The US representative to the IMF told Ecuador in late 2017 that loans were conditional on Ecuador resolving the Assange and Chevron matters,” WikiLeaks said in a statement.”

        https://www.dw.com/en/julian-assange-facing-embassy-exit-and-uncertain-fate/a-46725397

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