Bill Barr Is Wrong On Assange

Bill Barr has been (in my opinion) wrongly attacked for many of his actions with regard to the Special Counsel Report. Indeed, I defended his decisions in print and I testified in favor of his confirmation. I still believe that he is an excellent choice for Attorney General. However, on the charges against Julian Assange, he is wrong. Dead wrong. As I stated in a recent column, the use of the Espionage Act strikes at the heart of the First Amendment. Now, the Washington Post is reporting that two prosecutors involved in the Wikileaks case argued against the new charges.

 The Washington Post reported Friday, prosecutors objected that the charges “posed serious risks for First Amendment protections.” They were of course correct. It is reassuring that some of the prosecutors saw the dangers and raised their voices in opposition. However, the decision (presumably by Barr) to move forward has created a genuine legal crisis for the press freedom in the United States.

What is troubling is that the Obama Administration appears to have rejected this course. However, in 2017, Attorney General Jeff Sessions reportedly pushed the U.S. Attorney for the Eastern District of Virginia to take a second look the charges. Ironically, the veteran prosecutor who was asked to look at the case was named James Trump. He has a long and accomplished resume of prosecutions and is hardly timid in bringing charges. He was involved in the case against CIA officer Jeffrey Sterling for giving classified information to journalist James Risen.

However, Trump and his colleagues Daniel Grooms raised objections over the threat to press freedom. That debate appears to have raged for months.

I am assuming that Barr had to approve the final charges but there is no confirmation of his role.

I have always said that, despite our friendship, Barr and I hold divergent views in some areas. The most obvious is executive privilege and powers. I am a typical Madisonian scholar and tend to favor Congress in fights with the Executive Branch. My natural default position is to Article I. Barr’s natural default is to Article II and executive power. Barr is also a hawk on national security law, particularly when it comes to the protection of classified information. He is by no means anti-media. However, he has always been a hardliner on the protection of national secrets and national security.

Nevertheless, this is wrong and Barr should have stopped it. The initial charge against Assange avoided the direct attack on press rights but focusing on the stealing of information (and Assange’s alleged role in that theft). That restrained response was blown away with this all-out attack on First Amendment rights of journalists. Simply saying Assange is not a journalist is not enough. He is being charged for conduct that is indistinguishable from a wide array of reporters.

I previously wrote that Assange could have the makings of a modern John Peter Zenger trial. It now is and Barr and the Administration is on the wrong side of that fight.

112 thoughts on “Bill Barr Is Wrong On Assange”

  1. Hey Professor Turley

    Remind everyone exactly how well-acquainted you are with Barr. Even in your criticism of Barr, your (intentional or willfully blind) failure to focus on Barr’s willingness to act as Trump’s political hack (regardless of his legal pedigree and his legal acumen) stands out like a flashing neon sign.

    For a more sophisticated analysis of the Assange indictment, read the recent posts at emptywheel.

  2. Whenever I see these forums spammed by the trolls (e.g. Anonymous, L4D, Anon, Peter Shill, et al) invariably I think of the world’s oldest profession and how those “professionals” work hard for their money…while serving as a vector for various pathogens and contagion

    1. Do you have any idea at all what miracles of modern medical science it would take to make L4D look like Donna Summer?

  3. Glenn Greenwald tweeted:

    “In August, 2013, @theresa_may, when she was the Home Secretary, ordered my husband, @davidmirandario, detained at Heathrow Airport under a terrorism law for the crime of doing journalism. I’m currently in London, where I’ll likely get to watch her final fall. #KarmicBeauty”

    4:35 AM – 23 May 2019

  4. Finally a CIA that acts like it



    Under CIA Chief Gina Haspel, an Intelligence Service Returns to the Shadows

    CIA director seeks the mute button—for herself and her agency

    WASHINGTON—At a gala dinner in February to raise funds for the families of Central Intelligence Agency officers killed in the line of duty, CIA Director Gina Haspel surprised her audience by delving into details of spycraft the agency has used to run agents on the streets of Moscow. But the crowd’s astonishment at the unusual revelation quickly evaporated when the spy chief confided that the material came from a journalist’s book.

    “She’s gone to ground,” said Mark Lowenthal, a former CIA official and staff director of the House Intelligence Committee. “It’s not going to be any good for her to be out there attracting lightning bolts.”

    Share Your Thoughts

    What should be the proper role and public posture of the CIA and its top leaders? Join the conversation below.

    Interviews with nearly 20 current and former U.S. intelligence officials reveal a portrait of a CIA director who has been warmly received by the workforce she has spent her life among.

    The CIA’s first female director since its 1947 founding, she has put in place her own leadership team—which also includes many women—and so far has avoided having President Trump’s political allies embedded in the agency’s senior ranks.

    But if Ms. Haspel’s primary mission is overseeing a global spy agency charged with addressing threats ranging from terrorism to climate change, it sometimes seems her second priority is protecting the agency she has devoted her life to from the domestic threat of a toxic U.S. political culture.

    “I think that she’s adopting a strategy much like [FBI Director] Chris Wray of keeping a lower profile, avoiding situations where she’s put in the position of publicly contradicting the president,” said Rep. Adam Schiff (D., Calif.), chairman of the House Intelligence Committee, which oversees the CIA.

    “But she’s not shying away from sharing her assessments and those of the [intelligence community] in an unfiltered way. So I think she’s carried the balance as well as you can within this administration,” Mr. Schiff said in an interview.

    Mr. Trump has lashed out at his spy chiefs when he doesn’t like their conclusions, and Ms. Haspel hasn’t always been able to stay out of the line of fire.

    In December, she found herself in an awkward position with Mr. Trump and Secretary of State Mike Pompeo after The Wall Street Journal reported details of the CIA’s assessment that Saudi Crown Prince Mohammed bin Salman likely had a role in journalist Jamal Khashoggi’s death. The president and Mr. Pompeo have portrayed the intelligence as less definitive.

    In January, she and other spy chiefs told the Senate Intelligence Committee, in an annual public hearing on world-wide threats, that North Korea was unlikely to abandon its nuclear weapons and that Iran was complying with a 2015 nuclear accord.

    Both assessments seemed to undercut Mr. Trump’s policies. “Perhaps intelligence should go back to school!” he wrote on Twitter.

    The president summoned Ms. Haspel and Director of National Intelligence Dan Coats to an Oval Office meeting and photo session the next day. “It looked like a hostage-taking,” Mr. Lowenthal said.

    President Trump, joined by National Security Adviser John Bolton, CIA Director Gina Haspel, Deputy Director of National Intelligence Integration Edward Gistaro, and Director of National Intelligence Dan Coats, receives an intelligence briefing in the Oval Office on Jan. 31. Photo:
    Ms. Haspel and her colleagues have yet to deliver the companion testimony on world-wide threats before the House Intelligence Committee, as is customary. “We have tentatively scheduled an open hearing, but so far have not gotten agreement” from the spy chiefs to attend, a committee source said.

    More tests may be coming. Mr. Trump this week ordered Ms. Haspel and Mr. Coats to assist Attorney General William Barr’s probe into intelligence activities during the 2016 campaign, and empowered Mr. Barr to declassify information about the origins of the FBI’s investigation into Russia’s election meddling. Mr. Trump has claimed, without evidence, that his campaign was the target of improper spying.

    Ms. Haspel, 62 years old, who served in a series of secret assignments across the globe and at CIA headquarters, can be self-effacing, She rose to the agency’s top position without seeming to step over others, the current and former officials said. She can also be direct and no-nonsense.

    Former CIA Deputy Director Michael Morell said he is absolutely confident that Ms. Haspel will push back if policy makers ask the agency to do something it shouldn’t.

    “I was told that somebody asked that the agency do something that was inappropriate. Her response was, ‘No. And don’t ask again,’ ” said Mr. Morell, who hosts the “Intelligence Matters” podcast. He said he did not have details of the incident.

    Ms. Haspel regularly attends the president’s daily intelligence briefings, along with Mr. Coats. She maintains close ties with congressional intelligence committees and Mr. Pompeo, her predecessor at the CIA. The two speak by phone frequently and often meet in person.

    At the CIA, Ms. Haspel is seen as a steady leader, if not a visionary one.

    “She’s going to be a good steward of the place,” said a former colleague in the CIA’s Directorate of Operations who said he admires her. “If you’re looking for a transformational person—that’s not her.”

    But taking the CIA largely out of the limelight is no small accomplishment. For nearly two decades, it has been ensnared in near-constant controversies, over the Sept. 11, 2001, attacks; drone strikes; treatment of detainees; and Russia’s election interference.

    “She’s more filling the role of a historical director—that you don’t hear from them very much,” said Sen. Richard Burr (R., N.C.), chairman of the Senate Intelligence Committee.

    Mark Sparkman, who was Ms. Haspel’s supervisor on her first overseas CIA assignment—reportedly in Ethiopia—attended her swearing-in as director last May. Mr. Pompeo spoke, noting how it can sometimes be lonely at the top.

    At a post-ceremony reception in a hall at CIA headquarters lined with portraits of past directors, Mr. Sparkman said he found Ms. Haspel at a table by herself, with a soda water in hand.

    “I went over and congratulated her and said something to the effect that Pompeo’s comment had been spot-on,” he recalled. “She’s always been approachable…but there she was, only minutes removed from her swearing-in, standing by herself until the ice was broken.”

    Gina Haspel

    Age: 62
    Birth: Born Gina Cheri Walker, Oct. 1, 1956, Ashland, Ken.
    Education: B.S., languages and journalism, with honors, University of Louisville, May 1978
    Personal: She was unknown to the public until her February 2017 appointment as CIA deputy director.
    Career: Joined the CIA in January 1985. Details of her overseas postings are classified but are believed to include Ethiopia, Turkey and Thailand, as well as assignments as CIA station chief in Azerbaijan and the U.K.. Sworn in as CIA director on May 18, 2018.
    Highlights: She has spent most of her adult life on the CIA’s operational side. Called the National Clandestine Service and Directorate of Operations at different times, it is responsible for recruiting foreign agents, gathering intelligence and other clandestine operations.
    Senate confirmation: During her confirmation, she drew criticism for her role in the CIA’s post-9/11 detention and interrogation program. She was briefly chief of a base in Thailand, where a detained al Qaeda operative was interrogated using techniques many have equated to torture. Ms. Haspel told lawmakers the CIA shouldn’t have undertaken the enhanced interrogation program.

  5. In Barr we Trust…

    hang em high

    Trump Orders Declassification of Obama-Era Russia Probe Intel

    Democrats leading the impeachment charge against President Trump have repeatedly called on him to justify his assertion that Obama administration officials tried to undermine his 2016 presidential campaign and election. On Thursday night, he took the first step in trying to do just that when he ordered the declassification of intelligence documents that he has said show the pathway Obama officials navigated to spy on the campaign.

    In a directive to the CIA, the director of National Intelligence, the Pentagon and several other national security agencies, Trump handed Attorney General Bill Barr the authority to declassify or downgrade “information or intelligence that relates to the attorney general’s review.” The president ordered the agencies to “promptly provide such assistance and information as the attorney general may request in connection with that review.”

    Barr has begun looking into the origins and timing of the FBI’s 2016 counter-intelligence investigation, code-named “Crossfire Hurricane,” aimed at uncovering evidence that Trump campaign officials were conspiring with Russians to interfere in the election. The FBI’s probe included wiretaps on a Trump adviser Carter Page.

    Trump’s move came earlier than many of his allies and associates had expected. Most had expected him to wait until Justice Department Inspector General Michael Horowitz released the results of his year-long investigation into the sources and methods the FBI used to begin surveillance on the Trump campaign based at least in part on discredited information gathered by former British spy Christopher Steele.

    Barr has said the inspector general is wrapping up his probe and could release a final report as early as next month.

    But after a series of fiery clashes between Trump and Speaker Nancy Pelosi over the last two days, Trump moved to begin the declassification process.

    White House press secretary Sarah Huckabee Sanders in a statement said the order “will help Americans learn the truth about the events that occurred, and the actions that were taken during the last presidential election and will restore confidence in our public institutions.”

    Sanders also underscored the “the full and complete” authority Barr now has “to declassify information pertaining to this investigation, in accordance with the long-established standards for handling classified information.”

    The declassification process will undoubtedly shed new light on the role FBI officials, including former Director James Comey and his deputy, Andrew McCabe, as well as former FBI agent Peter Strzok, lawyer Lisa Page and former Associate Deputy Director Bruce Ohr, played in seeking the warrant application under the Foreign Intelligence Surveillance Act to begin spying on Page.

    The move also could help detail the role former CIA Director John Brennan played in pushing the narrative regarding Russian efforts to penetrate the Trump campaign. The first evidence of those efforts, according to media reports, came from foreign intelligence sources’ tipoffs, based on voice intercepts, computer traffic or human sources based outside the United States, dating back to 2015.

    Former National Intelligence Director James Clapper has argued that the unproven “Russian dossier” that Steele composed — and which was bankrolled by the Democratic National Committee and the Clinton campaign — was not the primary source for the FISA warrants. If not, then the declassified FISA-related documents will undoubtedly show what other information officials used to secure the surveillance warrants.

    Nearly two years ago, when Trump accused Susan Rice, Obama’s national security adviser, of engaging in the “unmasking” of U.S. persons as part of the counter-intelligence probe, a potentially criminal act, Democratic Rep. Adam Schiff said he should show proof that it occurred.

    “If he’s going to make accusations of criminality against anyone, he needs to show evidence to support that kind of charge,” the then-ranking member of the House Intelligence Committee said at the time.

    Rep. Eric Swalwell, now a candidate for the Democratic presidential nomination, went further, arguing that “if the president wants to say that Susan Rice committed a crime, he has the power to declassify. No one else does.”

    Trump tried to declassify materials related to the FBI’s Russian investigation back in September, but Democrats objected that doing so would compromise FBI “sources and methods.” The president abandoned the plan after key allies called on him not to release the material over concerns that doing so could have a negative impact on the then-ongoing Russia probe led by Special Counsel Robert Mueller.

    Trump and his allies have said that scrutinizing the FBI’s “sources and methods” is the only way to determine whether the U.S. government’s spying laws, which were greatly expanded after the 9/11 attacks, were abused to undermine Trump’s presidential campaign or to try to derail his presidency once elected.

  6. 3 Times Media Falsely Claimed Russiagate Transparency Would End The Republic

    As the media carry water for sources who selectively released information to perpetuate a false conspiracy theory, it is worth remembering other recent times they claimed that transparency would have devastating results.

    On Thursday, President Donald Trump issued a memorandum directing the intelligence agency heads to comply and cooperate with “a review of intelligence activities relating to the campaigns in the 2016 Presidential election.” The memorandum also gave Attorney General William Barr the authority to declassify information pertaining to the investigation.

    For several years, government officials from the Obama administration had alleged in anonymous leaks to friendly reporters that Trump was a traitor who had colluded with Russia to steal the 2016 election from Hillary Clinton. After nearly a year of investigation at the FBI, which included the use of wiretaps, national security letters, and overseas intelligence assets deployed against the campaign, Deputy Attorney General Rod Rosenstein launched a special counsel to further investigate the claim.

    Special Counsel Robert Mueller ended his nearly two-year probe with a determination that neither Trump nor his campaign — and indeed no Americans at all — had colluded with Russia to steal the 2016 election. That probe, whose overwhelmingly Democrat participants bristled at the charge they were engaged in a “witch hunt,” did attempt to show that Trump’s complaints against the false smear were tantamount to “obstruction of justice,” but was unable to do so.

    Media who are implicated in perpetuating the false allegation that Trump was a traitor reacted poorly to the news that Barr was given authority to bring some transparency to the Russia collusion narrative that had been effective precisely because it was shrouded in secrecy.

    As bizarre as it is for journalists to fight transparency — MSNBC’s Trump-bruised Joe Scarborough said declassifying documents is what an “autocrat” does — it matches the talking points of those inside the agencies who worry about their activities being exposed. With the implosion of the Russia collusion theory, neither the sources nor their complaint journalist buddies who promised “bombshell” after “bombshell” are covered in glory.

    As the media carry water for their leaking sources who selectively released information to perpetuate a false conspiracy theory of Russia collusion, it is worth remembering other recent times they claimed that transparency would have devastating results.

    1. Hiding Andrew McCabe’s $70,000 Conference Table

    In May 2018, Sen. Chuck Grassley (R-Iowa) revealed that unnecessary redactions of information requested by his Senate Judiciary Committee had gotten ridiculous. Former FBI deputy director Andrew McCabe, who was fired for lying about his leaks to the media in an unrelated probe, spent $70,000 on a conference table. The Department of Justice redacted that fact — obviously not for national security reasons.

    “I am unaware of any legitimate basis on which the cost of a conference table should be redacted. Embarrassment is not a good enough reason. The manner in which some redactions have been used casts doubt on whether the remaining redactions are necessary and defensible,” Grassley wrote in a letter to Rosenstein.

    2. HPSCI Report Was Supposed To End Republic

    As the House Permanent Select Committee on Intelligence prepared to release information about abuse of the secret court that permit the government to spy on American citizens, the Justice Department released a letter to the press saying the action was “extraordinarily reckless,”would be “damaging” to “national security,” and would risk “damage to our intelligence community or the important work it does in safeguarding the American people.”

    That was obviously not true. While the report revealed actions that embarrassed the FBI and Department of Justice, the revelations did not damage national security except insofar as they revealed to the world that law enforcement and intelligence were engaged in wrongdoing.

    Justice and the FBI also have a pattern of redacting huge swaths of reports and letters to and from Congress as part of their oversight investigation into the spying on the Trump campaign. When the redactions are lessened, they reveal not sensitive information that affects national security so much as embarrassing details about how Justice and FBI have conducted business. Examples here and here.

    3. Stefan Halper’s Outing By WaPo and NYT

    Among the most bizarre tag-team actions by the media and their sources was the outing of Stefan Halper in the pages of The New York Times and Washington Post — all while claiming that others were doing the outing.

    As Congress, performing oversight, began asking questions about the running of human informants against an opposing party’s presidential campaign, the media began quoting their sources saying that merely asking questions about this was tantamount to outing the individual.

    They then began revealing more than enough information about the individual to determine that it was Stefan Halper, whose life they said would be threatened if it was revealed that he was in the employ of the U.S. government instead of the Cambridge academic he claimed to be.

    While the claim rang hollow, it was true that the revelation of Halper’s identity was embarrassing for those agencies who were paying him millions of dollars to manufacture dirt on political enemies. And it was embarrassing, too, for the media who willfully swallowed those leaks and printed them even when told they were false, such as a Wall Street Journal story suggesting that Mike Flynn had an affair with a Russian woman.

    The New York Times appears to be trying this game again by revealing information about another source that was used to perpetuate the false conspiracy theory. The leakers of this information to The New York Times would likely be very high level, perhaps from the previous administration.

    Opposing parties’ political campaigns should not be spied on. False claims of conspiracies should not be weaponized by political opponents in government perches. To ensure that there is justice for those who engaged in this dangerous conduct — and to ensure it doesn’t happen against Americans and their president again — transparency is needed.

    The implicated parties — whether in the media or in the government — have cried wolf too many times to be taken seriously again. It is time for some transparency about the spying use of overseas intelligence assets, wiretaps, national security letters, and other actions against the Trump campaign.

  7. “She’s going to rat out Enigma. Is she?” -L4D

    My question, too.

    “Well . . . As long the Feds never turn their attention to Jason Leopold. Then it might not be so bad. Still, I think the Trump Justice Dep’t is looking to clamp down the screws on leakers, whistleblowers and journalists because they know ahead of time that they’re going to need that going forward into 2020 and . . . who knows what after that.” -L4D

    I think you’re exactly right.

  8. ‘“Bring It On”: Julian Assange’s 2015 Message to the U.S. Justice Department About Possible Charges’

    “Now, we even fell into this mistake back in 2011, 2012, where our situation was quite precarious. Based on legal advice, WikiLeaks doesn’t solicit information. In fact, WikiLeaks is one of the few organizations, because of our infrastructure, that we do often get unsolicited information. But we think it’s necessary to hold the line and say, “No, asking for tips is a very important thing to do. It’s always been done in journalism.” And we’re going to show that we do that. We are confident about doing that. We are confident that that is legal, under most judicial systems, and it should be legal also in the United States—we say it is legal under the First Amendment. And if the U.S. DOJ wants to have a fight about that in relation to the TPP or anything else, then bring it on.”

  9. The first amendment and the free press are in no more danger from this than it ever was. I have long maintained that Wikileaks is a criminal and outlaw organization because it serves as an open conduit for all classified data worldwide. Its solicitation of criminally stolen information deprives it of any protection granted the press by the first amendment. Wikileaks is distinguished from a free press in a number of ways. the only threat to the press from the added indictment is if mere “publication” becomes the standard for prosecution. If Barr thinks that’s enough, I believe he will lose. In this respect, Wikileaks and the free press both benefit.

    But Wikileaks does more, and that is clearly criminal. Its agents have direct contact with the thieves, and maintain such contact over a period of time. The press does the same, and is protected to some degree when it refuses to identify the source. However, in the internet age, Wikileaks has ongoing relationships with the sources for extended periods. Its agents advise, approve and support thefts of information BEFORE they happen. This makes Wikileaks a criminal conspirator. And it would make the free press a criminal conspirator if it did the same thing. The first amendment gives no protection from that no matter who does it. Such relationships, if they exist, will be revealed to the government by the criminal sources whenever they are caught and interviewed. The government may choose to make deals with the source that would leave the press open to criminal charges for any support that was given, especially if there was foreknowledge of future thefts.

    1. Have you considered the case of Jason Leopold and the woman whose name I can never remember–something like, Natalie Mayflower Edwards except that there’s one name missing from the series??? Ms. Edwards was a file clerk in Treasury Dep’t who leaked several Suspicious Activity Reports (SARS) about . . . (geez, I can’t remember anything anymore) . . . it might have been Michael Cohen ( but I could be wrong). In any case, Jason Leopold of Buzzfeed News (IIRC) had directed Ms. Edwards to the files in which he was interested.

      Under one of the several working theories of the most recent Assange indictment, the only significant difference between the two cases would be the “level” of classification on the documents “solicited.” The documents that Private Manning leaked were (IIRC) very highly classified. I’m not sure what the classification level was on the SARS that Edwards leaked. There may be a few other differences between the two case; such as the alleged fact than Manning leaked “informant identities” to Assange. Also, there is an allegation that Manning “attempted,” but failed, to hack into files that she was not authorized to access–whereas, all of the other files that she leaked were files that she was authorized to access.

      I swear. It’s the details. They always get you bollixed up with confounded details. O! Bother. Never Mind—Late4Dinner.

      1. Dr. Natalie Mayflower Sours Edwards

        May 2, 2019


        “Natalie Mayflower Sours Edwards, the U.S. Treasury Department employee accused of leaking confidential information related to the Mueller probe, may not have to wait until her January 21, 2020 court date for her case to be resolved.

        According to Courthouse News reporter Adam Klasfeld, Assistant U.S. Attorney Daniel Richenthal mentioned a “potential disposition” of the case during a status conference held Thursday morning.”

        Additional charging documents filed against Edwards in January of 2019 revealed that she had sent a message to the same reporter in 2018 regarding a different Treasury Department employee referred to as “Enigma,” who was willing and able to “pull the data quick” for the reporter. Per the latest charging documents, Edwards previously told the reporter that Enigma was a person with a “wealth of information,” who was “willing to verify any information you have and provide additional details as warranted.”

        1. L4D says–Oh no! She’s going to rat out Enigma. Is she? Well . . . As long the Feds never turn their attention to Jason Leopold. Then it might not be so bad. Still, I think the Trump Justice Dep’t is looking to clamp down the screws on leakers, whistleblowers and journalists because they know ahead of time that they’re going to need that going forward into 2020 and . . . who knows what after that.

          1. Replies at the end of the page are finding their way to the top, for some reason.


        2. Excerpted from the article linked above:

          . . . [T]he government’s initial charging documents accuse Edwards of disclosing “suspicious activity reports” (SARs) related to former Trump campaign chairman Paul Manafort and former Manafort associate Rick Gates to a BuzzFeed reporter, starting in Oct. 2017.

          [end excerpt]

          L4D says–So the leaked SARS were about Manafort and Gates–not Cohen.

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