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The Damaging Precedent of the Julian Assange Espionage Guilty Plea

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All day yesterday and on this appearance on Brad Blog, I emphasized we won’t know how to assess the resolution of the Julian Assange case until we see the Statement of Offense.

At least as incorporated within his plea agreement, that’s now released.

As written, it is an especially damaging precedent. Both in yesterday’s post and with BradBlog, for example, I noted that the role of the alleged hacking the conspiracy is one key thing that distinguished Assange’s actions from what journalists do.

It’s not in the Statement of Facts — not even the attempt alleged in the indictment to help Chelsea Manning crack a password. The Statement of Facts only describes the period from 2009 to 2011, so Assange’s later alleged inclusion in the Lulzsec hacking conspiracy is also not included.

Rather than focusing on the alleged hacking, which always distinguished Assange from journalists, the Statement of Facts focuses on Assange’s disinterest in redacting the names of sources before publishing the documents.

In an August 2010 panel discussion, the Defendant said it was “regrettable” that individuals exposed through his website as having previously met with the United States government “may face some threat as a result.” In the same panel discussion, the Defendant stated that “we [WikiLeaks] are not obligated to protect other people’s sources, military sources or spy organization sources, except from unjust retribution,” adding that, in general, “there are numerous cases where people sell information . . . or frame others or are engaged in genuinely traitorous behavior and actually that is something for the public to know about.”

The primary other thing to implicate Assange in a knowing crime is his statement that,

unless [sources] were “a serving member of the United States military,” those providing classified information would have no legal liability for giving such classified information to him because ‘TOP SECRET’ meant nothing as a matter of law.

Asking sources to violate their non-disclosure agreements, of course, is something national security journalists do all the time.

Compare that to NSD’s press release on the plea, which did focus on the hacking.

As set forth in the public charging documents, Assange actively solicited and recruited people who had access, authorized or otherwise, to classified information and were willing to provide that information to him and WikiLeaks—and also solicited hackers who could obtain unauthorized access to classified information through computer network intrusions. Assange publicly encouraged his prospective recruits to obtain the information he desired by any means necessary, including hacking and theft, and to send that information to Assange at WikiLeaks.

This plea could have been written in a way that limited the damage of the precedent. For reasons we have yet to discover (but which may have been dictated by Assange’s side, not DOJ’s), it was not.

Barry Pollack, Assange’s US criminal defense attorney, is a very good attorney, and this agreement protects Assange very broadly — unsurprisingly, it covers far more serious conduct in 2017.

The United States agrees not to bring any additional charges against the Defendant based upon conduct that occurred prior to the time of this Plea Agreement, unless the Defendant breaches this Plea Agreement.

Mind you, Assange would have been insane to enter into an agreement with anything short of such a provision. But Assange has gotten immunity for years of (more serious) conduct with no admission to it.

There are three concessions to the United States in this plea (aside from resolving a years-long saga without the cost of more appeals and trial). First, Assange had to agree to do what he could to take down the materials in question.

Before his plea is entered in Court, the Defendant shall take all action within his control to cause the return to the United States or the destruction of any such unpublished information in his possession, custody, or that of WikiLeaks or any affiliate of WikiLeaks.

By context, this refers to just materials received from Chelsea Manning. A far more urgent concern for the US would and has been the source code for CIA’s hacking tools. While most of WikiLeaks’ content has long been removed, the stub for Vault 7 remains up at the WikiLeaks site, as well as links to one of the developer’s guides, still showing information treated as classified in the Josh Schulte case.

By entering into this plea, the US government doesn’t have to share any classified discovery with Schulte (or any discovery that might make it easier to sue).

As part of this Plea Agreement, and based upon the concessions of the United States in this Plea Agreement, the Defendant knowingly, willingly, and voluntarily gives up the right to seek any additional discovery. Further, the Defendant knowingly, wittingly, and voluntarily waives all pending requests for discovery.

And finally, he waives any lawsuit against the US for actions taken during the criminal investigation of him.

The Defendant, on behalf of himself and the Releasing Parties, hearby releases and forever discharges all and/or any actions, claims, rights, demands and set-offs, whether in this jurisdiction or any other, and whether in law or equity, that he ever had, may have or hereafter can, shall or may have against the United States arising out of connected with the United States Department of Justice’s criminal investigation, extradition, and/or prosecution of the Defendant.

This is not a surprise, but it is of particular concern here. But this langauge doesn’t exclude lawsuits against the CIA to the extent the CIA’s conduct was dissociated from the criminal investigation. Assange is pursuing actions in Spain against the security guy who surveilled Assange while he was at the Ecuadorian Embassy. While WikiLeaks clearly had non-public information to launch that suit, its claims that this was CIA surveillance, rather than FBI surveillance, has never been convincing.

The US has also invoked State Secrets in a lawsuit brought by WikiLeaks associates against the CIA in SDNY, and resolving this case may make those State Secrets claims easier to sustain (though Judge John Koeltl has not yet dismissed the case). But again, the CIA is the defendant there.

The Breach language, which looks like it was changed after the plea was originally drafted, is quite narrow — it only covers events that lead up to the judge accepting the plea.

It’s over. Both sides lost. Chelsea Manning especially lost, given the additional time she spent in jail resisting a subpoena for testimony that would never be used at trial.

The question remains how much damage this loss for both sides will do in the future.

Julian Assange Officially Asks Trump to Pardon Him for Helping Him Get Elected

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As I have noted, there’s abundant evidence that Robert Mueller investigated pardon discussions between Julian Assange and Roger Stone; that investigation appeared to be ongoing at least as of October 2020. That should make any Trump pardon of Julian Assange at least as legally fraught as any of the others he has given or is expected to give, short of a self-pardon.

Predictably, Ken Vogel makes no mention of that in his story on two parallel efforts to obtain a pardon for Assange. Nor does Vogel note that the petition submitted by Assange’s US defense attorney, Barry Pollack, includes what would be that quid pro quo in the requested scope of the pardon.

Mr. Assange should be granted a pardon to cover the conduct at issue in the pending criminal case against him and any other conduct prior to the pardon grant that could be the basis for criminal charges against him in the United States.

If Trump gave Assange a pardon with this scope, the language would amount to a pardon for helping Trump get elected, a pardon under discussion within days of Trump’s 2016 victory if not even before it. This would amount to a more generous pardon than Trump gave his own rat-fucker, Roger Stone.

Along with a misrepresentation of what the current CFAA charge against Assange is and a claim that Assange, “has already been confined longer than any person ever charged or convicted under the Espionage Act in its more than 100-year history” (effectively counting time Assange chose to hide out in the Ecuadorian Embassy while still engaged in similar acts to those he’s being prosecuted for), Pollack presents a really hysterical subset of the files Assange leaked in 2016 and 2017:

In 2016, WikiLeaks published:

  • 19,252 e-mails and 8,034 attachments from the Democratic National Party leadership, which resulted in the resignation of five top officials who had taken actions during the primaries in favor of Hillary Clinton over Bernie Sanders.

In 2017,WikiLeaks:

  • exposed lax security in the CIA unit dedicated to malware development, a fact acknowledged by an internal CIA report into the publication, which was subsequently revealed by Senator Ron Wyden; and
  • published the “the Russia Spy files,” documents relating to Russia under Vladimir Putin, including releases about surveillance contractors in Russia.

Pollack leaves off, among other things, the Podesta files involved in the seeming quid pro quo (which I guess might otherwise make him party to the crime). And he includes the Russian files for the same reason WikiLeaks published the already published files — as propaganda to cover up his role as a cut-out for Russia. The Vault 7 release, of course, happened during the period when — Pollack claims — Assange was “confined” as if it had anything to do with Espionage charges.

The real focus of the Vogel story, however, is how — in the wake of Trump’s coup this week — a bunch of Australian buddies of Assange just signed a “pro bono” contract with a lobbyist to push for the pardon.

Mr. Davis, who is now a lawyer specializing in national security and whistle-blower cases, is on the board of Blueprint for Free Speech, an Australia-based nonprofit group that advocates for press freedoms and whistle-blower protections. The group, which was started by Suelette Dreyfus, a former journalist who is an old friend and collaborator with Mr. Assange, signed a pro bono contract on Saturday with the lobbyist Robert Stryk to seek a pardon for Mr. Assange.

During Mr. Trump’s presidency, Mr. Stryk, who is well connected in Trump administration circles, has developed a lucrative business representing foreign clients in precarious geopolitical situations.

He has worked for a jailed Saudi prince who had fallen out of favor with his country’s powerful de facto leader, as well as the administration of President Nicolás Maduro of Venezuela, which the Trump administration considers illegitimate. Mr. Styrk also worked for Isabel dos Santos, the daughter of Angola’s former president, who is accused of embezzling millions of dollars from a state oil company she once headed, as well as the government of the former Congolese president Joseph Kabila, which had faced American sanctions for human rights abuses and corruption.

Disclosure: my travel expenses were paid to speak at events in Australia in 2017 by Dreyfus’ organization.

Again, I’m perfectly happy with the decision that our prisons are too inhumane for Assange. Pollack is a superb lawyer and Assange is certainly entitled to a vigorous defense (the first real hint of which shows up in the petition). But this whole effort is yet more of a propaganda campaign hiding what Assange has become and the role Assange had in electing the guy who just attempted a coup to stay in power. That does not serve journalism, though it may give Trump enough cover to pay off his 2016 campaign dues to Russia.