More evidence that US may seek to prosecute Julian Asssnge under the Espionage Act

More evidence has emerged that WikiLeaks founder Julian Assange could be prosecuted for offences under the US Espionage Act. Although testimony provided by a digital forensics expert raises questions about the prosecution.

Threat to former WikiLeaks staff/volunteers

A copy of a letter has been released, indicating that charges relating to the US Espionage Act maybe under consideration against one former WikiLeaks staffer, if not more. The letter is from the US Attorney’s Office, Department of Justice (DoJ), to former WikiLeaks employee and spokesperson Daniel Domscheit-Berg.

Here is a translation by Netzpolitik.

In the letter, the DoJ admits it is also investigating WikiLeaks for the “unauthorized receipt and dissemination of secret information“, which reportedly can be charged under the Espionage Act. The letter offers Domscheit-Berg immunity from prosecution, providing he fully co-operates. However, when Domscheit-Berg’s lawyers requested access to the proceedings, the DoJ prosecutors responded by withdrawing their offer of immunity.

WikiLeaks staffer Jacob Appelbaum was also requested to testify, but he reportedly refused. David House, a computer programmer and campaigner for Chelsea Manning ,was subpoenaed by the Grand Jury in May 2018. According to one media outlet, he’s reportedly co-operating with the DoJ in exchange for immunity.

Faulty indictment

So far, Assange has been formally indicted for offences relating to computer misuse. Basically, he is charged with assisting Manning in the hacking of US government computers. A guilty verdict could mean up to five years imprisonment.

A deconstruction of that indictment indicates the validity of the charges listed can be challenged. Indeed, the so-called offences merely equate to practices conducted by journalists worldwide (communicating with a source, respecting a source’s anonymity, etc), though the technologies have changed.

But with regard to the alleged cracking of a password, in an affidavit provided to the WikiLeaks Grand Jury, an FBI agent admitted:

there is no other evidence as to what Assange did, if anything, with respect to the password”.

Espionage charge

There has long been suspicion that once in the US, Assange could face more serious charges under the Espionage Act. That act carries the death penalty. However, under UK law an extradition request can be rejected if the destination country (e.g. the US) uses such a penalty, and offers no assurance it will not be applied. An extradition request can also be rejected if charges raised are seen as ‘political’.

But that means life inside the US gulag would still be on the cards:

23 hour daily confinement in a concrete box cell with one window four inches wide, six bed checks a day with a seventh at weekends, one hour of exercise in an outdoor cage, showers spraying water in one-minute spurts and “shakedowns” at the discretion of prison staff..

The late Michael Ratner, Assange’s US lawyer, was certain such a charge was planned all along:

[T]he Grand Jury’s number is 10, standing for the year it began, GJ which is Grand Jury and then 3793. Three is the Conspiracy Statute in the United States. 793 is the Espionage Statute. So what they’re investigating is 3793: conspiracy to commit espionage.

A December 2010 New York Times article argued that Assange could be prosecuted with offences beyond those under the Espionage Act, if it’s shown he provided technical assistance to Manning.

And journalist Chris Hedges believes that the theft of classified documents may end up as a charge:

If Manning, a former Army private, admits she was instructed by WikiLeaks and Assange in how to obtain and pass on the leaked material, which exposed US war crimes in Afghanistan and Iraq, the publisher could be tried for the theft of classified documents.

Evidence in doubt

However, not all is cut and dry.

At the trial of whistleblower Chelsea Manning, Mark Johnson, a digital forensics contractor for ManTech International and who also works for the Army’s Computer Crime Investigative Unit, was called to provide testimony. Reportedly, Johnson testified he had not seen any evidence that Nathaniel Frank, also known as ‘@pressassociation’ – both of whom the US authorities believe was Assange – encouraged Manning to seek or provide documents.

The prosecution then reportedly argued that evidence was likely deleted by Manning. That might partly explain why she has been subpoenaed to testify to the WikiLeaks Grand Jury.

And, again, this is why Manning is key to what happens next in the US prosecution of Assange.

Featured image via Wikimedia