Judge’s ruling throws huge spanner into US extradition proceedings against Assange

Julian Assange
Tom Coburg

A US judge has ruled that WikiLeaks was fully entitled to publish the Democratic National Congress (DNC) emails, which means no law was broken. The ruling is highly significant as it could impact upon the US extradition proceedings against WikiLeaks founder Julian Assange, as well as the ongoing imprisonment of whistleblower Chelsea Manning.

The ruling

On 30 July, federal judge John G. Koeltl ruled on a case brought against WikiLeaks and other parties in regard to the alleged hacking of DNC emails and concluded that:

If WikiLeaks could be held liable for publishing documents concerning the DNC’s political financial and voter-engagement strategies simply because the DNC labels them ‘secret’ and trade secrets, then so could any newspaper or other media outlet.

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In other words, if WikiLeaks is subject to prosecution, then every media outlet in the world would be. The judge argued that:

[T]he First Amendment prevents such liability in the same way it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place.

Significantly, the judge added that it’s not criminal to solicit or “welcome” stolen documents, and how:

A person is entitled to publish stolen documents that the publisher requested from a source so long as the publisher did not participate in the theft.

Important win

Jen Robinson, a member of Assange’s legal team, described the judge’s ruling as an “important win for free speech”:

And US WikiLeaks lawyer Joshua Dratel said he was:

very gratified with the result, which reaffirms First Amendment principles that apply to journalists across the board, whether they work for large institutions or small independent operations.

Legal precedents

Prior to the ruling, the American Civil Liberties Union (ACLU) was party to a briefing to the court.

The ACLU summarised some of the legal precedents listed in the briefing. For example, the First Amendment of the US Constitution is a:

legal principle, articulated most clearly in the 2001 Supreme Court decision Bartnicki v. Vopper, [and] is a bedrock protection for the press. It is particularly important for national security reporters, who often rely on information that was illegally acquired by a source in publishing stories of considerable public concern. Indeed, this principle animated the court’s famous Pentagon Papers decision, protecting the right to publish stories based on a secret government account of official misconduct during the origins of the Vietnam War.

The briefing also referenced:

revelations of the CIA’s Bush-era torture program were based in part on leaks by whistleblowers throughout government. So, too, were stories exposing sweeping NSA surveillance programs — stories for which several newspapers won Pulitzer Prizes in 2005 and in 2014.

It added:

Likewise, much of the reporting on Watergate relied on anonymous sources divulging government secrets. Mark Felt, the deputy director of the FBI and the most famous Watergate source (nicknamed “Deep Throat”), took extensive steps to conceal his communications with the press because his leaks were under active investigation.

Furthermore:

an anonymous source sent more than 2.6 terabytes of encrypted information to a German newspaper and a U.S. investigative journalism non-profit. Known as the “Panama Papers,” these internal files of a now-defunct Panamanian law firm detailed a transnational tax evasion scheme developed for wealthy clients around the world. The disclosure of the files sparked public debate and multiple proposals for legal reform.

The ACLU concluded:

A ruling against WikiLeaks that narrowed this [First Amendment] protection could jeopardize the well-established legal framework that made these stories possible — and that is crucial to ensuring that the public has the information it needs to hold powerful actors to account.

Legal implications

The judge’s ruling could therefore have huge implications for US extradition proceedings against Assange.

Greg Barns, a barrister and longtime adviser to the Assange campaign, told The Canary:

The Court, in dismissing the case, found that the First Amendment protected WikiLeaks’ right to publish illegally secured private or classified documents of public interest, applying the same First Amendment standard as was used in justifying the The New York Times publication of the Pentagon Papers. That right exists, so long as a publisher does not join in any illegal acts that the source may have committed to obtain that information. But that doesn’t include common journalistic practices, such as requesting or soliciting documents or actively collaborating with a source. So this case is important in restating what is and is not protected under the First Amendment. But does it have implications for the extradition hearing? Well it certainly helps to remind the courts in the UK that the First Amendment protection is very broad.

Assange is understood to be ill, while Manning is incarcerated for refusing to provide further information about her role as a WikiLeaks source. With consideration of this latest ruling, both should be immediately released from their respective prisons.

Featured image via YouTube

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  • Show Comments
    1. Tom Coburg fails to show how this ruling, as he asserts, could impact upon Chelsea Manning’s incarceration. He quotes the judge: “A person is entitled to publish stolen documents that the publisher requested from a source so long as the publisher did not participate in the theft.” Assange is now under indictment by the U.S. for just such participation with Manning in 2010. Julian is of course innocent until proven guilty, but this ruling does not justify, as Coburg argues, immediately releasing Manning from jail for resisting a grand jury looking into the alleged participation.

        1. Since all U.S. grand jury proceedings are secret as a matter of law, we can only speculate. One reason for requiring Chelsea Manning’s testimony might be to help identify others besides the already indicted Assange who were part of the charged Conspiracy to Obtain, Receive and Disclose National Defense Information and/or Conspiracy To Commit Computer Intrusion. For example, what role was played by Herbert Snorrason, the Icelandic university student who helped manage WikiLeaks’ secure chat room where Assange and Manning exchanged online messages? And whom might Assange have recruited to assist him in cracking a password hash on Department of Defense computers connected to the Secret Internet Protocol Network, as requested by Manning and agreed by Assange in March 2010? Due to U.S. Army rules, prosecutors were not allowed to question Manning about any of this during her 2013 court-martial.

          1. “And whom might Assange have recruited to assist him in cracking a password hash on Department of Defense computers connected to the Secret Internet Protocol Network, as requested by Manning and agreed by Assange in March 2010?”

            It appears, from your post, that we don’t need to proceed to trial, as you’ve already found him guilty; the key word missing from it is ‘allegedly’, and indeed we find it in the indictment itself from the US Attorney’s Office in Eastern Virginia: “The indictment alleges that in March 2010…”, because that’s how the law works – a charge is alleged, and the defendant presumed innocent until such time as evidence proves otherwise. If the US Attorney’s office is compelled to allege charges, the same certainly goes for you, whoever you are.

            The following exchange is all they have to go on:

            “After this upload, that’s all I really have got left.”

            “Curious eyes never run dry in my experience.”

            It’s worth mentioning that encouraging a source to provide further information is, as any journalist knows, common and accepted practice.

            1. You are not a careful reader. In my comment of 31st July 2019 at 8:48 pm, to which you replied, I stated: “Julian is of course innocent until proven guilty….” And now you upbraid me for having “already found him guilty.” Instead of lecturing me, try reading what I wrote. As for your snide “whoever you are,” I have—unlike you—commented here using my real name. That’s who I am.

            2. Never mind your preceding post, you state, categorically: “And whom might Assange have recruited to assist him in cracking a password hash on Department of Defense computers connected to the Secret Internet Protocol Network, as requested by Manning and agreed by Assange in March 2010?” I’m afraid it isn’t good enough just to pay lip service to due process and the assumption of innocence and then proceed to ignore it in everything else you post. The sentence quoted above clearly takes it as axiomatic that he’s guilty as charged, and clearly presents the allegation that Assange agreed to help Manning crack a password on Department of Defence computers in March 2010 as fact. I suggest you read it again, and reconsider.

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