Is Assange a Journalist? It Depends What Year You Ask

(Bloomberg Opinion) -- As Julian Assange awaits his extradition hearing in the U.K., the debate over what to call him and his organization, WikiLeaks, is once again important.

Depending on who is speaking, Assange is either a publisher, a hacker or the head of a hostile intelligence service. It can all be a bit confusing.

The debate though is vitally important. If WikiLeaks is not different from a news site, then its newsgathering and publications should be almost entirely protected from American prosecution under the First Amendment. If WikiLeaks is a journalism outlet and Assange is a reporter, then what happens to Assange could happen to other journalists.

But if WikiLeaks is a collaborator with Russian intelligence, then it is a pawn in an adversary's political campaign against a U.S. election. In this respect, it's important to draw a distinction between independent news organizations and Internet activists that advance the interests of or collaborate with hostile powers by publishing the emails that hackers steal.      

Let's start with the civil libertarian argument. WikiLeaks has published diplomatic cables, videos and emails that have extraordinary news value. The cables the organization disclosed in 2010 showed for example that Yemen's president boasted of lying to his legislature about U.S. drone strikes in his country. Another WikiLeak was the drone video that showed a U.S. airstrike that ended up killing a member of the Reuters news staff in Baghdad. These disclosures were in the public interest.

In this sense, indicting Assange – for encouraging his source for these disclosures (Private Chelsea Manning) to take steps to hide her identity when logging onto the networks containing the cables she ultimately stole – will have a chilling effect on journalism. As the Intercept's Glenn Greenwald and Micah Lee wrote last week, the U.S. indictment of Assange, "characterizes as a felony many actions that journalists are not just permitted but required to take in order to conduct sensitive reporting in the digital age."

This point has merit. The activities described in the Assange indictment do not really rise to the level of serious hacking. That said, the sheer volume of material WikiLeaks published in 2010 also endangered good people, in particular the confidential sources who spoke with U.S. diplomats with the expectation that their conversations would remain secret. In an interview with Guardian reporters in 2011, Assange dismissed the danger, saying if the sources were killed, they had it coming because they were informants.

A more charitable reading of the indictment is that the Justice Department is treating Assange like Al Capone, famously taken down on tax evasion charges. The indictment appears to go out of its way not to indict Assange on charges that he published classified information, which would establish a dangerous precedent against media organizations. Instead, the indictment treats Assange's coaching of Manning as a kind of hacking.

The Justice Department would be better off focusing on some of his more recent activities. Two specific incidents come to mind. WikiLeaks published in the summer and fall of 2016 the hacked emails of leading Hillary Clinton campaign officials along with the Democratic National Committee. In this case, Assange almost certainly did not receive the goods from a whistleblower, despite his self-discrediting innuendo that the murdered DNC staffer Seth Rich may have been his source. As the indictment from special counsel Robert Mueller alleges, WikiLeaks received the hacked personal emails of leading Democrats from Russian spies.

The second is the WikiLeaks March 2017 publication of a series of CIA hacking programs and exploits that the website said allowed the agency to hack into cars, phones and other devices. Revealing this capability counts as a news story. But the publication of such technical information and source code was an attack. It destroyed an arsenal of cyber-weapons by alerting adversaries to the precise weaknesses they needed to patch.

So whether Assange is a publisher depends on the year you're asking the question. When Assange founded WikiLeaks, its mission was to expose authoritarian governments. As he told potential collaborators in 2006, according to the New Yorker, "Our primary targets are those highly oppressive regimes in China, Russia and Central Eurasia." In those early days, WikiLeaks published all kinds of damaging information against all kinds of targets, from Somali Islamists to the Chinese government. Much of it was in the public interest.

And even in 2010 when Assange helped Manning steal and transfer the State Department cables it later exposed, he worked with media organizations to report out the raw material his source provided.

By 2016 though, WikiLeaks was not so much a publisher as it was a combatant in information warfare. Mueller alleged that WikiLeaks in that year published the fruits of Russian hacking to influence the 2016 presidential election. Then a year later, WikiLeaks disarmed key tools of the CIA, one of the agencies charged with defending against these kinds of Russian hacks. The greatest mystery of the indictment against Assange is why the Justice Department did not charge him for any of that.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.

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