Last week John Young, founder of Cryptome an American website, asked the Justice Department to indict his company for publishing some of the leaks for which WikiLeaks founder Julian Assange also has been indicted. Cryptome, Young asserts, published these leaks before Assange did.
There is no question that the Cryptome assertions are accurate, since they are fully documented and unchallenged in the opinion written by the United Kingdom court with respect to the extradition of Assange from Britain to the United States. Indeed, Young testified under oath in Assange’s U.K. case to this effect.
Since Cryptome published the leaks before Assange did, Assange should have no liability for such publication, many First Amendment lawyers believe. If so, this cuts the heart out of the government’s case against Assange, which is beginning to look like a piece of Swiss cheese because it has so many holes in it.
Young, an idiosyncratic architect in his late 70s with major architectural commissions to his credit, also teaches at Columbia University, from which he graduated. In the early 1990s he was among the first to scan classified materials on the internet, of which he had become an early user in connection with his architectural practice. Think of him as a brilliant, successful, highly educated, anti-war, anti-establishment activist.
It will be recalled that Army private Chelsea Manning leaked to Wikileaks classified materials consisting of diplomatic cables and Iraq-Afghanistan war logs — information from confidential sources involving the conduct of the war in those two countries. It also included a classified U.S. military video — now widely known as the “Collateral Murder” video — of two Reuters reporters being gunned down by a U.S. helicopter, an obvious war crime.
Assange published the war logs portion and the “Collateral Murder” tape. He then asked a range of U.S., British, French, German and Spanish media sites — The New York Times, The Guardian, Le Monde, Der Spiegel and El Pais — to be his partner in the publication of the diplomatic cables.
Assange spent months scrubbing these cables of sources. But before he could publish with his partners, Cryptome published his whole file.
It turned out that two Guardian journalists mistakenly published on the internet the code for Assange’s private material which disclosed sources and which he was using his best efforts to scrub. Cryptome noted the publication of Assange’s secret code, used it to open Assange’s website, and published information which Assange did not intend to publish, including his sources. Assange, furious that he had been scooped, then published himself with his sources identified.
This in turn means that Assange may not have liability under the U.S. Espionage Act for publication of the cables but only for publication of the Iraq and Afghanistan war logs. Even so, the U.S. government has a major problem in prosecuting Assange for the war logs because it was unable to prove in the case of Chelsea Manning that such publication caused any damage to anybody.
The government, no doubt realizing that it has severe weaknesses in its espionage case, bookended its indictment with hacking violations which might keep the case against Assange alive should the Espionage Act charges be eliminated.
Only one of the hacking violations was “tried” in the U.K. extradition case, and the U.S. government had a difficult time, in my estimation, proving its case.
Yet another hacking violation against Assange is based in part on dubious testimony from a convicted criminal who was jailed after the indictment, casting doubt on these hacking violations. In short, one wonders whether the hacking violations are merely a smoke screen to jail Assange by any means possible.
When Assange published the full version of the diplomatic cables, his publishing partners (The Guardian et al.) were angry with him since they “made a deal” with him that he would not publish sources. They wrote an angry letter to him which they made public; they did not know at the time, however, that Cryptome was the real culprit.
Last week, the New York Times and the other papers issued a statement backing Assange to let the public know they still support him and urge the Biden administration to drop the espionage case against him. This statement effectively cleared the air with respect to their relationship with Assange.
Assange’s case is on appeal to the U.K. Supreme Court and will be heard sometime next month. Assange also has appealed to the European Court of Human Rights, which could issue an injunction against his extradition.
It should be remembered that this case was brought by the Trump administration’s Justice Department, not by the Biden administration. Earlier, the Obama administration decided not to bring the case because it would set a precedent for suing those who publish classified information, such as The New York Times.
Despite what Cryptome says, the company really does not want to be indicted. It does, however, wish to attract attention to the illogic of the indictment of Assange. Cryptome’s Young said in an interview that “it is unfair to indict Assange” and not himself.
The whole case has a bad odor about it, inherited from the Trump administration. I have not asserted here, for example, the Trump-era CIA attempt to kidnap or kill Assange and the wiretap of his conversations with his lawyers, although I have written previously in The Hill about these events.
There is no reason Attorney General Merrick Garland should be stuck with an ill-advised case brought by the Trump administration. He would be well off getting rid of this one as soon as possible.
James C. Goodale is the former general counsel and vice chairman of The New York Times and the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.”