On the Shoddy Journalistic Defense of “WikLeaks”

When it was first published, a letter that the NYT, Guardian, Le Monde, Der Spiegel, and El País signed, calling on the US government to drop the Espionage Act charges against Julian Assange, got the date of Assange’s arrest wrong — it was April 11, not April 12, 2019. The outlets have since corrected the error, though without crediting me for alerting them to it.

A correction was made on Nov. 29, 2022: An earlier version of this letter misstated the date of Julian Assange’s 2019 arrest. It was April 11th, not April 12th.

An email was sent by me and then a correction was made. No bill was sent for the free fact checking.

As it currently exists, even after correcting that error, the Guardian version of the letter misspells WikiLeaks: “WikLeaks.”

For Julian Assange, publisher of WikLeaks, the publication of “Cablegate” and several other related leaks had the most severe consequences. On [April 11th] 2019, Assange was arrested in London on a US arrest warrant, and has now been held for three and a half years in a high-security British prison usually used for terrorists and members of organised crime groups. He faces extradition to the US and a sentence of up to 175 years in an American maximum-security prison. [my emphasis]

The slovenly standards with which five major newspapers released this letter suggest the other inaccuracies in the letter may be the result of sloppiness or — in some cases — outright ignorance about the case on which they claim to comment.

Take the claim Assange could serve his sentence in “an American maximum-security prison.” The assurances on which British judges relied before approving the extradition included a commitment that the US would agree to transfer Assange to serve any sentence, were he convicted, in Australia.

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

While the assurances that Assange wouldn’t be subject to Special Administrative Measures (basically contact limits that amount to isolation) aren’t worth the paper they were written on — partly because Assange did so much at the Ecuadorian Embassy that, if done in a US jail, would get him subject to SAMs, and partly because the process of designation under SAMs is so arbitrary — reneging on the agreement to transfer Assange to Australia would create a significant diplomatic row. A sentence in an American maximum-security prison is explicitly excluded from the terms of the extradition before Attorney General Garland, unless Assange ultimately chose to stay in the US over Australia (or Australia refused to take him).

The claim that he could be sentenced to 175 years, when the reality is that sentencing guidelines and concurrent sentences would almost certainly result in a fraction of that, is misleading, albeit absolutely within the norm for shoddy journalism about the US legal system. It’s also needlessly misleading, since any sentence he would face would be plenty draconian by European standards. Repeating a favorite Assange line, one that is legally true but practically misleading, does little to recommend the letter.

In the next paragraph, these five media outlets seem to suggest that the Computer Fraud and Abuse Act conspiracy alleged in “the indictment” is limited to Assange’s effort to crack a password.

This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.

It is — in the 2017 to 2019 charging documents. But not the one on which Assange is being extradited.

The hacking conspiracy, as currently charged, is a 5-year conspiracy that alleges far more than — and starts before — the password cracking seemingly described in the paragraph. It includes Assange’s use of Siggi’s credentials to access a police database to monitor any investigation into himself, a request to hack a former WikiLeaks associate, the recruitment of Anonymous hackers to target US-based companies (arguably also an attempt to aid in the computer intrusion of classified databases, albeit not US government ones), and the exploitation of WikiLeaks’ role in helping Edward Snowden flee to recruit more hacks including, explicitly, a sysadmin hack of the CIA’s classified databases like the one for which Joshua Schulte has now been convicted. (The existing indictment ends at 2015, before the start of Schulte’s actions, though I would be unsurprised to see a superseding indictment incorporating that hack, leak, and exposure of sensitive identities.)

Are these media outlets upset that DOJ has charged Assange for a conspiracy in which at least six others have been prosecuted, including in the UK? Are they saying that’s what their own journalists do, recruit teenaged fraudsters who in turn recruit hackers for them? Or are these outlets simply unaware of the 2020 indictment, as many Assange boosters are?

Whichever it is, it exhibits little awareness of the import that Judge Vanessa Baraitser accorded the hacking conspiracy to distinguish Assange’s actions from actual journalism.

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking


In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Whether editors and publishers at the five media outlets know that Assange was superseded in 2020 or not or just used vague language that could be read, given the actual allegations in the indictment, to suggest that some of them think Assange shouldn’t be prosecuted for conspiring to hack private companies, the language they included about the CFAA charge has led other outlets, picking up on this misleading language (along with the original error about the arrest date), to write at length about an indictment, with a more limited CFAA charge, that is not before Attorney General Merrick Garland. So maybe the NYT, Guardian, Le Monde, Der Spiegel, and El País know about the true extent of the CFAA charge, but by their vagueness, these five leading newspapers have contributed to overtly false claims by others about it.

Finally, the letter repeats WikiLeaks’ narrative about the changing DOJ views on Assange, presenting it as a binary between the “Obama-Biden” and Donald Trump Administrations.

The Obama-Biden administration, in office during the WikiLeaks publication in 2010, refrained from indicting Assange, explaining that they would have had to indict journalists from major news outlets too. Their position placed a premium on press freedom, despite its uncomfortable consequences. Under Donald Trump however, the position changed. The DoJ relied on an old law, the Espionage Act of 1917 (designed to prosecute potential spies during world war one), which has never been used to prosecute a publisher or broadcaster.

This is a story WikiLeaks likes to tell even while incessantly publicizing a a story that debunks it. It is based on a public quote — made in November 2013 by former DOJ spox, Matt Miller, who left DOJ in 2011, about why DOJ wouldn’t charge Assange. But a Yahoo story last year included former Counterintelligence head Bill Evanina’s description of how the US approach to WikiLeaks began to change in 2013, after Miller left DOJ but still during the Obama Administration, based on WikiLeaks’ role in helping Snowden flee.

That began to change in 2013, when Edward Snowden, a National Security Agency contractor, fled to Hong Kong with a massive trove of classified materials, some of which revealed that the U.S. government was illegally spying on Americans. WikiLeaks helped arrange Snowden’s escape to Russia from Hong Kong. A WikiLeaks editor also accompanied Snowden to Russia, staying with him during his 39-day enforced stay at a Moscow airport and living with him for three months after Russia granted Snowden asylum.

In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks, according to Evanina, now the CEO of the Evanina Group.

Years earlier, CNN reported the same thing: that the US understanding of WikiLeaks began to change based on its role in helping Snowden to flee.

It should be unsurprising that the government’s approach to WikiLeaks changed after the outlet helped a former intelligence officer travel safely out of Hong Kong, because at least one media outlet made similar judgments about how that distinguishes WikiLeaks from journalism. Bart Gellman’s book described how lawyers for WaPo believed the journalists should not publish Snowden’s key to help him authenticate himself with foreign governments — basically, something else that would have helped him flee. Once Gellman understood what Snowden wanted, he realized it would make WaPo, “a knowing instrument of his flight from American law.” By his description, the lawyers implied Gellman and Laura Poitras might risk aid and abetting charges unless they refused a “direct attempt to enlist [them] in assisting him with his plans to approach foreign governments.” Like the US government, the WaPo judged in 2013 that helping Snowden obtain protection from other, potentially hostile, governments would legally go beyond journalism.

This is one reason clearly conveying the scope of the CFAA allegations is central to any credible commentary on the Assange case: because Assange’s exploitation of the Snowden assistance is an overt act charged in it. But five media outlets skip both the import of that act and its inclusion in the charges against Assange in a bid to influence the Biden Administration.

This WikiLeaks narrative also obscures one more step in the evolution of the understanding of Assange during the Obama administration, one that is more problematic for this letter, given that it would hope to persuade Attorney General Merrick Garland. Per the Yahoo article that WikiLeaks never tires of publicizing, the US government’s understanding of WikiLeaks changed still more when the outlet partnered with Russian intelligence on its 2016 hack-and-leak campaign.

Assange’s communication with the suspected operatives settled the matter for some U.S. officials. The events of 2016 “really crystallized” U.S. intelligence officials’ belief that the WikiLeaks founder “was acting in collusion with people who were using him to hurt the interests of the United States,” said [National Intelligence General Counsel Bob] Litt.

That’s important because, while the parts pertaining to WikiLeaks are almost entirely redacted, the SSCI Report on responses to the 2016 hack-and-leak makes it clear how central a role then-Homeland Security Advisor and current Deputy Attorney General Lisa Monaco played in the process. You’re writing a letter about which Garland would undoubtedly consult with Monaco. She knows that the gradual reassessment of WikiLeaks was no lightswitch that flipped with the inauguration of Donald Trump. Treating it as one provides one more basis on which DOJ could dismiss this letter. What changed wasn’t the administration: it was a series of WikiLeaks actions that increasingly overcame the “New York Times problem,” leading to expanded collection on Assange himself, leading to a different understanding of his actions.

Here’s why I find the sloppiness of this letter so frustrating.

I absolutely agree that, as charged, the Espionage Act charges against Assange are a dangerous precedent. That’s an argument that should be made soberly and credibly, particularly if made by leaders of the journalistic establishment.

I agree with the letter’s point that, “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” (though these same publishers decided that disclosing the names of US and coalition sources was not in the public interest, and Assange’s privacy breach in doing so was the other basis by which Baraitser distinguished what Assange does from journalism).

But so is fact-checking. So is speaking accurately and with nuance.

If you’re going to write a letter that will be persuasive to the Attorney General, it would be useful to address the indictment and extradition request as it actually exists, not as it existed in 2019 or 2020 or 2021.

And if you’re going to speak with the moral authority of five leading newspapers defending the institution of journalism, you would do well to model the principles of journalism you claim to be defending.

As noted, these outlets corrected the date error after I inquired about the process by which this letter was drafted. I have gotten no on-the-record comments about the drafting of this letter in response.

23 replies
  1. Yogarhythms says:

    Scathing indictment of five leaders in national journalism. Evidence, receipts, fact-checking, everything a holiday table setting needs. Let’s eat.

    • J R in WV says:

      But does anyone know who really wrote this letter, with so many errors? Strange to have so many trivial errors in such a notable and public “letter”…

  2. Spencer Dawkins says:

    I weep to think that large “journalistic” outlets are crowding local journalists out of existence. If they were better at journalism, that could be an OK thing, most of the time, but since they aren’t …

  3. StevenL says:

    A Times subscriber, I am regularly disappointed with low standards in news, opinion and even copy-editing.

    Good that they at least corrected the error you pointed out; I had less luck with my most recent one, below:

    In Katie Benner’s analysis of Trump prosecution decisions facing DOJ (https://www.nytimes.com/2022/11/06/us/politics/trump-special-counsel.html), she says “The Mueller report found no evidence that the Trump campaign had broken the law in its dealings with Russia….”

    This is not correct and, frankly, stunningly sloppy.

    First, neither the Times nor I know everything that Mr. Mueller found, as parts of the report remain redacted, including parts related to what were ongoing investigations at the time the report was submitted.

    Second, Mr. Mueller describes evidence of lawbreaking directly in the report, for example with respect to the June 9, 2016 Trump Tower meeting beginning at p. 185. The report describes the very plain evidence of crimes. Mr. Mueller concluded, however, in this case and others, that the evidence was not sufficient to satisfy the department’s burden under the articulated standard: that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” This is very much not the same thing as “no evidence.”

    Finally, we know that several individuals associated with the campaign lied about material aspects of their interactions with Russia, including Michael Flynn, George Papadopolous, Roger Stone and Paul Manafort, all of whom were convicted for their lies. This, by itself, is strongly suggestive of illegality covered up by the lying.

    Please consider revising the incorrect statement above in light the actual Mueller report and the points above.

    • daelv says:

      After reading Pravda Ha Ha: True Travels to the End of Europe by Rory MacLean The geo/social implications of the Russian apparatchik(s) were apparent and why the OLC rule of not prosecuting an existing president has not been challenged in court. It was obvious Mueller was dancing around that rule to make his case.

      • earlofhuntingdon says:

        A federal court challenge requires an existing case or controversy, the existence of which the DoJ can control. A change in that opinion would have to come from inside the DoJ.

    • Zinsky123 says:

      All good points. It still galls me when I talk to conservatives and they assert that the Mueller report “showed no evidence of crimes committed” or that the report “exonerated” Trump. In both examples, the assertions are false. The 200+ contacts between Trump officials and Russian operatives was unprecedented in modern American history and some of those contacts involved known Russian intelligence assets (e.g. Kostantin Kilimnick and Maria Butina). Paul Manafort alone is the archetype for the modern American traitor – selling out America and American principles to the highest bidder. Disgusting. Thanks for your comments.

  4. Badger Robert says:

    Thanks for this post. Maybe DofJ wants the Russians to stop recruiting hackers posing as journalists.
    OT: it appears the Republicans are looking for an excuse to dump the former President. Ms. Wheeler can analyze whether its likely to succeed.

  5. Fcb says:

    “As it currently exists, even after correcting that error, the Guardian version of the letter misspells WikiLeaks: “WikLeaks.”

    Happy to see The Grauniad is still hewing to its timeless principles in this digital age.
    Apologies for flippancy.

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

  6. David F. Snyder says:

    … albeit absolutely within the norm for shoddy journalism about the US legal system …

    The norm is appallingly shoddy, isn’t it. I’d include economics under that umbrella as well.

  7. Brian says:

    Can someone explain to me why Julian Assange is considered a “journalist”? As far as I can see, he’s never worked as an actual journalist, he just ran a website dedicated to making public lots of confidential government and corporate docs. He seems to have been dubbed (or dubbed himself) an “editor” just by setting up a website to out secret documents. How does that constitute journalism?

    I might also point out that he evidently worked closely with Russia to help swing the 2016 election to Trump, so I’m confused as to why we should feel sorry for this guy. To me, that constitutes being an enemy of our democracy. Maybe there are larger issues involved, but this man pretty obviously chose to side with the fascists.

    [Welcome back to emptywheel. SECOND REQUEST: Please use a more differentiated username when you comment next as we have numerous community members named “Brian” or “Bryan.” Your unique username should contain a minimum of 8 letters to meet our new security standard. Thanks. /~Rayne]

  8. BeanOpenMind says:

    “that Assange was superseded in 2020 or not” is somewhat unclear. Does it refer to his (earlier, mentioned in the parenthetical further up) indictment, i.e., “Assange’s (2015) indictment”?

  9. earlofhuntingdon says:

    Speaking of shoddy work, how about that J6 Committee? Reports have it trying to organize a “crowd sourced” review of Trump’s tax records, now that it finally has them. That effort would be good for headlines and might create a public record, but it would seem to prepare little to no foundation for civil or criminal actions against Donald Trump – or for a congressional review of how credibly the IRS performed its routine annual audit of a president’s returns.

    Is there a credible reason why the committee has not already had expert forensic tax accountants and lawyers ready to work on these documents for months? The committee has been trying to get them for two years, and has known for months that it probably would get them with only a short time to review them before the next, now GOP, Congress takes over. A bit like a pilot who checks if his gear is down only after making a landing.

  10. earlofhuntingdon says:

    Kevin McCarthy, who hopes to become Speaker, is screaming that all J6 records are public records that belong to the American people – and warns the Dems to preserve them, as if in preparation for litigation.

    I don’t see that as preparation for public disclosure. I see that as McCarthy preparing to scream, without evidence, that the committee destroyed the records that would have made Republicans look good. I also expect him to do a rapid about face on or about noon on January 3rd, and do exactly what he claimed to fear Democrats would do: bury the committee’s records so that they never see the light of day or a courthouse.

  11. earlofhuntingdon says:

    This is one of the biggest headaches I had when working with Americans in international business: convincing them that other countries, especially in Europe, had real labor, workplace, privacy, and environmental rules that mattered – and had teeth – and that they couldn’t just work around them after the fact with no cost or consequence.

    In this case, Twitter attempted to fire the head of an Irish subsidiary and a host of other people by “generic” e-mail. The Irish court basically said, “This is Europe. You can’t do things that way here.” It made clear to Twitter that its attempt to terminate her had never taken effect. Responding to Twitter’s lawyers’ wishy washy “intentions” about better, if not compliant, future conduct, the court made clear it was not “touchy feely” or an “HR manager,” and made specific demands with which Twitter had to comply. A refreshing come uppance for Twitter – and all US managers.


  12. Emil Muz Jr says:

    (I think I commented once or twice under this account. I will adapt as advised)

    Wondering what NYT, etc would say to someone hacking their internal communication, employment records, confidential proprietary info…

    Seems like a legitimate topic in the public interest. Who is influencing them to report stories in the manner they do?

    Is anyone connected with WikiLeaks attempting to gather info about Russia and how the war is being managed? If not, why not?

  13. e.a.foster says:

    The wrong date may have been a typing error. Why don’t they simply proof read their work or have some one else do it.
    Proof reading letters, arguments, opinions, etc. is necessary, but it would appear for many professional organizations it isn’t important any more. It maybe because of a reduction in staff or laziness.
    In one of the comments some one makes reference to copy editing.
    I do wonder what is going on because there are spelling mistakes in the newspapers, etc. Decided the reporters/writers/etc are doing their own typing and sending it to print without having some one review it for errors.

    It is important that newspapers, magazines,etc get their spelling and dates correct. Sometimes getting it wrong can cause a whole lot of trouble. Back in the mid 70s an injunction was issued with the wrong date. worked for us, but for most of the country,(Canada) not so much

  14. Yorkville Kangaroo says:

    I think I can easily explain why the media only ever talks about the ‘poor Julian Assange’ story.

    It’s for two reasons. Firstly, it’s because squeaky wheels make the most noise and the lineup of Assange backers are everywhere and they have lots of media contacts that they utilize and exploit mercilessly in respect to their chosen ‘martyr’.

    Second, there’s no ‘there’ there on the other side of the coin. Is the establishment talking? Nope. They can’t and won’t because, prima facie, this is about the Espionage Act. It’s why the DoJ isn’t talking about the documents at Mar-a-Cesspool. So, just as the media talks about The Donald’s denials incessantly they have nothing to report from the DoJ directly.

    Of course these people only want to draw attention away from the actually important charges here. That Assange allegedly conspired to and hacked into classified government databases. And Assange is no more a journalist than I am. Setting up a website ex post facto to ‘report’ on ‘misdeeds’ is not a defense though his acolytes will tell you otherwise.

    As for where he spends his days in incarceration, the recently elected left-leaning Australian Labor government will look upon Assange somewhat favorably though they are no huge fans of his miscreant behavior.

  15. Savage Librarian says:

    Window Dressing

    WikiLeaks stained its window dressing
    as the whole world was coalescing
    around a pale conniver luminescing,
    but hiding what was far more pressing.

    He’s a honeypot who was professing
    fraud as truth while caressing
    egos to elicit dupes’ transgressing.
    The con revealed is still distressing.

    Those committed to acquiescing,
    refusing to do any honest assessing,
    are pulled by strings, a ghastly yessing,
    in a feedback loop: an unholy blessing.

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