The Damaging Precedent of the Julian Assange Espionage Guilty Plea

All day yesterday and on this appearance on Brad Blog, I emphasized we won’t know how to assess the resolution of the Julian Assange case until we see the Statement of Offense.

At least as incorporated within his plea agreement, that’s now released.

As written, it is an especially damaging precedent. Both in yesterday’s post and with BradBlog, for example, I noted that the role of the alleged hacking the conspiracy is one key thing that distinguished Assange’s actions from what journalists do.

It’s not in the Statement of Facts — not even the attempt alleged in the indictment to help Chelsea Manning crack a password. The Statement of Facts only describes the period from 2009 to 2011, so Assange’s later alleged inclusion in the Lulzsec hacking conspiracy is also not included.

Rather than focusing on the alleged hacking, which always distinguished Assange from journalists, the Statement of Facts focuses on Assange’s disinterest in redacting the names of sources before publishing the documents.

In an August 2010 panel discussion, the Defendant said it was “regrettable” that individuals exposed through his website as having previously met with the United States government “may face some threat as a result.” In the same panel discussion, the Defendant stated that “we [WikiLeaks] are not obligated to protect other people’s sources, military sources or spy organization sources, except from unjust retribution,” adding that, in general, “there are numerous cases where people sell information . . . or frame others or are engaged in genuinely traitorous behavior and actually that is something for the public to know about.”

The primary other thing to implicate Assange in a knowing crime is his statement that,

unless [sources] were “a serving member of the United States military,” those providing classified information would have no legal liability for giving such classified information to him because ‘TOP SECRET’ meant nothing as a matter of law.

Asking sources to violate their non-disclosure agreements, of course, is something national security journalists do all the time.

Compare that to NSD’s press release on the plea, which did focus on the hacking.

As set forth in the public charging documents, Assange actively solicited and recruited people who had access, authorized or otherwise, to classified information and were willing to provide that information to him and WikiLeaks—and also solicited hackers who could obtain unauthorized access to classified information through computer network intrusions. Assange publicly encouraged his prospective recruits to obtain the information he desired by any means necessary, including hacking and theft, and to send that information to Assange at WikiLeaks.

This plea could have been written in a way that limited the damage of the precedent. For reasons we have yet to discover (but which may have been dictated by Assange’s side, not DOJ’s), it was not.

Barry Pollack, Assange’s US criminal defense attorney, is a very good attorney, and this agreement protects Assange very broadly — unsurprisingly, it covers far more serious conduct in 2017.

The United States agrees not to bring any additional charges against the Defendant based upon conduct that occurred prior to the time of this Plea Agreement, unless the Defendant breaches this Plea Agreement.

Mind you, Assange would have been insane to enter into an agreement with anything short of such a provision. But Assange has gotten immunity for years of (more serious) conduct with no admission to it.

There are three concessions to the United States in this plea (aside from resolving a years-long saga without the cost of more appeals and trial). First, Assange had to agree to do what he could to take down the materials in question.

Before his plea is entered in Court, the Defendant shall take all action within his control to cause the return to the United States or the destruction of any such unpublished information in his possession, custody, or that of WikiLeaks or any affiliate of WikiLeaks.

By context, this refers to just materials received from Chelsea Manning. A far more urgent concern for the US would and has been the source code for CIA’s hacking tools. While most of WikiLeaks’ content has long been removed, the stub for Vault 7 remains up at the WikiLeaks site, as well as links to one of the developer’s guides, still showing information treated as classified in the Josh Schulte case.

By entering into this plea, the US government doesn’t have to share any classified discovery with Schulte (or any discovery that might make it easier to sue).

As part of this Plea Agreement, and based upon the concessions of the United States in this Plea Agreement, the Defendant knowingly, willingly, and voluntarily gives up the right to seek any additional discovery. Further, the Defendant knowingly, wittingly, and voluntarily waives all pending requests for discovery.

And finally, he waives any lawsuit against the US for actions taken during the criminal investigation of him.

The Defendant, on behalf of himself and the Releasing Parties, hearby releases and forever discharges all and/or any actions, claims, rights, demands and set-offs, whether in this jurisdiction or any other, and whether in law or equity, that he ever had, may have or hereafter can, shall or may have against the United States arising out of connected with the United States Department of Justice’s criminal investigation, extradition, and/or prosecution of the Defendant.

This is not a surprise, but it is of particular concern here. But this langauge doesn’t exclude lawsuits against the CIA to the extent the CIA’s conduct was dissociated from the criminal investigation. Assange is pursuing actions in Spain against the security guy who surveilled Assange while he was at the Ecuadorian Embassy. While WikiLeaks clearly had non-public information to launch that suit, its claims that this was CIA surveillance, rather than FBI surveillance, has never been convincing.

The US has also invoked State Secrets in a lawsuit brought by WikiLeaks associates against the CIA in SDNY, and resolving this case may make those State Secrets claims easier to sustain (though Judge John Koeltl has not yet dismissed the case). But again, the CIA is the defendant there.

The Breach language, which looks like it was changed after the plea was originally drafted, is quite narrow — it only covers events that lead up to the judge accepting the plea.

It’s over. Both sides lost. Chelsea Manning especially lost, given the additional time she spent in jail resisting a subpoena for testimony that would never be used at trial.

The question remains how much damage this loss for both sides will do in the future.

25 replies
  1. Bay State Librul says:

    Bolting down the “hacking” highway headed for a multi-car pile-up?
    We will see.

  2. Fancy Chicken says:

    Never been a fan of Assange even when it was cool to be so. But I was a very involved supporter of Chelsea Manning for a number of years even attending her court martial a number of times.

    What Assange did along with Adrian Lamo in manipulating Manning was disgusting. Even though Manning has said she chose to release the cables and video on her own accord and was not pressured she was still manipulated during a very vulnerable time and she has paid dearly and is still dealing with the emotional fallout from this situation.

    Her integrity throughout out this compared to Assange’s weaselyness and willingness to take a plea that could have a profound effect on real investigative journalism just shows what a thoughtless asshole he is. Being on the Asperger’s spectrum is no excuse.

  3. Magbeth4 says:

    The secrets which Manning revealed were the result of terrible leadership during the Iraq and Afghanistan wars. Those responsible at the White House and its axillaries should have been the ones prosecuted, for these were war crimes. I especially refer to the Abu Grab prison atrocities. Mr. Cheny and his minions are ultimately to blame for the attitudes which led to such behavior.

    The rest of the secrets which Assange hacked are very problematical, and did, indeed cost lives. He is guilty of aiding and abetting murder. He deserves to spend the rest of his days “down under.”

    • Cargill2 says:

      “He deserves to spend the rest of his days “down under.” ”

      Have you ever been to Australia – it’s a wonderful country – and Julian Assange is no doubt very pleased to be on home soil. I would like those who wish he hadn’t entered this plea deal to first of all go through the 14 years he has endured.

      I won’t enter the debate on whether he’s a hero or a villain, but the last 14 years have been more than punishment enough.

  4. Clare Kelly says:

    Thank you.

    Marcy wrote:
    “As written, it is an especially damaging precedent. Both in yesterday’s post and with BradBlog, for example, I noted that the role of the alleged hacking the conspiracy is one key thing that distinguished Assange’s actions from what journalists do.”

    This is indeed a double edged sword.

    “Well, they’re informants. So if they get killed, they’ve got it coming to them. They deserve it.”
    ~Julian Assange to a Guardian reporter.

    Fred Kaplan
    “Even if You Hate Julian Assange, You Should Be Glad He’s Finally Free”
    June 25, 2024

    Kaplan’s piece gives a decent overview/reminder that, imo, Assange is not a journalist and viewing him as a 1A icon is a sticky wicket.

    In 2012 Assange became the host of a television show on RT, the Kremlin’s main propaganda network.

  5. zscoreUSA says:

    If only he could face accountability and consequences for abusing the family of Seth Rich, similar to Alex Jones.

  6. klynn says:

    “…But Assange has gotten immunity for years of (more serious) conduct with no admission to it.”

    IANAL but my “wonderings out loud” to the above observation is that he flipped and his immunity for more serious conduct is in exchange for evidence in an ongoing investigation?

      • Capemaydave says:

        From what I understand the Aussies were the swing factor here. Assange’s team knew it and got a better deal than he, in my view, deserved.

        He’s a pawn in the ongoing (I hope) great international realignment.

      • klynn says:

        So immunity and no admission “just because” they (US) didn’t want to do anything about the more serious conduct?

        I get that both sides lost. I’m lost on CIA’s strategy or lack thereof.

        • Rayne says:

          There must be more stuff unpublished than we know about, and the intelligence community (and I don’t mean just CIA but perhaps FVEYs) didn’t want to risk dragging it out — at least that’s the only thing that makes sense to me.

          There’s enough damage and mitigation already because of Trump’s term. Maybe they didn’t want to have to do even more — was it possible there was a failover of some sort which might release intelligence in the event [X] happened, including a trial and incarceration.

        • Rayne says:

          Something still doesn’t quite sit right. How would Australia have the leverage to pull this off? So they showed up and lobbied — AUS is roughly the same size as either Brazil or South Korea in terms of GDP, but does AUS have the same kind of geopolitical clout based on threat matrix? Did AUS threaten to kiss China’s ass if US didn’t cave? Or were they told “Come get ya boy, we’ll make you look good.”

          This feels more like “This Is The Narrative (to which we’ve agreed, sotto voce) And We’re Sticking To It.”

        • ColdFusion says:

          Replying to Rayne, Australia is part of Five Eyes, and likely is in the best position to keep an eye on SE Asia, ‘ANZUS’ Treaty, etc.

        • Rayne says:

          Would a country which doesn’t break the top 10 in GDP be able to leverage that, though? Not like we don’t have a bunch of naval bases:

          US Naval Base Subic Bay
          Misawa Air Base
          Naval Air Facility Atsugi
          Misawa Air Base
          Commander Fleet Activities Okinawa
          Commander Fleet Activities Sasebo
          Commander Fleet Activities Yokosuka
          NCTAMS Yokosuka, Japan
          Busan Naval Base
          Jinhae Naval Base
          US Fleet Activities Sasebo
          Sembawang Naval Base
          Changi Naval Base
          Naval Base Guam
          Andersen Air Force Base
          NCTAMS Guam

          NCS Harold E. Holt is in Australia.

          This list doesn’t include other non-naval US military facilities in the PacRim.

        • klynn says:

          Here are two stories that may explain the “both sides lost” decision:

          “Adding a new layer to their already extensive intelligence cooperation, Australia and the United States will create a new Combined Intelligence Center–Australia within Australia’s Defense Intelligence Organization by 2024.”

          So maybe not a loss?

  7. Alan_OrbitalMechanic says:

    I am pretty much aligned with everyone else here who is not a big fan of Assange but even less of a fan of the government treatment of his case and much less so the Manning case. It has been such a long saga I have forgotten a number of details of what went down.

    I would be interested in the opinions of anyone here about the conduct of the Swedish prosecutor’s office in the whole affair. Were they in fact just trying to extract Assange from U.K. soil on a trumped-up pretext so that the U.S. could capture him? At the time I had the impression that their actions and timing seemed suspicious, but I forget the details. Any insights appreciated.

    • ColdFusion says:

      That’s what it sure seemed like at the time, they were refusing to do a video interview and telling him he must travel in-country for it.

  8. Clare Kelly says:

    Replying to Alan_OrbitalMechanic
    June 26, 2024 at 11:25 am

    I can’t speak to the merits of the Swedish case, but their extradition request expired while he was in the Ecuadorian Embassy in London.

  9. Brad Cole says:

    Questioning Australian leverage (even with a very squishy Labor regime) given current events seems uninformed. They are the linchpin of our SE Asia strategy, for a very long time now. The luminaries who hand held poor lil Julian all the way home reflects this. As well as the $500k charter fee they fronted him.
    It may be the last trip he takes unless it’s in Snowden’s footsteps.
    And he, as a nonresident, has no 1st Amendment rights.

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