WikiLeaks founder and editor Julian Assange has been living in the Ecuadorian Embassy in London since 2012, fearing extradition to the United States. After WikiLeaks released classified material leaked by Chelsea Manning, American authorities began investigating Assange for possible violations of the Espionage Act, the Computer Fraud and Abuse Act, and other crimes. In fact, CNN just reported in April that Justice Department officials were preparing charges to seek Assange's arrest.
Now, it looks like Ecuador will withdraw Assange's asylum protection and hand him over to British authorities. So, does that mean that an extradition and U.S. criminal charges are next?
Free Speech and Publishers
The Intercept's Glenn Greenwald reported that Ecuador's President Lenin Moreno was using last week's Global Disabilities Summit in London as cover for meeting with British officials to finalize the withdrawal of asylum. The withdrawal was allegedly prompted by talks with Spanish officials, who were "still seething over Assange's denunciation of human rights abuses perpetrated by Spain's central government against protesters marching for Catalonia independence." Whatever the reason for the removal of Assange's legal protections, what is the likelihood he would be prosecuted under American computer and espionage statutes? It depends on who you ask.
For the most part, publishers of classified material are immune from prosecution under the First Amendment. That immunity, however, disappears if publishers or their representatives were actively involved in the theft, hack, or leak that led to the release of classified information. As David McCraw, deputy general counsel for The New York Times, explained at a conference this week:
"I think the prosecution of him would be a very, very bad precedent for publishers ... From that incident, from everything I know, he's sort of in a classic publisher's position and I think the law would have a very hard time drawing a distinction between The New York Times and WikiLeaks."
One of Assange's attorneys, Barry Pollack, who was speaking on the same "The Law of Leaks" panel, expressed the same skepticism that his client would be charged when discussing the indictment of 12 Russian hackers involved in a separate WikiLeaks release. "If you read the indictment that just came out on Russians and you look at what Organization Number 1, which is clearly WikiLeaks, is alleged to have done in that indictment, it is doing exactly what The New York Times and The Washington Post do every day of the week," Pollack explained. "He [Assange] is communicating with a source, the source provides him with information, he publishes that information."
"Stepping Up Our Efforts"
Not everyone is so certain Assange will be protected by freedom of the press principles, most importantly the U.S. government. President Donald Trump has been no friend to the media, and although he encouraged Russians to hack and release Hillary Clinton's emails, his Justice Department doesn't appear any friendlier to leakers than his predecessor's.
"We are going to step up our effort and already are stepping up our efforts on all leaks," U.S. Attorney General Jeff Sessions said in April. "This is a matter that's gone beyond anything I'm aware of. We have professionals that have been in the security business of the United States for many years that are shocked by the number of leaks and some of them are quite serious. So yes, it is a priority. We've already begun to step up our efforts and whenever a case can be made, we will seek to put some people in jail."
Ultimately, whether Assange is charged in Wikileaks' involvement in publishing classified material will depend on his involvement in acquiring the information that was published. It may not be a popular prosecution, nor one that recognizes prior free speech principles, but that hasn't stopped this administration thus far.