On April 11, Julian Assange was ejected from the Ecuadorian embassy in London where he had been taking refuge for seven years, and was promptly arrested by British authorities on charges of skipping bail. The same day, the United States unsealed an indictment against Assange for helping Chelsea Manning crack a password on a SIPRNet computer. Despite posting hundreds of thousands of classified files on the Internet, and attempting to interfere in the 2016 election, the U.S. Justice Department charged Assange with something you might not have expected.
Because nothing about Assange is ever easy to explain, here is a crash course in what has happened so far. First, the basics: Julian Assange is the founder of Wikileaks, an organization devoted to publishing leaked, classified government documents. Its most famous “get” was a trove of U.S. State Department diplomatic cables that were stolen by Manning, who was then a U.S. Army intelligence analyst serving in Iraq. After receiving those documents, Assange allegedly pressed Manning to keep digging. There were diamonds the size of baseballs to be found on SIPRNet! Manning, however, lacked access. Assange allegedly encouraged Manning to provide the “password hash” of a network administrator account. He (i.e. Assange) would have encryption experts at Wikileaks try to divine the original password from this hash.
Hashes are encrypted versions of passwords that are not designed for decryption. When you create a user account, the password you use is encrypted and stored on the system as a hash file. When you later try to log in to your account, the computer doesn’t compare the “plain English” password you just entered and the original password. Rather, it encrypts the password you’ve entered, and if the encryption matches the stored hash file, you are given access. If you enter a single incorrect letter or number when you enter your password, the encryption won’t match, and entry will be denied.
No evidence has been presented that the password was cracked successfully. In fact, Manning claims that she never knew for sure whether or not she was ever actually speaking with Assange (though she was pretty sure she was, and the Assange-potential certainly seemed to think he was Assange). But just because you are unsuccessful in robbing the bank doesn’t mean you won’t be arrested for bank robbery.
FIRST AMENDMENT ISSUES
So what was Assange—an Australian—doing in an Ecuadorian embassy in London, you ask? And why was he arrested for jumping bail? In 2010, he was accused of sexual assault in Sweden. Assange was, at the time, living temporarily in England. When Interpol issued a “Red Notice,” placing him on a sort of international Most Wanted list, he was eventually placed under arrest and was released on bail, forbidden from leaving the country. He spent the next eighteen months fighting extradition to Sweden, arguing that the whole thing was just a ploy to get him ultimately into U.S. custody. When his legal challenges to extradition at last failed and extradition was imminent, in 2012 he requested and was granted asylum in the Ecuadorian embassy in London. This was a pretty flagrant bail violation.
Ecuador has its reasons for kicking Assange from its embassy. Officially, Assange was just a lousy houseguest. Moreover, the meddling by Wikileaks in the U.S. election and just generally the organization’s habit of posting secrets from countries around the world caused Ecuador to take heat from the international community. No one will ever know what went on behind the scenes, but the upshot is that the moment Ecuador decided to fold, London police snatched up Assange and threw him in jail for violating his bail. The U.S. unsealed its indictment of Assange, and it was… pretty light, relatively speaking. Rather than throwing the Espionage Act at Assange, the U.S. charged him for his efforts to help Manning crack the SIPRNet password.
“The code section he is charged under carries a five-year statutory maximum penalty, and an accompanying fine,” says Phoenix S. Ayotte, federal criminal lawyer in Alexandria, VA. “By way of contrast, Chelsea Manning was charged with 22 crimes and received a 35-year sentence (later commuted to 7 years).”
That gray area in which Wikileaks resides played a role in the lesser charge. (Assange faced the death penalty had he been found in violation of the Espionage Act.) “Charging decisions are made based on a variety of factors,” says Ayotte. “Evidentiary foundation plays a large role, but First Amendment protected news gathering and publishing is not a crime. The government tries to demand accountability in national security leak cases, but must take into account the protected nature of some of these activities.”
FLEXIBILITY DOWN THE ROAD
It’s not that the U.S. government believed it would lose an espionage case against Assange, says Kel McClanahan, a lawyer who specializes in national security matters. Rather, they went with something both certain to stick, and vague enough to use as a blunt instrument in other leak cases down the road.
“If you look at it carefully,” he says, “if Assange is found guilty for providing support to a hacking endeavor under this statute, then the Wall Street Journal, in setting up a secure, anonymous drop box for whistleblowers to leak classified information, could also be prosecuted for that under that statute.” The Justice Department has avoided the issue of prosecuting a member of the press, while still giving itself a way to go after members of the press later—not for publishing information, but for giving leakers advice on how to get information out of the building.
“They went with the most innocuous sounding one on its face that still gives them flexibility down the road, if they win, to expand it,” says McClanahan.
Which means the fallout from the Assange case will be felt for a very long time. But before that happens, the U.S. must successfully extradite Assange, which might take years. And time might well be on his side. While waiting things out in the Ecuadorian embassy, Swedish authorities suspended their sexual assault investigation of Assange, and withdrew their arrest warrant. The Wikileaks founder will likely make the argument that his prosecution here is motivated by political reasons. In today’s hyper-polarized environment and the global political currency U.S. in decline, however things turn out for Assange, it will not be swift, and it will not be simple.