Does the Assange case pose a threat to press freedoms?_00062829.jpg
Does the Assange case pose a threat to press freedoms?
09:15 - Source: CNN

Editor’s Note: Alexander J. Urbelis is a lawyer and self-described hacker with more than 20 years’ experience with information security. He is currently a partner in the Blackstone Law Group, CEO of a separate information security consultancy, and co-host of hacker-focused radio show and podcast “Off The Hook.” He has worked as a graduate fellow in the Office of General Counsel of the Central Intelligence Agency and as a law clerk at the US Court of Appeals for the Armed Forces. He was also information security counsel and chief compliance officer of one of the world’s largest luxury conglomerates. Follow him on Twitter @aurbelis. The views expressed in this commentary are his own. View more opinion articles on CNN.

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One week after WikiLeaks founder Julian Assange was ejected from the Ecuadorian Embassy in London and arrested by British police in connection with a provisional extradition request from the United States on a charge of conspiracy to commit computer intrusion, the long-awaited Mueller report was released. Looking at Assange’s indictment and the Mueller report together – both of which deal with incidents of hacking – one question springs to mind: Why was Assange indicted while no one from the Trump campaign faces similar legal jeopardy for welcoming Russian election interference?

Alexander Urbelis

The answer to this question raises issues of prosecutorial discretion and can give us insight into the true nature of the charge against Assange.

At just six pages, the Assange indictment stands in stark contrast to the Mueller report, which is 448 pages. There is good reason for the scant detail in the Assange indictment – prosecutors focused on the alleged criminal conspiracy between Assange and former Army intelligence specialist Chelsea Manning to obtain secret government documents in 2010 instead of WikiLeaks’ role in publishing emails that Russia stole as part of its interference in the 2016 election. In doing so, the case against Assange appears less about prosecuting a journalist for publishing sensitive materials and more about the manner in which Assange obtained classified information.

Assange was indicted on one count of conspiracy to commit computer intrusion, although many of the details used to build the case against him are tenuous compared to what the Mueller report states Trump campaign officials did. In the indictment against Assange, there are three principal components of the alleged criminal conspiracy:

1. That Assange “encouraged Manning to provide information and records from departments and agencies of the United States”

2. That Assange took measures to conceal Manning as the source of the classified records

3. That Assange “agreed to assist Manning in cracking a password stored on United States Department of Defense computers”

From a journalistic perspective, it is troubling that prosecutors would build a case against Assange for encouraging a source to provide information. Journalists often encourage sources to provide information by appealing to the power of the truth to hold powerful institutions to account. Doing so should not give rise to criminal liability.

When it comes to Assange’s attempts to conceal Manning’s identity, examining their chat logs reveal how thin these alleged acts are. According to the lawsuit, Assange informed Manning that there was a username located in a batch of Guantanamo Bay-related documents she provided and suggested removing it. Prosecutors allege that to protect her identity, Manning, in turn, stated “any username should probably be filtered, period.”

The protection of sources and methods is also critical in journalism. Had Assange published the usernames Manning used to access government computers, that is evidence the US Army could have used to track her down, putting her directly in the crosshairs of a US national security investigation.

Ultimately, the third allegation of Assange’s indictment is what I believe to be the crux of the matter – that Assange agreed to assist Manning with cracking a US government password. Again, however, the chat logs provide much needed context.

In short, Manning queried whether Assange was any good at cracking passwords cryptographically stored in a specific manner. Assange replied that he had tools that could allow him to crack the password, and told Manning he passed the information on to a third party who would presumably attempt to do so. Two days later, Assange asked Manning for further clues about the password because he had “no luck so far.”

In those few lines, according to the indictment, Assange went from being a journalist to being an actor in a criminal conspiracy to exfiltrate classified defense information. And I believe there is merit to this argument: Cracking a password belonging to a US government system would constitute an overt act in furtherance of such a conspiracy. The evidence at trial will bear out whether Assange was sincere with his offer to help Manning crack a password and whether he acted in concert with her.

Such scant facts, however, pale in comparison to the details in the Mueller report about the Trump campaign welcoming Russian interference and assistance, contacting Russian operatives and providing internal polling data, and amplifying social media created by Russian trolls.

We all watched Trump invite Russia to aid his campaign when he exclaimed in July 2016: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”

We know from the Mueller report that “(w)ithin approximately five hours of Trump’s statement, GRU officers targeted for the first time (Hillary) Clinton’s personal office.” It’s important to note “the investigation did not find evidence of earlier GRU attempts to compromise accounts hosted on this domain,” the Mueller report states.

While Trump later claimed he was joking, he seemed intent on tracking down the emails and asked people affiliated with his campaign to locate them. Michael Flynn contacted Senate staffer Barbara Ledeen, who had already drafted a plan months before, proposing to check in with intelligence sources with links to foreign services.

We also know from the Mueller report that the Internet Research Agency created divisive social media posts on topics such as voter fraud. Trump associates including Flynn, Kellyanne Conway, Donald Trump Jr., Eric Trump and others amplified these Russian posts with their own accounts.

George Papadopoulos relayed the news that Putin wanted to meet with candidate Trump, who was interested in and receptive to the idea, according to Papadopoulos and a campaign adviser who spoke to investigators.

Thanks to the Mueller report we also know that campaign chairman Paul Manafort and his deputy, Rick Gates, provided internal polling information to a Russian source, despite Gates’ suspicion, which he shared with Manafort, that this Russian was a spy.

This “ends justifies the means” approach was known before the Mueller report was released. Donald Trump Jr. accepted the infamous June 2016 Trump Tower meeting with a Russian lawyer on the premise that he would be offered damaging information on Clinton. An email to Trump Jr. explicitly stated the proposed dirt on Clinton was “part of Russia and its government’s support for Mr. Trump.” Trump Jr., as we all know, replied, “If it’s what you say I love it.”

These anecdotes are far from an exhaustive list of activities that the Mueller report details, indicating that high- and low-ranking members of the Trump campaign were receptive to the assistance of a hostile nation to gain a tactical advantage in the election.

Why did Mueller determine not to indict any of these individuals on charges of conspiracy? If the Department of Justice indicted Assange for a few lines of text in a chat log about a password that he attempted to crack, what is missing with regard to the Trump campaign? The answer is simple but contentious: Mueller found no conspiracy or coordination – tacit or express – between the Trump campaign and the Russian government in election interference.

Both Assange’s case and Mueller’s investigation look at incidents of hacking. Whereas Assange took the initiative to try to crack a password, Mueller found no Trump campaign involvement in the hacking of the Democratic National Committee’s systems. This should come as no surprise: The Trump campaign was not equipped with cybersecurity experts and was not competent to engage in such criminal acts.

There is, however, a disconnect. According to the indictment, Assange’s conspiracy included encouraging Manning to provide information and then helping to conceal Manning’s identity as the source of the classified records.

What, then, are we to make of Trump’s exhortation to Russia, and the mendacity of Trump campaign officials who lied – either to Mueller or to Congress – about their involvement with Russian operatives to such an extent that it impaired the special counsel’s investigation? Flynn and Papadopoulos pleaded guilty to lying to the FBI, while Michael Cohen pleaded guilty to lying to Congress.

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    What we can conclude from this comparison is that the Assange indictment is not really about concealing Manning’s identity or Assange’s encouragement of Manning, but the simple and singular action he agreed to take on Manning’s behalf: assistance with a cracking password. Our only other option would be to conclude that the Department of Justice is applying criminal conspiracy laws unequally: i.e., harshly toward Assange and leniently toward the Trump campaign.

    I choose to believe the former and look forward to Assange’s trial.