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. Follow him on Twitter @aurbelis. The views expressed in this commentary are his own. View more opinion articles on CNN.
The Department of Justice’s superseding indictment of Julian Assange should be seen for what it is: legally idiotic, politically shrewd, and downright scary for its implications.
As to legal idiocy, the additional 17 counts do nothing to increase the chances that the UK judiciary will extradite Assange to the United States to stand trial.
Indeed, the additional counts appear to be designed to ensure that Assange is not extradited to the United States.
I argued in a separate CNN Opinion article that the initial indictment – which pertained to a single hacking charge – was deliberately drafted for the charge to appear to be more about the manner of obtaining classified materials and less about the prosecution of a journalist.
The new charges, however, relate to seeking, obtaining, and publishing embarrassing US government secrets, making the superseding indictment much more overtly political. The US-UK extradition treaty in force is quite clear about how our respective courts must handle these situations: “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”
What we can conclude is that either this is a stupendously idiotic legal maneuver or other motivations are at play.
Those other motivations happen to be politically shrewd. Consider for a moment that an Assange trial – a legal proceeding that would no doubt capture the world’s attention – could be disastrous for the Trump administration.
Using the courtroom as a soapbox, Assange’s defense would be rooted in the First Amendment’s protection of the freedom of the press. That defense would entail testimony and documentary evidence about Assange’s journalistic bona fides that would go far outside the scope of the alleged criminal conspiracy with Chelsea Manning, and it could very well reach Trump and his inner circle.
Who could forget Trump’s numerous statements about WikiLeaks on the campaign trail in 2016: i.e., he “love[s] WikLeaks,” that WikiLeaks is “amazing,” that “WikiLeaks is like a treasure trove,” and my favorite, “Boy, I love reading those WikiLeaks.”
Consider that Donald Trump, Jr. was in contact with WikiLeaks a few short months before the 2016 election and that WikiLeaks provided Don Jr. with a hacked password to an unlaunched anti-Trump website so that he could sneak a peek at its content.
Add that to the fact that, according to special counsel prosecutors, longtime Trump associate Roger Stone, whom the special counsel already indicted for obstruction, witness tampering, and making false statements, was in 2016 communicating with both the “Guccifer 2.0” – the hacker persona (operated by Russian military intelligence) who has claimed responsibility for hacking the Democratic National Convention – and WikiLeaks about the release of hacked DNC e-mails.
Consider, finally, that there is likely a great deal more that could be revealed during Assange’s trial, and – critically – that this trial would take center stage during 2020, and you can begin to see why such a fiasco may not be in the best interest of the Trump administration. Seen in this light, the damage to the freedom of the press may be the foreseeable but unintentional collateral damage of squashing the chances of an Assange trial.
However, I do not think that is the case. This indictment is a continuation of the Trump administration’s assault on the freedom of the press. We have been dealing with a President who since his inauguration has been at war with the media, at war with intelligence community, at war with the FBI, at war with any person or institution that can effectively and credibly discredit the daily lies and abject falsehoods that originate from the White House. What terrifies me most is that this is a natural progression of the Trump administration’s attack life cycle: first the administration sought to undermine the credibility of the press, and now it is assaulting the very ability of journalists to cover the news.
While thwarting the Assange trial may be in the President’s best interest, the Assange indictment must be read as a threat to journalism because it is a threat to journalists. Whether you believe Assange to be a real journalist or not is of little moment. The actions for which Assange has now been indicted, soliciting a source, obtaining classified materials from that source, and publishing those materials for the world to see, are the very bread and butter of journalism itself.
There is good reason why the Espionage Act, under which Assange is now charged, made no exception for the actions of journalists: because of the First Amendment’s absolute guarantee of the freedom of the press, it never needed one.
What is more, the President, the attorney general, and all of the US attorneys who signed off on this indictment, took an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic … .” The pursuit of this indictment is an abdication of that solemn obligation.
Setting off a long period of civil war, it is reported that as Julius Caesar led his army across the Rubicon River in 49 B.C. he uttered the phrase, “Alea iacta est,” which translates to “The die is cast.”
That river and this phrase have become synonymous with a point of no return. The Assange indictment, whether it results in prosecution or not, has crossed a legal Rubicon that our founding fathers warned should never even be approached.
The die is cast. The fight is on. What is at stake is journalism as we know it.