US conspiracy charges against WikiLeaks founder Julian Assange ‘politically motivated’

Long history of leaks in the US

Under cross-examination from Assange’s defence counsel, Mark Summers QC said there had been a long history in the US of whistleblowers leaking classified information to the media.

In written evidence, he said the Senate Intelligence Committee had counted 147 classified leaks to eight top US newspapers in just six months, and a study by a law professor found there had been “thousands upon thousands of national security-related leaks to the media”.

He told the court that although the US government had charged whistleblowers, it had never charged publishers because it feared running foul of the US constitution, which protects freedom of speech.

“The government intentionally paints Julian Assange’s activity in a very nefarious light. Soliciting information, gathering information is a standard thing that all journalists do. It is standard operating procedure. We teach it at conferences and journalism school,” he said.

Feldstein said he was sceptical of the US government’s claims that documents published by WikiLeaks disclosed the names of people and put them at risk.

He said over-classification of documents by the US government was “rampant” and that its principle concern was not national security, but embarrassment.

“It is easy to assert that there will be harm from national security stories that will be published. It is often impossible to refute. If you look at this at face value, you have to be sceptical,” he said.

When the New York Times began publishing excerpts of the Pentagon Papers, a top secret study of the Vietnam war, the solicitor general claimed it would cause irreparable harm to the security of the US.

He later admitted that he had “never seen any trace of a threat to the national security from the publication”.

Obama took decision not to prosecute Assange

Questioned by Edward Fitzgerald QC, representing Assange, Feldstein said that according to publicly available accounts, the Obama Administration was eager to file charges against Assange.

The justice department decided in 2013 that it could not prosecute Assange because it would set a precedent for the prosecution of journalists, and it was not clear that charging Assange with publishing classified information would succeed.

That changed under the Trump regime, when the administration wanted to put a “head on a pike” to send a message to journalists. Trump talked about putting reporters in jail and the CIA director Mike Pompeo attacked WikiLeaks as a hostile intelligence service.

US questions Feldstein’s impartiality

James Lewis QC, acting for the US, challenged Feldstein’s account, arguing that it was clear that a US grand jury continued its investigation into Assange through the Obama presidency and into the Trump presidency.

Feldstein said he knew from his experience as a reporter that grand juries continue investigating, but that the “proof is in the pudding”  – the Obama regime did not charge Assange.

Lewis questioned why Feldstein, as an impartial witness, had left out a full copy of an article from the Washington Post he referred to his report in a footnote.

The paper reported that officials had said a formal decision had not been made on charging Assange and that there was little possibility of bringing a case against him unless he had been implicated in criminal activity, other than releasing top secret documents. It also quoted a WikiLeaks spokesman who said he was sceptical that the US government was not going to prosecute WikiLeaks.

“The reason you might not have included it was it has an important section you might not want anyone else to read,” said Lewis.

Feldstein said he had made editorial decisions on what to include in his report. He said he had reported that the Obama administration had decided not to bring charges – not that the grand jury investigation was closed. 

“Professor, as an unbiased expert, would it not have been fair to put in your report that there was an ongoing investigation?” said Lewis.

The court heard that Assange’s US lawyer, Barry Pollack, had said the US had not informed him that they had closed the investigation and that WikiLeaks had tweeted that if Obama granted clemency to Assange, he would agree to go to a US prison.

Lewis repeatedly asked Feldstein why he had left that and other similar information out of his report.

“I do not see how these tweets about what Assange or WikiLeaks did really shed much light on it. What matters, and is more credible, are the people who are engaged on it,” he said.

Lewis pressed Feldstein whether, if Assange had conspired with Chelsea Manning to leak classified documents, putting her in breach of US law, Assange would also commit a crime.

“It would depend on the details,” said Feldstein.

The journalism historian said he did not agree that WikiLeaks should have published unredacted documents that could have potentially exposed individuals.

Lewis argued that a grand jury had found probable cause to bring charges against Assange, and that the charges were brought by independent prosecutors following a legal code.

“Are you saying that President Trump or the Attorney General directed them to bring charges irrespective of the evidence against Assange?” he asked. 

“We won’t know until history renders the motive,” replied Feldstein.

Journalists ‘conspire with sources every day’

Under re-examination by Mark Summers QC, also representing Assange, Feldstein said journalists solicit information from sources as an essential part of their work.

The New York Times worked closely with Daniel Ellsberg, the Pentagon Papers whistleblower, to publish secret government documents on the Vietnam war. At one point, a reporter had a key to the room where the documents were kept. 

“Journalists conspire with their sources every day. They cajole them to get what they need. They send them back to get more information. If that becomes conspiring, that is most of what journalism does,” he said.

Feldstein said it was telling that the US government had brought conspiracy charges against Assange, rather than prosecuting him under the US Intelligence Identities Protection Act for leaking government cables that disclosed names.

The fact that Assange was indicted on 17 charges of espionage, he said, suggested the US was trying to set a wider precedent for the press. 

The case continues.