Setbacks in the Case Against Julian Assange

by Kevin Jon Heller

It’s been a while since I checked in on the WikiLeaks kerfuffle, so now that the HILJ symposium is over — and I thought it was great — I wanted to flag this recent article in the Wall Street Journal, which reports that the government has found no evidence that WikiLeaks or Julian Assange solicited or conspired with Bradley Manning to steal government documents:

New findings suggest Pfc. Bradley Manning, the intelligence analyst accused of handing over the data to the WikiLeaks website, initiated the theft himself, officials said. That contrasts with the initial portrait provided by Defense Department officials of a young man taken advantage of by Mr. Assange.

Further denting the push by some government officials to prosecute Mr. Assange, the probes have found little to link the two men, though others affiliated with WikiLeaks have been tied to Pfc. Manning, officials said.

For the U.S. to bring its preferred case against Mr. Assange of inducing the leak, it would have to show that the WikiLeaks founder specifically encouraged Mr. Manning to hand over the documents, which included thousands of State Department cables, as well as low-level intelligence reports on the wars in Iraq and Afghanistan.

Federal Bureau of Investigation agents and Justice Department lawyers continue to gather evidence for a possible conspiracy charge against Mr. Assange, but that’s a harder case to make, government officials said. Such a charge would be based on contacts, which are more evident, between Pfc. Manning and lower-level WikiLeaks activists, and on Mr. Assange’s leadership of the group, these officials said.

[snip]

In Washington, military officials have been examining how the data was stolen and how the theft could have been prevented. Army investigators now believe Pfc. Manning decided to steal the documents and give them to WikiLeaks on his own, out of his own malice toward the military or the government, according to a senior U.S. official.

None of this comes as a surprise to anyone who has been following the story carefully.  The US government’s initial attempts to portray Manning “as a confused young person who was taken advantage of by Mr. Assange,” in the words of the WSJ article, were simply designed to demonize Assange; it was always irrelevant whether there was any evidence to support the government’s claim.

In the absence of criminal charges based on solicitation or conspiracy, the government can only prosecute Assange via the provisions of the Espionage Act that WikiLeaks’ media partners equally violated.  Fortunately, there seems to be a growing consensus — on both the left and right — that such a prosecution would be a terrible idea.  In that vein, I can’t recommend Jack Goldsmith’s recent editorial in the Washington Post, “Why the U.S. Shouldn’t Try Julian Assange,” highly enough.  Go read it!

http://opiniojuris.org/2011/02/12/setbacks-in-the-case-against-assange/

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