7 questions about Julian Assange's arrest and what it means

WASHINGTON (Sinclair Broadcast Group) — WikiLeaks founder Julian Assange’s arrest in London Thursday raises a number of legal and logistical questions.

What happened today?

Thursday morning, the Ecuadorian ambassador invited British police into the country’s embassy in London to take Julian Assange into custody. In a statement, officials said Assange’s asylum protection was being terminated due to “discourteous and aggressive behavior.”

After Assange was arrested, the United States Justice Department unsealed an indictment accusing him of involvement in a 2010 breach of classified information at the Department of Defense.

Why was Assange in the Ecuadorian embassy?

Assange has been holed up in the embassy since claiming diplomatic asylum in 2012 while out on bail awaiting extradition to Sweden to face sexual assault allegations there. Swedish prosecutors closed that case in 2017, but Assange remained in hiding out of a fear that he would be extradited to the U.S. to face charges for publishing classified military and diplomatic documents.

Assange was found guilty Thursday of violating the terms of his bail.

What was Assange charged with?

Conspiracy to commit computer intrusion, which carries a penalty of up to five years in prison.

The charge is tied to the 2010 theft of classified documents by former Army intelligence analyst Chelsea Manning that were then uploaded to the internet by WikiLeaks. Prosecutors allege Assange conspired to help Manning crack a password stored on Department of Defense computers.

“Manning, who had access to the computers in connection with her duties as an intelligence analyst, was using the computers to download classified records to transmit to WikiLeaks,” the Department of Justice said in a press release. “Cracking the password would have allowed Manning to log on to the computers under a username that did not belong to her.”

It does not appear that Assange ever figured out the password. The indictment states he later sought more information from Manning related to it and said he had “no luck so far” in cracking it.

What was he not charged with?

Notably, the charge is not directly related to WikiLeaks disseminating classified material. In 2013, the Justice Department had concluded it could not prosecute WikiLeaks for releasing classified documents without also prosecuting mainstream media organizations that publish such documents.

The charge prosecutors settled on rests on Assange actively participating in and encouraging Manning’s efforts to obtain classified information illegally. This differs from a journalist passively receiving classified material from a source and reporting on it, which legal experts say would be protected by the First Amendment, and it sidesteps the complicated question of whether WikiLeaks is a news organization.

“If he does have press status, then it would not be appropriate to try him for mere publication of the emails,” said Claire Finkelstein, director of the Center for Ethics and the Rule of Law at Penn Law School, “but it would still be appropriate to try him if he was in any way involved with encouraging or facilitating the hacking... Freedom of the press doesn’t cover criminal activities.”

Former federal prosecutor Renato Mariotti said the charge filed against Assange poses no threat to First Amendment rights because it focuses on the hacking rather than the publication of the material.

“This indictment does not implicate press freedom in any way. It is a crime for any person, whether you sell hotdogs or write for newspapers, to agree to help someone hack into a protected computer server in the United States. I prosecuted non-journalists for that crime myself,” Mariotti tweeted.

Press freedom advocates are still raising concerns about the arrest, though.

“Any prosecution by the United States of Mr. Assange for Wikileaks’ publishing operations would be unprecedented and unconstitutional and would open the door to criminal investigations of other news organizations. Moreover, prosecuting a foreign publisher for violating U.S. secrecy laws would set an especially dangerous precedent for U.S. journalists, who routinely violate foreign secrecy laws to deliver information vital to the public's interest,” said Ben Wizner, director of the ACLU Speech, Privacy, and Technology Project, in a statement.

What happens next?

The U.S. is seeking extradition, and the U.K. will likely comply. Assange has a court appearance scheduled for May 2, but it is unclear how long the extradition process will take.

“He will be, in all likelihood, returned to the Eastern District of Virginia to stand trial there,” Finkelstein said.

What do Assange’s lawyers say?

They maintain that his actions were legal, and they plan to fight extradition.

“While the indictment against Julian Assange disclosed today charges a conspiracy to commit computer crimes, the factual allegations against Mr. Assange boil down to encouraging a source to provide him information and taking efforts to protect the identity of that source. Journalists around the world should be deeply troubled by these unprecedented criminal charges,” said Barry Pollack, Assange’s U.S.-based attorney, in a statement.

Preventing Assange from being sent to the U.S. to face prosecution will be difficult, though.

“If it were other countries involved, I think extradition might be easier to fight, but the U.K. and U.S. have such a firm working relationship around extradition,” Finkelstein said.

Why is this all happening now?

Assange’s relationship with his Ecuadorian hosts has been deteriorating since President Lenin Moreno took office in 2017. His internet access was suspended after he publicly backed the Catalan independence movement in Spain, and he was only allowed back online in 2018 after agreeing not to interfere in internal affairs of other countries, as well as to pay his medical bills, clean up after himself, and take care of his cat.

In February 2019, one of Moreno’s political opponents received leaked documents from an anonymous source that pointed to possible corruption in his administration. A month later, on March 28, WikiLeaks tweeted a link to the website hosting the hacked documents, but it denied involvement in obtaining or distributing them.

According to Reuters, Moreno said in a radio interview Tuesday Assange had violated his agreement with the government “too many times,” seemingly referring to the leaked documents, which contained personal photos of his family.

“It is not that he cannot speak and express himself freely, but he cannot lie, nor much less hack private accounts or phones,” Moreno said.

Former Ecuadorian President Rafael Correa, who granted Assange asylum in 2012, called the decision to turn him over to British police “cowardly” and warned it is an act that will “never be forgotten by all of humanity.”

“It’s not clear [Ecuador] should ever have been shielding him in the first place, but they were willing to do that, and I guess their patience with playing that role ran out,” Finkelstein said.