Preet Bharara:

From Cafe and the Vox Media Podcast Network this is Stay Tuned in Brief. I’m Preet Bharara. Today we’re going to talk about a controversial figure who’s back in the news. Julian Assange. In 2019, the Australian born founder of WikiLeaks was charged by federal prosecutors in the US with 18 counts relating to the release of vast troves of classified US military records and diplomatic cables. Assange was arrested in London and he has now been held for three and a half years in a high security British prison. He faces extradition to the US and a potential lengthy sentence, but on Monday, the New York Times and four European news organizations called on the US to drop its charges against Assange. The newspapers penned a joint letter that ended with the phrase publishing is not a crime. To talk about all this my guest this week is Charlie Savage. He’s a Washington correspondent for the New York Times and a winner of the Pulitzer Prize. He’s been covering national security issues and the Assange story for a very long time. Charlie, welcome to the show.

Charlie Savage:

Thanks for having me.

Preet Bharara:

It’s good to have you. I’m a very big fan of your work going back many years as you know. Can we start with something off the bat to clarify? So the paper for which you work and other news outlets sent this letter saying the Assange charges should be dropped. Am I correct that neither you nor anyone else in the news division had any role or say in the putting forward of that letter?

Charlie Savage:

That’s correct. The publisher of the New York Times A.G. Sulzberger in consultation with the legal department in particular, I believe David McCraw, a newsroom lawyer, a lawyer for the newsroom, but not part of the newsroom, decided that the Times institutionally would sign onto this letter along with the four European news outlets. But no one in the newsroom played any role in it. I did not, and all of my bosses leading up to the executive editor, Joe Kahn, did not.

Preet Bharara:

Is it a little odd to write about your own paper?

Charlie Savage:

It’s very odd. It’s very awkward.

Preet Bharara:

Is it?

Charlie Savage:

It’s not the first time. I covered the leak investigation that involved my colleague and friend Jim Risen. for example. It happens from time to time and you just have to dissociate and just tell it straight.

Preet Bharara:

So before we get to the merits or the debate and controversy around the letter, can you remind folks what first we’ll go sort of backwards, what Julian Assange was charged with in 2019 and then we’ll talk about what he did and we’ll talk about this letter.

Charlie Savage:

So everything about the Julian Assange case is complicated. I’ve said that it’s sort of barnacled with tangents and every other sentence you write about him could be glossed with a footnote of explanatory extras. There was a criminal complaint filed against him at the very end of 2017 under seal, and then he was actually indicted by a grand jury in the spring of 2018 on a narrow charge of violating a hacking related offense for offering to help Chelsea Manning cover her tracks on a classified military network. That was unsealed in 2019 when he was pulled out of the Ecuadorian embassy and arrested.

And sometime after that, the Justice Department expanded its indictment of him, filed a superseding indictment that brought the charges that are at issue in this letter, a series of espionage act charges not related to a hacking conspiracy, but for the act of soliciting, acquiring, retaining, and then publishing classified information, national security information. And then there was a second superseding indictment a little time after that, which expanded the hacking conspiracy charge with some additional allegations of a broader over time effort to convince people to hack government networks and send information of WikiLeaks. So there’s really two sets of allegations against him, only one of which have implications for journalism.

Preet Bharara:

So to be clear further to what you just said, the New York Times and the other folks who put this letter forward are asking for the journalism related charges, the espionage related charges to be dropped, not the hacking charges.

Charlie Savage:

That’s right. The letter notably does not call on the US government to drop the hacking related charge and so to say they’re not calling for the case in its entirety to be dropped, just the ones that could create a precedent that treats the act of soliciting and publishing information the government has treated a secret as a criminal act.

Preet Bharara:

Okay. So to be clear, Julian Assange did not himself steal or hack government servers in any way to get the information that he published on WikiLeaks. It was given to him. Correct?

Charlie Savage:

So the issue that here is the information that WikiLeaks was publishing in 2010 and 2011 archives of US State Department cables and US military documents related to the wars in Afghanistan and Iraq and dossiers about Guantanamo Bay detainees. This set of large archives of secret US government documents. All of those were provided to WikiLeaks by Chelsea Manning, a former army intelligence analyst who had downloaded them from SuperNet, a classified computer network from a forward operating base in Iraq where she was stationed and decided to send them to WikiLeaks. So this is not about-

Preet Bharara:

So it’s the act of publishing-

Charlie Savage:

…stuff that happened. So not only that, this is not about the emails, the democratic emails that Russia hacked and provided and that WikiLeaks published in 2016. It’s not about the Vault 7 CIA hacking tools from 2017. This is about the stuff that happened long ago, 2010 basically, that Chelsea Manning leaks.

Preet Bharara:

Can you explain, Charlie, if you could, why it would be that the conduct at the core of the matter here occurred in 2010 and you didn’t get charges until 2018 and 2019?

Charlie Savage:

So the Obama administration wrestled with the question of whether to charge Assange with some kind of crime related to the Manning leaks. They certainly charged Manning who was tried at a court martial and sentenced to 35 years in prison. The longest sentence ever for a leaker in the United States, in 2013 and then was had most of that sentence commuted by Obama on his way out the door in 2017. But they did not charge Assange despite looking very seriously at it. And a big part of the reason why they did not was that his actions in the Manning leak period were legally and distinguishable from the New York Times or other traditional news outlets that also-

Preet Bharara:

And they would have to charge you Charlie?

Charlie Savage:

I don’t know if they would have to, but they-

Preet Bharara:

But to be consistent.

Charlie Savage:

They would be crossing a Rubicon of saying that these things that is part of ordinary traditional investigative journalism in the national security area, asking for classified information, publishing it and when it’s decided that it’s in the public interest to know these information can and should be treated as a crime in the United States. And that has never happened in the United States. There is no precedent for charging a publisher of information with a crime for that act. So it would be a profound first amendment change.

Preet Bharara:

Right. So then let me ask, did the Justice Department when Trump was president, did they take some other course to get around this issue or did they just not care?

Charlie Savage:

So then the Trump admission comes along, obviously assigned himself, of who he is and what he’s been up to and has evolved over time the Russia has happened and so forth. The 2016 election has happened. Mike Pompeo’s calling WikiLeaks a non-state intelligence service, and then they decide that they’re going to file this charge, seal the charge at the time on just on this narrow hacking charge. So they’re still sidestepping the journalism issues and it appears to be that the reason is they were afraid he would leave the embassy and they wanted a basis for asking whatever country he popped up in to grab him if that’s what happened. And they needed some kind of charge on file to be the basis of an international arrest warrant which would then give them time to figure out what to do. And then they continue to deliberate and they decide they really do want to prosecute him.

That’s probably around the spring of 2018 when they go to the grand jury and get a indictment, which is also under seal, and it’s really only after 2019. That was under the Jeff Sessions year in the Justice Department. It’s really in 2019 but now Bill Barr is Attorney General. He’s already been dragged out of the embassy. He’s fighting extradition to the United States on this narrow hacking charge and they decide to go for it and do the Espionage Act charges for these journalistic style actions of soliciting and obtaining information. So that is not an administration or an attorney general who is particularly friendly to the press. Whether that played a role or not, we don’t know, but it certainly lines up with that being a sort of change in attitude towards this extraordinary charge.

Preet Bharara:

What’s your best understanding of the harm that was done either to particular people or to US intelligence gathering capabilities based on what was published in WikiLeaks?

Charlie Savage:

Again, you have to separate other things that WikiLeaks-

Preet Bharara:

Sure. I’m sorry. The things that were published in WikiLeaks that are at the core of the criminal matter we’re discussing.

Charlie Savage:

Because the Vault 7 stuff that WikiLeaks publishes in 2017 may have had a big effect on US intelligence gathering capabilities. I’m not aware of much serious allegation that the Manning leaks, none of which was classified above the merely secret level. No top secret stuff.

Preet Bharara:

You say merely secret like it’s nothing Charlie.

Charlie Savage:

Well, it’s not top secret. It’s not compartmented information and it’s had anything to do with the intelligence gathering capabilities. There was a serious controversy when the cables became public in an unredacted form and they had the names of people in dangerous places who had helped the United States, diplomats writing back to Washington, we’re talking to so and so, a dissident leader and he says this and that, therefore putting those people’s lives in danger. When Chelsea Manning was prosecuted, military prosecutors did not say anyone had actually been killed as a result of their identities being in those unredacted cables. But US officials have said that the government expended a lot of resources identifying those people and getting them out of danger in order to prevent that harm from happening.

Preet Bharara:

But for an expenditure of resources, maybe people would’ve come to harm, that’s the government’s position.

Charlie Savage:

That’s right.

Preet Bharara:

Is there something about the fact that Chelsea Manning ultimately had much of her sentence commuted? Is there something about that that affects you think reasonably the propriety of the charge that lingers against Julian Assange or not?

Charlie Savage:

Affects the propriety in what respect?

Preet Bharara:

Well, as a matter of fairness or equity, if part of what’s going on here is that Chelsea Manning received ultimately at the hands of Obama lighter treatment than the court meeted out based on taking certain kinds of information. So Julian Assange, I don’t have a view, but Julian Assange, who’s one step removed from that be treated more or less harshly or do the two things not matter or don’t connect with each other at all?

Charlie Savage:

Well, two things. First of all, Manning still served a significant amount of time from the period of her arrest to when she gets out in the middle of 2017. Longer than anyone else ever in American history for the act of providing information for public dissemination without authorization. So that’s not to make light of it, even her commuted sentence was still a serious amount of prison time. But also I don’t think that they are in the same category. Chelsea Manning was a government official with a security clearance who decided to make information public that she thought the public should know about. And in this set of sequences, Julian Assange is the publisher of information who received that data and made it available to the public. One’s a source, one’s a publisher. So-

Preet Bharara:

Less culpable in your view?

Charlie Savage:

I just don’t even see, it’s an apples and oranges scenario. Yeah.

Preet Bharara:

Why now? Why write this letter, the New York Times and multiple European news organizations put forward? Why now? And are they aware? Is the Times aware that generally speaking, the Justice Department doesn’t take its cues from the press?

Charlie Savage:

I think they’re not under much illusion about that.

Preet Bharara:

Okay.

Charlie Savage:

So again, because the New York Times newsroom where I worked did not play a role in this, I knew it was coming shortly before it came out because I was asked to write an article about it. So I don’t have a great window into its origins. My impression is that the driving force was some of the European outlets and then the Times decided to institutionally to join. Why now on the small terms, seems to be that we’re at the anniversary of the same day of when the cables were started to be written about. Why now in the large sense, why 2022 instead of 2021 or 2019? I don’t know.

Preet Bharara:

Based on your reporting and your sources, do you think that there is any sympathy for this argument, whether or not it’s coming from the New York Times? My joke aside that there is some thought in this particular Justice Department about changing course on Assange or not?

Charlie Savage:

So Merrick Garland does seem to be attuned to press freedom’s issues. When he was an appeals court judge wrote about the importance of the free flow of information in a democratic society and protecting the ability of the free press to do its job and perform its function in a representative democracy. And he has taken pretty significant steps to reform leak investigation rules in the Justice Department very recently formalizing a policy in regulation, a policy he had instituted a year ago after it came out that the Barr era Trump Justice Department had secretly gone after Communications Data of Washington Post, New York Times, and CNN reporters for leak investigations. So under his new rules, it is now investigators cannot use compulsory legal process, search warrants, court orders, et cetera to get communications records of reporters or to force them to testify about their sources or seize their notes and so forth. Just flatly not allowed, not a balancing test. That’s a serious reform.

Preet Bharara:

With some very limited exceptions.

Charlie Savage:

That’s right. With some very, yeah [inaudible 00:15:16].

Preet Bharara:

But much more narrow than they used to be.

Charlie Savage:

And in most cases, no longer a balance of risks, which a decision maker can just always decide that the test is met in this case.

Preet Bharara:

And one of those exemptions by, am I correct, is that the Espionage Act is no longer an exemption such that that indicates maybe something in your mind about what Merrick Garland thinks about this case.

Charlie Savage:

That’s sort of more in the weeds of what I’m getting at, which is just if there’s any attorney general who might be open to this, it might be Merrick Garland that said, I have not seen or heard him say anything that suggests they are going to pull back unilaterally at this point on the Espionage Act charges and it could be that they’re waiting for the extradition process to happen and then they can try to negotiate a plea with him and maybe something would be dropped as part of that. Or maybe they’re just not interested at all. And this is just the press wishing something were not the case that is the case.

Preet Bharara:

Well, but there are a substantial number of people in both parties are there not who believe that the case against Assange is meritorious and righteous and should go forward.

Charlie Savage:

Assange is not a popular person. The sort of national security conservatives clearly don’t like him. People who were Obama administration veterans didn’t like him at the time because he was messing them up by publishing this stuff. Initially in this Manning leak era, he was treated as an icon I think among elements of the left, the sort of anti-war left and then transparency advocates across the civil libertarian left to libertarian right, liked him a lot. Because of his own morphing over time and in particular his role in publishing the Democratic emails that Russia had hacked in its covid operation to help Trump win the 2016 election. A lot of his former admirers on the left now just want nothing to do with him and think he’s a terrible person. And one of the things you see when you write about this case with all of its complexities is people look past the fact that this is not about the 2016 emails.

This is not about is he a journalist or not a journalist, what a status should be, what name should be or label should be affixed to him or even at different points in time as his behavior changes, it’s they just hate him and they want him to rot in jail and that you just write anything on Twitter and you get a thousand emails like that. And so the complexity of whether he’s a good person or a bad person, whether you think he’s a journalist or was at one point or not, is sort of irrelevant to the question of whether the actions that were the Justice Department is treating as a crime here. The act of soliciting and publishing information, the government has deemed secret can or should be treated as a crime in the United States for the first time, thereby establishing a precedent that those actions can be treated as crimes in the United States in the chilling effect at best that would have on investigative journalism going forward. It’s very easy to get lost in the shuffle.

Preet Bharara:

Should we read anything into the fact that the only American periodical news outlet that joined this letter was the New York Times, not the Washington Post or the Wall Street Journal or any others? Anything to read into that or not?

Charlie Savage:

No. I think these five outlets, DER SPIEGEL, the Guardian, El País, Le Monde, and the New York Times were the ones on this letter because they were the original ones that were working with WikiLeaks in 2010.

Preet Bharara:

Charlie Savage, I will tell you one thing that you probably don’t know, and that is that you have my favorite last name of any reporter at the New York Times. I think a Washington correspondent, a national security reporter whose last name is Savage, is just excellent.

Charlie Savage:

Thank you.

Preet Bharara:

For more analysis of legal and political issues making the headlines become a member of the Cafe Insider. Members, get access to exclusive content including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @PreetBharara with the hashtag askpreet. Or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET or you can send an email to letters@cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Weiner. And the cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Namata Shaw, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay tuned.