"I am Assange!" Daniel Ellsberg, Other Allies Ask US to Prosecute Them, Too

Julian Assange is having a Spartacus moment.

Veteran Pentagon whistleblower Daniel Ellsberg and government transparency advocate John Young are challenging the U.S. Department of Justice to prosecute them alongside the Wikileaks founder, saying they broke the law just as he did, by publishing or possessing a trove of classified documents.

Their calls underline the concerns of First Amendment advocates that prosecuting Assange could open the door to cases against any news organization that publishes government secrets.

In interviews with Newsweek, the two also shed further light on how the complete and unredacted archive of a quarter million classified State Department intelligence reports known as Cablegate, and leaked by junior intelligence analyst Chelsea Manning, came to be published online in September 2011.

"I actually published the unredacted documents before Wikileaks did," said Young, an 86-year old New York City-based architect who has since 1996 curated the website Cryptome.org, which publishes classified documents and other intelligence datasets. "If they want to punish someone, they should come at me."

Young said Assange was singled out because of his higher public profile to dissuade others from publishing classified information.

"They attack the icons ... They're trying to send a message to others who might choose to emulate what he's done. So it's selective prosecution as a warning to others," said Young, who helped Assange set up the Wikileaks.org website in 2006, but parted ways with him shortly after.

Assange has been fighting extradition from a British jail for more than three years. He faces 17 charges under the Espionage Act for obtaining and disclosing national defense information and a single Computer Fraud and Abuse Act charge. If convicted on all charges, he could face a maximum sentence of 175 years in jail.

Young has written to the judge in the case and the Justice Department, asking to be added to the indictment — an echo of the iconic 1960 film Spartacus, in which rebel Roman slaves in turn declare "I am Spartacus" as they refuse to renounce their leader. Young's letter to the judge is now part of the official docket of the case.

Ellsberg told Newsweek that Assange had given him a copy of all of the Manning material as "a backup," in case the Australian was arrested. "I never published them," he said, "but just by possessing it, by wilfully retaining it, and willfully failing to deliver it to a proper authority, I broke the Espionage Act."

"I invite the Justice Department to indict me because I welcome the chance to challenge the Espionage Act in court," the 91 year old said from his California home. "It is in effect a British-style Official Secrets Act" – a broad prohibition on the communication or possession of sensitive government documents – which is "totally unconstitutional, a clear violation of the First Amendment," he said.

The Department of Justice declined to comment.

The calls from Young and Ellsberg come on the heels of an appeal to drop the case against Assange from five media organizations. In an unprecedented months-long collaboration between journalistic rivals, the New York Times, The Guardian, Der Spiegel, Le Monde and El Pais worked with Assange and Wikileaks through 2010 to publish dozens of news stories based on the material.

In addition to the Cablegate archive, there were two large databases of tens of thousands of raw incident reports from U.S. troops in Iraq and Afghanistan. The Afghan War Logs and the Iraq War Logs revealed prima facie breaches of international law by U.S. and NATO forces. Manning also included a set of files about Guantanamo detainees and video from a U.S. helicopter gunship as it machine-gunned two Reuters journalists in Iraq, apparently believing them to be insurgents.

'Collateral Murder' and 'Willy Pete'

Released April 5, 2010, the "Collateral Murder" video became a global cause celebre. Despite the U.S. military saying that the troops' actions were legal, critics said their banter robbed American forces of any remaining moral high ground in their occupation of Iraq.

In her recent memoir, Manning wrote for the first time since her trial more than a decade ago about a second video she also passed to WikiLeaks. It shows a 2009 U.S. air strike in Garani, Afghanistan, that killed as many as 147 Afghan civilians, mostly women and children. Although the strike was reported at the time, Manning said that the video, which has never been published, was "indelible and awful" as women, children and old people died as a result of bombardment from munitions containing white phosphorous.

Ellsberg said he had not previously known that the archive included that video. He said he would have published it if he had known to highlight what he called the extreme cruelty of white phosphorus munitions, known by U.S. troops as "Willy Pete", which under international law are not supposed to be used when they might impact civilians.

"It burns to the bone," Ellsberg said, recalling horrific wounds from its use against hamlets in Vietnam.

The Espionage Act: A slippery slope?

Ellsberg, then an analyst at the RAND Corp., was prosecuted under the Espionage Act 50 years ago, for leaking a secret history of the war in Vietnam — which came to be known as the Pentagon Papers — to the New York Times and other media outlets in 1971. The case against him ultimately collapsed in 1973 amid revelations of illegal wiretapping, burglary and the destruction of evidence by the Nixon-era FBI.

But the law has been successfully used against leakers several times since, and previous administrations have weighed using it against journalists, Ellsberg said. That included the Obama administration, which eventually decided against prosecuting Assange in 2013.

It was the Trump administration that reopened the case against Assange, who had also since helped publish emails Russian intelligence had hacked from Democratic National Committee leaders and embarrassed the CIA by publishing "Vault Seven" – a set of documents about the agency's most secret hacking tools.

"I was the first whistleblower prosecuted under the Espionage Act, and now he [Assange] has become the first [Espionage Act] prosecution for publishing," Ellsberg said.

"For 50 years I have been trying to warn journalists that the plain language of the Espionage Act puts a target on their back," Ellsberg said, stating that the law criminalizes the "transmission" of national defense information to anyone not authorized to receive it, which clearly includes publication by the news media.

Assange's critics call such fears overblown. Attorney Mark Zaid has for more than two decades represented intelligence professionals, including whistleblowers, in actions against their agencies.

"Will this be a slippery slope?" asked Zaid at a recent panel discussion staged by the Hayden Center for Intelligence at George Mason University. "Well, we'll have to wait and see if there's going to be a second, third or fourth or fifth type of indictment against any journalists." He said that Attorney General Merrick Garland had recently put in place policy that makes it harder for the DoJ to pursue journalists.

Assange's defenders say Young's claim to have published the unredacted archive before the WikiLeaks founder raises serious questions as to why only Assange is being prosecuted.

A series of events

In sworn testimony to the extradition proceedings this year in London, Young said he published the Cablegate archive on September 1, 2011, at least a whole day before WikiLeaks.

"Although I don't think I was aware of it at the time," Young said, "while I was publishing the documents, Assange was trying to reach the State Department" to warn them that the unredacted archive would likely soon be released online.

Young said he had the passphrase to decrypt the archive because it had been published by Guardian journalist David Leigh in his book in February 2011.

Assange placed the archive online in August 2010, encrypted with a strong passphrase, so that Leigh could get access to the material. Once downloaded and unencrypted, Assange told him, the archive was not to be placed on any device connected to the internet.

Leigh told Newsweek in a Twitter message exchange that Assange had told him the passphrase "was temporary and would expire."

"We never expected any issues," from the publication of the passphrase, he said.

But in fact the passphrase was, by its very nature, permanent, explained cryptography expert Christian Grothoff in written testimony for the defense during the extradition proceedings.

"The key required for decryption is fixed at the time of encryption. Once the ciphertext has been generated, the key never changes," he said.

Grothoff declined to speak to Newsweek, saying he wanted his testimony to stand alone.

Initially, the significance of the disclosure was not apparent except to a handful of people at WikiLeaks. "By itself, the passphrase disclosed by Mr. Leigh is useless, just like a physical house key found in the street. It opens some house. Without knowing which house, the key is useless," Grothoff stated.

But then, on August 25, 2010, a German news magazine, Der Freitag, published an article revealing that an encrypted, unredacted copy of the Cablegate archive was available online and that the passphrase was also available online for those who could identify it.

The Freitag article set off a treasure hunt, recalled Young, because everyone following the disclosures quickly figured out which passphrase they meant.

By that time, dozens of copies of the WikiLeaks site had been spread all over the Internet by its supporters to ensure it would survive any attempt to take down the site itself. WikiLeaks could no longer censor the content even if it wanted to, said Juan Passarelli, an independent film-maker and documentarian who has worked with WikiLeaks for more than a decade.

When Leigh published the passphrase there was nothing anyone could do, said Passarelli, adding that he was shocked because Assange had always stressed the importance of keeping passwords secret and other aspects of security — even setting up a special site so that redactions by the organization's media partners would be reflected in WikiLeaks own releases to avoid putting people at risk.

As far as the law is concerned, the redactions don't really matter, said Gabriel Rottman, the director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press.

"The indictment focuses on the publication of unredacted material, including the names of informants and other people who might be put at risk," Rottman told Newsweek, "You can argue that ethically, this is an important distinction, but as a matter of the black letter law, there is nothing in the text of the Espionage Act that turns on the publication of the names of informants. Even news organizations that redacted the identity of informants when publishing classified information could be prosecuted."

Ellsberg said he wanted the five media organizations that worked with WikiLeaks to emulate Young and step forward to be prosecuted alongside Assange — although Young himself said he would issue no such call to arms to the editors.

"Every one of those editors should be doing what John Young is doing," said Ellsberg, "Everyone who published those stories should be saying, 'If he's guilty, we're guilty.'"

Newsweek reached out for comment to all five publications. Der Spiegel Deputy Chief Editor Clemens Hoeges told Newsweek that the paper had "recently ... made our point" that they opposed the Assange prosecution in the open letter last month. "We have no further plans at this time," he added. None of the the other four papers responded.

This story has been updated to include the response from Der Spiegel, which arrived after it had been published.