Even WikiLeaks Haters Shouldn’t Want it Labeled a “Hostile Intelligence Agency”

It used to be easy to cheer on WikiLeaks. But since 2010, many (myself included) have watched with dismay as WikiLeaks slid from the outlet courageous enough to host Chelsea Manning’s data dump to a murky melange of bad-faith propagandizing and newsworthy disclosures. At a time when WikiLeaks and its founder are willing to help push “Pizzagate,” and unable to tweet about sunglasses sans conspiracy-think, it’s not unfair to view Julian Assange as being motivated as much by his various axes to grind as he is by a zeal for transparency. But even the harshest WikiLeaks critics should resist the Senate’s attempt to brand the website a “non-state hostile intelligence service” in the 2018 intelligence authorization bill.

Ron Wyden isn’t a friend of WikiLeaks. In May, the Oregon senator’s office tweeted that it was an “established fact” that “Trump actively encouraged Russians & WikiLeaks to attack our democracy,” and pointed out, with suspicion, President Donald Trump’s praise for WikiLeaks during the campaign. Like his Democratic colleagues on the Senate Intelligence Committee, Wyden embraced the tough language on Russian meddling that had been folded into the nation’s spy budget, but unlike them he voted against the reauthorization bill because of this sentence: “It is the sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.”

So, what’s a “non-state hostile intelligence service”? That’s a great question, given that an “intelligence service” is a spy agency, and spy agencies are the tools of governments, and therefore not stateless. That’s exactly why Wyden, despite his opposition to WikiLeaks and determination to investigate Russian electoral interference, came to its defense: Official resolutions are risky when no one’s really sure what’s being resolved. Perhaps the hostile agency language would be purely symbolic, but if the clause somehow proved to have some teeth, plenty of publishers not so easily written off as tools of foreign meddling could be at risk.

The Hill reports that Wyden objected to the “use of the novel phrase” to label WikiLeaks because the ambiguous term “may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets,” adding that the notion the “U.S. government has some unstated course of action against ‘non-state hostile intelligence services’ is equally troubling.” When CIA Director Mike Pompeo used the “non-state hostile intelligence service” phrase to describe WikiLeaks in a think tank address in April, the words were equally unclear, and nothing has changed four months later — except the possibility that the language would become government policy. That’s significant and should worry you whether you hate WikiLeaks or not.

Wyden press director Keith Chu added that even though the senator “has repeatedly criticized WikiLeaks for the role it played in the last election as a tool of Russia,” it’s “easy to imagine how this type of designation could be used against legitimate press outlets, or used to target journalists who may use materials published by WikiLeaks.” In short, regardless of any low opinion of Assange or his site, “the precedent of creating this new category of enemy to the United States is dangerous.”

The U.S. government despises WikiLeaks, and has since at least 2010, when the group released more than half a million documents revealing secrets about decades of U.S. diplomacy and about the wars in Iraq and Afghanistan. This animosity is itself no secret. The website exists to antagonize and embarrass world governments, but American power has remained the site’s largest target and Assange’s bête noire. Hatred for Assange and a longing to see him taken down is shared across the U.S. political spectrum by both elected and unelected officials and is firmly in the public record; so too is Assange’s unbending hostility toward the U.S. government.

What’s not in the public record is clear evidence of WikiLeaks’s status as a “non-state hostile intelligence service,” whatever that means. The declassified version of the U.S. Intelligence Community’s report on alleged Russian electoral interference states, “We assess with high confidence that Russian military intelligence (General Staff Main Intelligence Directorate or GRU) obtained in cyber operations publicly and in exclusives to media outlets and relayed material to WikiLeaks.” The report notes that “Moscow most likely chose WikiLeaks because of its self-proclaimed reputation for authenticity,” but that’s about as far as the collaboration is defined. It’s important to distinguish being thoroughly supportive of something and actually being part of it; if there were no difference, Breitbart’s offices would be located in a tent on the South Lawn.

It seems entirely plausible that WikiLeaks was in some sense in cahoots with some portion of the Russian government: The invented hacker persona Guccifer 2.0, which private analysts and the U.S. government both allege was a figment of Russian intelligence, was open about its collaboration with WikiLeaks (last summer, Guccifer 2.0 told me they were preparing to hand Democratic National Committee materials to WikiLeaks shortly before it happened). The alignment of some professed values and goals between Vladimir Putin, Assange, and Trump is also undeniable. It’s for this reason that the site has picked up so many vocal detractors (and, in fairness, supporters) over the past year. But there’s nothing about the above that’s inconsistent with the possibility that Assange received materials from Russian hackers and simply wasn’t concerned with or bothered by their origin, given that they would embarrass and destabilize his arch nemesis, Hillary Clinton. That should open up a public debate over whether Assange is too personally compromised as a publisher, but should suspicion of a publisher’s motives be enshrined in law? If Assange is a hack with a flagrant agenda and few scruples, then he’s got lots of company.

To legendary First Amendment lawyer Floyd Abrams, who told The Intercept that though he’s “quite critical” of WikiLeaks’s behavior, the “factual issue about just what WikiLeaks has done, what contacts it has and has had with adversaries of this country, and the like” should be separate from an official government designation:

The broader issue is whether our government should be designating any entity as a “non-state hostile intelligence agency.” I’m not sure of the intended consequences of such a designation, but I’m pretty sure it could open WikiLeaks to threats and perhaps even violence. It has the sound of some official finding, which it is not, with some legal meaning to it, which it is not. So while I wouldn’t object to high-ranking intelligence officials harshly criticizing WikiLeaks, I’d stay away from faux official designations.

Trevor Timm, executive director of the Freedom of the Press Foundation, told The Intercept that “Ron Wyden is right that the WikiLeaks provision is unprecedented, vague, and potentially very dangerous”:

Regardless of whether you like or hate WikiLeaks, Congress singling out a publisher of information using a undefined and made-up term like “non-state hostile intelligence service” to potentially stifle First Amendment rights and opening the door to more surveillance of sources should concern all journalists. It’s a shame more members of Congress do not see this obvious danger.

(Freedom of the Press Foundation receives funds from The Intercept’s parent company.)

In short, even if you think Julian Assange is a sleaze, or a liar, or a Putinist, and even if he were indeed all of those bad things, he’s also a publisher of authentic information he wasn’t supposed to have. A politically motivated publisher is still a publisher, and to deem one of them an enemy of the state would endanger any outlets working with or interested in materials and information they aren’t supposed to have — which, in 2017, is almost all of them. From the Department of Justice to the White House to Congress, the anti-leaker sentiment is feverish, and the openly threatening language used against those who would publish true information is unprecedented. WikiLeaks makes a tempting target for defenders of state secrecy because the website’s reputation is mostly in the mud once you get outside of Trumpland — but consider the consequences.

“Non-state hostile intelligence service” has no technical meaning — what would stop an outlet like the New York Times (or all of its peers and competitors) from being deemed the same based on its reporting of the same hacked emails?

What exactly is the legal status of a “non-state hostile intelligence service”? Would donating to WikiLeaks be considered providing material aid to an enemy?

What of the many reputable journalists who’ve worked with WikiLeaks in the past, from the New York Times to Der Spiegel? Are they now guilty of having collaborated with a “non-state hostile intelligence service”?

Were WikiLeaks to publish another truly groundbreaking and valuable release along the line of Manning’s, what then? Would journalists be free to glean stories from this enemy spy agency?

There aren’t any answers to these questions, making the language all risk with little upshot of reforming or changing Assange or WikiLeaks in any meaningful way. The much more likely outcome would be Assange treating the designation as a vindication, proof that he’s a victim of U.S. governmental persecution. It would not, however, do much to persuade him that Marine Le Pen boosterism and bogus “spirit cooking” conspiracy theories aren’t in the public interest, but could do much to chill those around the world doing real work. Don’t give Assange, or Pompeo, the satisfaction.

Top photo: Julian Assange leaves after speaking to the media from the balcony of the Embassy of Ecuador in London on May 19, 2017.