NOTE ON THE VARIOUS ATTEMPTS TO PERSECUTE WIKILEAKS AND PEOPLE ASSOCIATED WITH IT
At several points in the following discussion references are made to recent events in the story of WikiLeaks and its publishing efforts. These may be obscure to readers unfamiliar with the story of WikiLeaks, so they are summarized here at the outset.
It is WikiLeaks’ mission to receive information from whistleblowers, release it to the public, and then defend against the inevitable legal and political attacks. It is a routine occurrence for powerful states and organizations to attempt to suppress WikiLeaks publications, and as the publisher of last resort this is one of the hardships WikiLeaks was built to endure.
In 2010 WikiLeaks engaged in its most famous publications to date, revealing systematic abuse of official secrecy within the US military and government. These publications are known as Collateral Murder, the War Logs, and Cablegate.14 The response has been a concerted and ongoing effort to destroy WikiLeaks by the US government and its allies.
THE WIKILEAKS GRAND JURY
As a direct consequence of WikiLeaks’ publications the US government launched a multi-agency criminal investigation into Julian Assange and WikiLeaks staff, supporters and alleged associates. A Grand Jury was convened in Alexandria, Virginia, with the support of the Department of Justice and the FBI to look into the possibility of bringing charges, including conspiracy charges under the Espionage Act 1917, against Julian Assange and others. US officials have said that the investigation is of “unprecedented scale and nature.” In Grand Jury proceedings no judge or defense counsel is present. Congressional committee hearings have since heard the suggestion from members of the US Congress that the Espionage Act could be used as a tool to target journalists who “knowingly publish leaked information,” suggesting that the approach is being normalized in the US justice system.15
At the date of publication, the WikiLeaks investigation continues.16 Several people have been legally compelled to give evidence. Court proceedings in the trial of Bradley Manning, the soldier accused of passing information to WikiLeaks, reveal an FBI file on the investigation of WikiLeaks that runs to over 42,100 pages, some 8,000 of which refer to Manning. Bradley Manning has been detained without trial for over 880 days. UN Special Rapporteur for Torture, Juan Mendez, formally found that Bradley Manning had been treated in a manner which was cruel and inhuman, and which possibly amounted to torture.17
CALLS FOR THE ASSASSINATION OF JULIAN ASSANGE AND PUBLICLY DECLARED WIKILEAKS TASK FORCES
The Grand Jury investigation is not the only avenue of attack on WikiLeaks. In December 2010, in the wake of Cablegate, various active US politicians called for the extrajudicial assassination of Julian Assange, including by drone strike. US senators labeled WikiLeaks a “terrorist organization” and named Assange a “high-tech terrorist” and an “enemy combatant” engaged in “cyber warfare.”18
A 120-strong US Pentagon team called the WikiLeaks Task Force, or WTF, was set up ahead of the release of the Iraq War Logs and Cablegate, dedicated to “taking action” against WikiLeaks. Similar publicly declared task forces in the FBI, the CIA and the US State Department are also still in operation.19
DIRECT CENSORSHIP
In an act of unprecedented censorship of a journalistic publication, the US government pressured internet service providers to cease services to WikiLeaks.org. On December 1, 2010 Amazon removed WikiLeaks from its storage servers, and on December 2 the DNS service pointing to the Wikileaks.org domain was disrupted. WikiLeaks was kept online during this period as the result of a “mass-mirroring” effort, whereby thousands of supporters of WikiLeaks copied the website, and hosted their own version, distributing the IP addresses through social networks.20
The Obama administration warned federal employees that materials released by WikiLeaks remained classified—even though they were being published by some of the world’s leading news organizations including the New York Times and the Guardian. Employees were told that accessing the material, whether on WikiLeaks.org or in the New York Times, would amount to a security violation.21 Government agencies such as the Library of Congress, the Commerce Department and the US military blocked access to WikiLeaks materials over their networks. The ban was not limited to the public sector. Employees from the US government warned academic institutions that students hoping to pursue a career in public service should stay clear of material released by WikiLeaks in their research and in their online activity.
FINANCIAL CENSORSHIP: THE BANKING BLOCKADE
WikiLeaks is funded by donations from supporters. In December 2010 major banking and financial institutions, including VISA, MasterCard, PayPal and Bank of America, bowed to unofficial US pressure and began to deny financial services to WikiLeaks. They blocked bank transfers and all donations made with major credit cards. While these are American institutions, their ubiquity in world finance meant that willing donors in both America and around the world were denied the option of sending money to WikiLeaks to support its publishing activities.
The “banking blockade,” as it has become known, is being conducted outside of any judicial or administrative procedure and remains in place at the date of publication. WikiLeaks has been pursuing major court cases in different jurisdictions across the world in order to break the blockade, with some preliminary victories, and the legal processes are ongoing. In the meantime WikiLeaks has been denied income, has elevated costs, and has been operating on reserve funds for nearly two years.
The banking blockade is an assertion of the power to control financial transactions between third parties. It directly undermines the economic freedoms of individuals. Beyond even this, the existential threat it poses to WikiLeaks exemplifies a new and troubling form of global economic censorship. 22
Some people allegedly associated with WikiLeaks, along with supporters and WikiLeaks staff themselves, have had mysterious issues with their bank accounts—from account details to full bank account closure.
HARASSMENT OF JACOB APPELBAUM AND JÉRÉMIE ZIMMERMANN
On July 17, 2010 Julian Assange was slated to speak at the HOPE hacker conference in New York City. He canceled, and Jacob Appelbaum appeared in his stead. Since this appearance law enforcement agencies have been running a campaign of harassment against Appelbaum and people in his life. Appelbaum has been routinely detained, searched, denied access to legal counsel and interrogated at border crossings whenever he travels into and out of the United States. His equipment has been seized and his rights violated, during which he has been threatened with further violations of his rights. His detainment and harassment has involved dozens of US agencies, from the Department for Homeland Security Immigration and Customs Enforcement to the US Army. These detentions even include the refusal of access to toilets as a method of pressuring compliance. Through all this, Appelbaum has never been charged or told by the government why he is being harassed.23
In mid-June 2011, while preparing to board a plane at Washington’s Dulles Airport, Jérémie Zimmermann was stopped by two self-identified FBI agents. The agents questioned him about WikiLeaks and threatened him with arrest and imprisonment.
Appelbaum and Zimmermann are among a long list of friends, supporters, or alleged associates of Julian Assange who have been subject to harassment and surveillance by US agencies, a list that includes lawyers and journalists engaged in the course of their professional duties.
WARRANTLESS SEIZURE OF ELECTRONIC RECORDS AND THE “TWITTER SUBPOENA CASE”
On December 14, 2010 Twitter received an “administrative subpoena” from the US Department of Justice ordering it to give up information that might be relevant to an investigation into WikiLeaks. The subpoena was a so-called “2703(d) order,” referring to a section of the Stored Communications Act. Under this law the US government claims the authority to compel the disclosure of private electronic communication records without the need for a judge to issue a search warrant—effectively getting around Fourth Amendment protections against arbitrary search and seizure.
The subpoena sought user names, correspondence records, addresses, telephone numbers, bank account details, and credit card numbers from accounts and people allegedly associated with WikiLeaks, including Jacob Appelbaum, Icelandic parliamentarian Birgitta Jonsdottir, Dutch businessman and internet pioneer Rop Gonggrijp, and WikiLeaks itself. Under the terms of the subpoena Twitter was gagged from even telling them of the existence of the order. However, Twitter successfully appealed against the gag clause and won the right to inform the targets that their records were being requested.
Having been told about the subpoena by Twitter, on January 26, 2011 Appelbaum, Jonsdottir and Gonggrijp, represented by Kecker and Van Nest, the American Civil Liberties Union and the Electronic Frontier Foundation, had their attorneys jointly file a motion to vacate the order. This has become known as the “Twitter subpoena case.”24 A further motion was filed by Appelbaum’s attorney requesting to unseal the still-secret court records of the government’s attempts to collect his private data from Twitter and any other companies. Both motions were denied by a US Magistrate Judge on March 11, 2011. The plaintiffs appealed.
On October 9, 2011 the Wall Street Journal revealed that the Californian email provider Sonic.net had also received a subpoena demanding the data of Jacob Appelbaum. Sonic had fought the government order and lost, but had obtained permission to disclose that it had been forced to turn over Appelbaum’s information. The Wall Street Journal also reported that Google had been served a similar subpoena, but did not say whether Google had challenged it in court.25
On November 10, 2011 a federal judge decided against Appelbaum, Jonsdottir and Gonggrijp, ruling that Twitter must give their information to the Justice Department.26 On January 20, 2012 the plaintiffs again appealed, seeking to challenge the refusal to unseal orders that might have been sent to companies other than Twitter.”27 At the time of publication, the case is ongoing.