CIA Director Pompeo gets tough on WikiLeaks, hints at legal action

CIA Director Mike Pompeo speaks at the Center for Strategic and International Studies (CSIS) in Washington, Thursday, April 13, 2017. Pompeo denounced WikiLeaks, calling the anti-secrecy group a "hostile intelligence agency." (AP Photo/Pablo Martinez Monsivais)

In a speech on Thursday, Central Intelligence Agency (CIA) Director Mike Pompeo sharply criticized the group that only a few months ago President Donald Trump was praising for its role in releasing the private emails of their Democratic opponents. Not only did Pompeo use the harshest words to describe WikiLeaks and its founder Julian Assange, but the director also suggested that under the Trump administration WikiLeaks' activities may no longer be shielded from justice.

For years, WikiLeaks has portrayed itself as a media organization protected by the First Amendment, seeking to increase transparency and government accountability. To that end, the group has released scores of classified government documents from diplomatic cables and military intelligence to the espionage tools used by the National Security Agency (NSA), and most famously its disclosures in 2016 of Democratic candidate Hillary Clinton's personal emails.

On Thursday, Pompeo sought to re-characterize the organization, insisting that the group is a "hostile intelligence service" that has made "common cause with dictators" and poses a grave threat to American national security.

"It’s time to call our WikiLeaks for what it really is, a non-state hostile intelligence service often abetted by state actors like Russia.," Pompeo said in his prepared remarks at the at the Center for Strategic and International Studies (CSIS).

He continued that Assange and WikiLeaks "have pretended America’s First Amendment freedom shield them from justice ... but they’re wrong." Assange and his associates, Pompeo said, can now longer be allowed "the latitude to use free speech values against us." The exposure of U.S. secrets under the "cloak" of liberty and privacy, he said, "ends now."

As a former member of the House Intelligence Committee, WikiLeaks' activities should not have been a mystery to Pompeo. Yet like many other members of President Trump's team, there has been an evolution in their views on the organization, from outright praise to the sharpest condemnation.

During the 2016 election Pompeo was glad to use WikiLeaks' disclosures to attack his political opponents, as WikiLeaks was proud to re-post an archived tweet Rep. Pompeo sent out on July 24, 2016 that has since been deleted.

President Trump himself said in a campaign speech in October, "I love WikiLeaks!" Referring to fresh disclosures of hacked emails from Clinton campaign chairman John Podesta.

In a speech last week, Clinton herself said that WikiLeaks played "a much bigger role than many people understand yet" and "had the determinative effect" on her election loss to Donald Trump.

Despite the previous support for WikiLeaks' activities, the Trump administration appears to be not only evolving, but perhaps tipping beyond mere criticism of the organization.

The head of the technology program at CSIS, James A. Lewis, noted that the change in position the Trump team has taken towards WikiLeaks is all part of the new job.

"What you do when you're a private citizen is different from what you do as an elected official or an appointed official," he said. "Their job changed, and all of a sudden they realize they need these agencies to do their job and WikiLeaks is not helping them."

In part, the administration has become all too aware of the risks and political liabilities posed by leaks just in the first few months of the administration. That has helped narrow the focus on the role being played by WikiLeaks, which Lewis described as a "tool" to be used by foreign intelligence and part of "a deliberate effort to undermine U.S. intelligence agencies" whether witting or unwitting.

Still, he argued that Assange is not only protected under the First Amendment, but he was given a spot on the Washington Post opinion page earlier this week to freely express his views.

"No one is going to crack down on the freedom of speech. Assange has to have that right," Lewis explained. The notion that the U.S. government would seek to silence WikiLeaks is part of Assange's "paranoid fantasies," he added. "If we were going to shut down WikiLeaks, it would have happened years ago ... that's not how it works here."

Hudson Institute senior fellow and author of "Necessary Secrets: National Security, the Media, and the Rule of Law," Gabriel Schoenfeld believes that the CIA director's changing views on WikiLeaks suggests a degree of hypocrisy.

"There seems to be quite a reversal and no acknowledgement of the reversal," he said. During his speech, Pompeo did not even acknowledge the Trump position on the campaign trail when he openly called for Russia to find Hillary Clinton's 30,000 missing emails.

Pompeo's tough position on WikiLeaks, suggesting the group may have colluded with Russian military intelligence to release stolen data, may also portend some action by the administration against the group.

"There's some language in [Pompeo's speech] that suggests some sort of legal action is pending against WikiLeaks," he said, referring to Pompeo's "not-so-veiled threat to take action."

Taking action against WikiLeaks specifically for revealing classified information would pose a grave threat to the freedom of the press, which is an even more pressing concern in the Trump administration, Schoenfeld warned. "I think there's real animus towards the press, segments of the press, and there are leaks that are clearly troubling to him," he explained.

In responding to leaks against his own White House, Trump suggested in recent months that journalists should not be allowed to use sources unless they reveal their names. On the campaign trail, Trump also raised concerns when he suggested he would "open up" libel laws to make it easier to sue reporters and news agencies.

Bringing charges against WikiLeaks for collecting and publishing information, an activity can likely be defended as a freedom of the press, would set a dangerous legal precedent. But if the group was an active part in stealing the materials of facilitating that theft, behaving like a "hostile intelligence service," it could be a different story.

The U.S. intelligence community has not made a definitive assessment of the actual role WikiLeaks played in the 2016 election. So far, the agencies have not released anything but circumstantial evidence suggesting that WikiLeaks or Assange colluded with Russian intelligence assets in getting access to hacked emails from Podesta and the Democratic National Committee.

Constitutional lawyer Floyd Abrams has argued numerous First Amendment cases before the Supreme Court and sees potentially troubling developments emerging around WikiLeaks. In his upcoming book, "The Soul of the First Amendment," Abrams argues that WikiLeaks appears unrestrained by the traditional barriers to publication, like concern for national security or potential harm to individuals named in documents. But any attempt to bring charges against the group, especially under the Espionage Act, would set a dangerous legal precedent for the press in America.

"A litigation against WikiLeaks would give the American press great concern," he said, "not because of any affection or even affiliation with WikiLeaks, but because WikiLeaks could make very bad law."

The possibility that reporters could be held liable for reporting classified information passed on to them from whistleblowers inside the government would have a profound chilling effect on free expression, and could be a consequence of a poorly handled case against Assange.

"Wikileaks doesn't help in that respect, because its beahvior is often so troubling both in terms of motivation and potential impact," he said, noting that on the whole, WikiLeaks "has served as an enemy of the United States."

Pompeo's speech could have been a clarification of the administration's policy on WikiLeaks and national security leaks on the whole, which was more than ambiguous during the campaign. It could also be a sign of things to come, potentially an even tougher response to national security leakers than was seen during the Obama administration. It could show that the administration is taking the threat of Russian interference in the election more seriously than it has in the past. But the CIA director's statements could also signal potential threats to the First Amendment.

After decades working on cases where the freedom of the press hung in the balance, Abrams commented that it "remains unpredictable at this moment whether the administration will go down that road or not."

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