A Senate panel may be stealthily trying to give federal law enforcement a new tool to go after the anti-secrecy group WikiLeaks and its U.S. collaborators.
A one-sentence “Sense of Congress” clause was tacked onto the end of a massive 11,700-word bill that was approved by the Senate Intelligence Committee and is likely to come before the full Senate later this month.
The clause says that WikiLeaks “resembles a non-state hostile intelligence service” and that the U.S. government “should treat it as such.”
The intended target might not be Julian Assange, the Australian-born founder of WikiLeaks who has been holed up at the Ecuadorean Embassy in London since 2012. Federal law enforcement, experts say, is likely targeting anyone collaborating with his organization.
And this language would help investigators secure the authorization needed to surveil those U.S. citizens thought to be associated with WikiLeaks, said Robert L. Deitz, a lawyer who has held senior legal posts at the CIA, the National Security Agency and at the Pentagon’s intelligence offices. Requests to spy on citizens go to the secret Foreign Intelligence Surveillance Court, and, at least theoretically, they are difficult to obtain.
“You need to show that someone is an agent of a foreign power,” said Deitz, who teaches at the Schar School of Policy and Government at George Mason University in Arlington, Virginia.
“It’s possible that Assange has colleagues in this country that they need to focus on,” Deitz said, noting that such action can only be done under court order.
Some mystery surrounds how the clause was added to the Intelligence Authorization Act 2018, the motivations for its inclusion and its intended impact. The office of Sen. Richard Burr, the North Carolina Republican who chairs the intelligence committee, declined to offer details.
“We don’t discuss committee deliberations,” spokeswoman Rebecca Glover said.
But the language in the bill tracks closely with remarks by CIA Director Mike Pompeo April 13 in his first public speech after taking the job.
Speaking at a Washington think tank, Pompeo said: WikiLeaks “walks like a hostile intelligence service and talks like a hostile intelligence service. It has encouraged its followers to find jobs at CIA in order to obtain intelligence. … It is time to call out WikiLeaks for what it really is – a non-state hostile intelligence service often abetted by state actors like Russia.”
WikiLeaks, which espouses what it calls radical transparency, has been a thorn in the side of the U.S. government for nearly a decade. Earlier this year, it began publishing what it called the biggest ever leak of confidential CIA documents.
The group played an outsized role in the 2016 presidential campaign. In July, the group released thousands of emails obtained after a hack of the Democratic National Committee. In the weeks before the Nov. 8 election, it divulged thousands more emails hacked from the account of Hillary Clinton’s campaign chairman, John Podesta, embarrassing her campaign.
According to press reports, a grand jury in the eastern district of Virginia began weighing evidence against Assange and his organization at least four years ago and produced a sealed indictment. The Justice Department has never confirmed those reports. Assange has said he fears extradition to stand trial in the United States on espionage charges based on earlier leaks, including of classified internal military logs of the war in Afghanistan in 2010, and secret State Department cables later that year.
Assange’s U.S. lawyer, Barry Pollack, said he does not believe the secret FISA court should accept the “sense of Congress” clause in any legal argument presented by federal authorities seeking surveillance authority on a U.S. citizen.
“Will some intelligent(cq) agent make that argument to a court and will a court accept that argument? The honest answer is, who knows?” Pollack said.
Pollack, who represents Assange, but not WikiLeaks, said he believes the group does not have paid employees in the United States.
Divisions cleave sectors of the Republican party regarding WikiLeaks. One Republican congressman, Dana Rohrabacher, said he spent three hours with Assange in his embassy refuge in London on Aug. 17, and suggested that President Donald Trump should pardon him.
Rohrabacher said Assange assured him that Russia was not behind the DNC hack or the disclosure of the emails, refuting the assessment of U.S. intelligence agencies.
Trump has not spoken publicly about WikiLeaks since the CIA director declared it to be a hostile entity. He has repeatedly criticized leakers inside his administration and called on the Justice Department to launch probes to stop the unauthorized release of information. But in the heat of the presidential campaign, amid WikiLeaks publication of Podesta’s emails, Trump told an Oct. 10, 2016, rally in Pennsylvania, “I love WikiLeaks.”
As the Senate takes aim at WikiLeaks, dissenting senators voiced worry that the clause inserted in the intelligence authorization act could ricochet and harm traditional journalists.
Sen. Kamala Harris of California declared that she is “no supporter of WikiLeaks,” which she said had done “considerable harm” to the United States. But the clause on the group is “dangerous” because it “fails to draw a bright line between WikiLeaks and legitimate news organizations that play a vital role in our democracy,” according to her remarks for the record.
Another, Sen. Ron Wyden of Oregon, condemned WikiLeaks’ publications of U.S. classified information but said the clause could chill the actions of investigative reporters inquiring about secrets.
“My concern is that the use of the novel phrase ‘non-state hostile intelligence service’ may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets,” Wyden said in his remarks.
Indeed, experts on U.S. intelligence actions said the Senate bill’s phrasing on WikiLeaks is both novel and vague, leaving uncertainty about what may ensue.
Steven Aftergood, a senior research analyst at the Federation of American Scientists, said in a blog post Monday that U.S. agencies, faced with a conventional hostile intelligence agency, might “seek to infiltrate the hostile service, to subvert its agenda, and even to take it over or disable it.”
“Whether such a response would also be elicited by ‘a non-state hostile intelligence service’ is hard to say since the concept itself is new and undefined,” Aftergood wrote.