Judge Denies Request to Unseal Assange Criminal Complaint Saying There is No
Proof it Exists
January 31, 2019
Judge Leonie Brinkema has denied an application from the Reporters'
Committee for Freedom of the Press to unseal the U.S. government's complaint
against WikiLeaks publisher Julian Assange.
By Joe Lauria
Special to Consortium News
A U.S. federal judge has ruled against a petition to unseal a criminal
complaint against WikiLeaks publisher Julian Assange, arguing that there is
no proof that it exists.
Judge Leonie Brinkema of the United States District Court for the Eastern
District of Virginia decided on Wednesday to turn down the request by the
Reporters Committee for Freedom of the Press to make public details of the
complaint, the existence of which was made known inadvertently last year.
"The Government opposes the Committee's application on the ground that it
has neither confirmed nor denied whether charges have been filed against
Assange and cannot be required to disclose that information before an arrest
is made," Brinkema wrote in her 10-page ruling.
Assange's named appeared in a totally unrelated criminal complaint,
apparently from a copy and paste mistake. The government called it an
"unintentional error."
Brinkema ruled that despite the government's admission of the error, "The
Government has not acknowledged whether formal charges have been filed
against Assange and the Committee has not cited any authority supporting the
notion that the public has a right to require the Government to confirm or
deny that it has charged someone."
Assange: Remains a refugee inside Ecuador Embassy
The Reporters Committee argued in a motion that the "case against Assange is
already a matter of public knowledge" and that the government cannot "put
the genie back" in the bottle. But the government argued in a court hearing
in November that the only conclusion that can be drawn from its admission is
that a mistake was made and "anything else is speculation."
Brinkema came down on the side of the government. "The Committee has not
demonstrated with sufficient certainty that Assange has been charged," she
wrote.
The judge ruled:
"Until there is a sufficiently certain disclosure that charges have in fact
been filed, the Committee's common law and First Amendment claims are
premature. To hold otherwise would mean that any member of the public or
press-by demanding access to judicial records based on little more than
speculation-could effectively force the Government to admit or deny that
charges had been filed."
The Inadvertent Paragraphs
Brinkema pointed to the two paragraphs in which Assange is mentioned in the
unrelated case. The paragraphs read:
"The United States has considered alternatives less drastic than sealing,
including, for example, the possibility of redactions, and has determined
that none would suffice to protect this investigation. Another procedure
short of sealing will not adequately protect the needs of law enforcement at
this time because, due to the sophistication of the defendant and the
publicity surrounding the case, no other procedure is likely to keep
confidential the fact that Assange has been charged.
"The complaint, supporting affidavit, and arrest warrant, as well as this
motion and the proposed order, would need to remain sealed until Assange is
arrested in connection with the charges in the criminal complaint and can
therefore no longer evade or avoid arrest and extradition in this matter."
Brinkema: Not convinced paragraphs are evidence of complaint against
Assange.
In her ruling, Brinkema wrote: ". news outlets and social media users
noticed the two references to 'Assange' and surmised that the Government had
instituted criminal charges against Julian Assange, the well-known founder
of WikiLeaks, though there is no public record of such charges having been
filed."
She said her decision "lies at the intersection of two weighty interests."
The first is the government's "need to be able to investigate criminal
activity and successfully bring to justice those charged with criminal
conduct."
The second is the public's "right to access judicial records and
proceedings, which is an indispensable feature of the American justice
system."
That public right is not "absolute," Brinkema wrote and may be "rebutted" if
the need to seal outweighs the public's interest.
The judge wrote:
"Of course, that a judicial record is subject to the right of access does
not mean that the public is entitled to inspect the record at all times and
in every case. To the contrary, that the right is presumptive means that it
may be overcome, in favor of nondisclosure or sealing, where appropriate.
This is usually the case before a charged person has been arrested because
of the government's well-established interests in preventing the accused
from avoiding arrest, destroying or tampering with evidence, or otherwise
interfering with the prosecution; securing privacy rights or confidential
sources of information; and protecting the public.
Although the Government recognizes that First Amendment right-to-access
analysis typically depends on what 'type of document' is being sought, it
asserts that courts must also consider the 'stage at which public access is
sought,' and specifically it argues that there is no First Amendment right
to access charging documents 'before an arrest.'"
Assange has been a refugee in the Ecuador Embassy in London since 2012
fearing that if he re-entered British territory he would be arrested and
extradited to the United States to face charges that Brinkema says there is
no evidence of. Senior U.S. officials have called for Assange's arrest after
WikiLeaks published classified documents revealing evidence of U.S. war
crimes and corruption.
Joe Lauria is editor-in-chief of Consortium News and a former correspondent
for The
