The United States Justice Department has indicated in a lawsuit involving a Freedom of Information Act (FOIA) request that records related to WikiLeaks must remain secret because the release may “cause articulable harm” to an ongoing Justice Department and FBI criminal investigation and “pending future prosecution.”

The Electronic Privacy Information Center (EPIC) submitted a request for records on “individuals targeted for surveillance” for their support or interest in WikiLeaks. They requested records of any lists of names of people placed on lists for their support or interest in WikiLeaks. They requested records of communications with Internet or social media companies on any lists of individuals who have shown support for WikiLeaks.

The organization also requested records on any communications with financial services companies, including Visa, MasterCard and PayPal, on lists of individuals who have donated money and shown support for WikiLeaks.

Government attorneys in this lawsuit have now confirmed twice that the criminal investigation into the unauthorized disclosure of information that was published on WikiLeaks’ website is not over. The government has feared revealing any information would jeopardize “civilian criminal/national security investigation(s)” that are apparently “multi-subject” and “active and ongoing.”

The government’s position in the lawsuit is either reflective of (a) the fact that someone connected to WikiLeaks, including its editor-in-chief Julian Assange, may be indicted in the future or (b) the investigation is being kept open in order to help prevent the release of information related to the investigation.

Unknown officials anonymously claimed to Washington Post reporter Sari Horowitz in November 2013 that charges would not be brought against Assange for “publishing classified documents because government lawyers said they could not do so without also prosecuting US news organizations and journalists.”

What the Post’s story overlooked or neglected was how the Justice Department could potentially pursue charges that would essentially criminalize the communication of classified information in the course of engaging in journalism. It also failed to highlight the grand jury that remains empaneled in Alexandria, Virginia. So long as it remains empaneled, a possibility that cases could be constructed remains a distinct possibility.

Regardless of whether prosecutions are, in fact, brought eventually, the government is worried about revealing law enforcement records that would show “the size, scope, and direction of the DOJ’s and FBI’s pending criminal investigation.”

The FBI also has an interest in keeping the records concealed, which would show just how intertwined the investigations of Chelsea Manning and WikiLeaks happen to be.

This fact came up in the court-martial of Manning with questions asked directly by military prosecutors about how Assange worked to facilitate his leaks to the organization.

Here the case of Barrett Brown, a journalist and activist who has faced criminal charges related to the publication of information from the private intelligence firm, Stratfor, is instructive.

Brown faced up to 105 years in prison if convicted of all counts. Charges were withdrawn by the government, and the potential time he would likely serve in prison was significantly reduced. However, the government slipped in a new charge in a superseding indictment: “accessory after the fact to an unauthorized access to a protected computer,” a charge under the Computer Fraud and Abuse Act.

Kevin Gallagher of Free Barrett Brown has expressed concern that the novel legal construction of this charge could be applied against other journalists who cross a certain line in their dealings with hackers and thus become “accessories” in the eyes of the Justice Department.

There are records of communications with a person whom the government believes was Assange. These communications involve conversations about future unauthorized disclosures to be posted to WikiLeaks. Would that be enough to charge him as the government charged Brown?

Recognize that the Justice Department does not consider Brown a journalist. Assange is not a journalist to the Justice Department either. These are people who traffic information from hackers, leakers, or government insiders, etc, and the Justice Department will utilize all FBI resources to disrupt and stop them.

The National Security Agency (NSA), as documents from NSA whistleblower Edward Snowden reveal, included an entry in something called a “Manhunting Timeline” that related to efforts to have Assange prosecuted in 2010:

The United States on 10 August urged other nations with forces in Afghanistan, including Australia, United Kingdom and Germany, to consider filing criminal charges against Julian Assange, founder of the rogue WikiLeaks Internet website and responsible for the unauthorized publication of over 70,000 classified documents covering the war in Afghanistan. The documents may have been provided to WikiLeaks by Army Private First Class Bradley Manning. The appeal exemplifies the start of an international effort to focus the legal element of national power upon non-state actor Assange and the human network that supports WikiLeaks.

The US intelligence community even considered designating WikiLeaks a “malicious foreign actor” for the purposes of being able to conduct surveillance of American users who were visiting the website.

Government attorneys note that the risk of disclosure of records in Manning’s trial has diminished, but the release of “investigative files” could “jeopardize proceedings” in the appeal, particularly if there was “any reversal and remand for new trial.” But the same attorneys even acknowledge this is not the chief concern; they’re worried primarily about the investigation that remains ongoing into WikiLeaks.

Unknown anonymous US officials have deliberately tried to convince the public through the gullibility of US reporters that no threat of criminal investigation remains. It has been a part of an effort to further marginalize and make all those involved in WikiLeaks, especially Assange, seem irrationally paranoid.

Alarmingly, in all this, few have seriously called into question how the Obama administration has insisted on maintaining a low-hanging cloud over WikiLeaks to further isolate the media organization and convince many to tread carefully when working with the media organization.

Creative Commons-Licensed Illustration by Donkey Hotey