The Controversial Prosecutor at the Heart of the Julian Assange Case

The battle to extradite WikiLeaks publisher Julian Assange from the United Kingdom to the United States is shaping up to be a legal case of paramount importance to the future of national security reporting. The U.S. continues to press the case even after a change of administration, with President Joe Biden keeping up efforts to bring Assange to a U.S. court on Espionage Act charges for his role in publishing classified government documents. One little-noted name in filings from extradition hearings in the U.K. keeps popping up as a key figure in the U.S. government’s case: a federal prosecutor named Gordon Kromberg.

On the central questions of what assistance Assange provided to whistleblower Chelsea Manning and the ostensible harm his actions caused to U.S. national security, a U.K. court filing earlier this year cites Kromberg’s assertions verbatim. “Mr. Kromberg’s evidence on this is clear,” the filing says. “He stated that stealing hundreds of thousands of documents from classified databases was a multistep process.” The same document cites Kromberg again, claiming that “well over one hundred people were placed at risk from the disclosures and approximately fifty people sought and received assistance from the US” — references to purported U.S. intelligence assets outed by the documents WikiLeaks published.

Kromberg, an assistant United States attorney in the Eastern District of Virginia, may be unknown to foreign and even many American observers. In U.S. legal circles, though, he has been a highly controversial figures for over two decades, dogged by accusations of bias and politicization in his prosecutions. For years, civil rights activists and lawyers tried to draw attention to allegations of Kromberg’s abusive practices. Rather than being pushed into obscurity by these efforts, today he is serving as a key figure in one of the most important civil liberties cases in the world.

In all, the January court documents from Assange’s extradition case mention Kromberg over 40 times to help make the legal argument for extraditing Assange. Many of his statements go to the heart of the Espionage Act case against the WikiLeaks publisher.

The case has raised alarms among civil liberties groups in the United States, particularly in light of the Biden administration’s decision to continue pressing for extradition. Assange has become a controversial figure in the U.S. due to his alleged role in manipulating the 2016 presidential election, but the charges he faces relate almost entirely to acts of receiving and publishing secret information — the bread and butter of most national security journalism.

“If Julian Assange is extradited to the U.S. it would be by far the most important and dangerous trial for press freedom in the 21st century,” said Trevor Timm, co-founder and executive director of the Freedom of the Press Foundation. (Timm is an occasional contributor to The Intercept.) “Seventeen out of 18 changes in the indictment against Assange are Espionage Act charges. This is the same law that has been used against sources and whistleblowers for over a decade now, and which news organizations have been terrified would be used against them to prosecute national security reporters who receive classified information from their sources.”

This January, Assange’s extradition was blocked on humanitarian grounds. More recently, a report from the Icelandic investigative news site Stundin claimed that a key witness in the U.S. case against Assange recanted his testimony, potentially throwing the charges against him into further disarray. For now, the extradition fight is ongoing, and a new ruling on the U.S. government’s appeal of the January decision is expected later this year.

Unbowed by outside pressure and criticism that using the Espionage Act against Assange would endanger press freedoms, the Biden Justice Department continues to use one of its most incendiary prosecutors to help bring Assange to U.S. soil.

In the years after the 2001 September 11 terrorist attacks, Gordon Kromberg became the government’s point man on notorious terrorism cases involving allegations of torture and malicious prosecution. In the past, opposing counsels and civil rights groups accused him of engaging in racist behavior and using unethical tactics in pursuit of convictions.

Legal experts said that the inclusion of a notoriously politicized and aggressive prosecutor on a high-profile extradition case like Assange’s is a sign of how strongly the government is motivated to extradite the WikiLeaks publisher and bring Espionage Act charges at all costs.

“A common factor in Kromberg’s career has been a willingness to take very provocative positions on behalf of the government and stay the course with them,” said Wadie Said, a professor of law at the University of South Carolina and author of “Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions.” “He has also shown great willingness to take on highly political cases and to be a lightning rod himself for attention; he often makes himself part of the story with his own actions and statements.”

Said added, “From my perspective, some of the things that Kromberg has said in the past and the positions that he has taken are quite tendentious and even vindictive in terms of his mindset toward the person that he is targeting.”

Neither Kromberg nor the U.S. Attorney’s Office for the Eastern District of Virginia responded to requests for comment.

In 2008, Kromberg was the subject of a Washington Post profile covering his conduct in the prosecution of Sami Al-Arian, a Palestinian academic in the U.S. who faced terrorism charges after 9/11. The government’s relentless pursuit of Al-Arian came to be viewed by many legal observers as an example of malicious prosecution, with Kromberg’s role coming in for particular scrutiny.

Years of intense pursuit by the Justice Department, with Kromberg playing a lead role, over Al-Arian’s alleged terrorist ties failed to produce any jury convictions on 17 charges related to terrorism. In 2006, as part of a plea deal on a single count of conspiracy to provide money to a designated terror group, the former University of South Florida professor accepted a deportation order to Turkey to “conclude his case and bring an end to his family’s suffering,” as he previously told The Intercept.

The 2008 profile of Kromberg’s role cited one legal expert who referred to Kromberg as a “loose cannon.” Stephen Gillers, a legal ethics expert at New York University Law School, told the Washington Post, “If I were the Justice Department, I wouldn’t want him on the front lines of these highly visible, highly contentious prosecutions.” (Kromberg declined to comment to the Washington Post at the time.)

Despite the plea deal and planned deportation, Al-Arian’s ordeal went on for nine more years, continuing all the way until 2015, as Kromberg tried to drag him into providing more testimony in other cases and had him imprisoned again, for contempt, until he was finally deported.

Kromberg has been accused by civil rights groups of being motivated by anti-Muslim animus in many of his prosecutions, including one case in which he was accused of mocking the family of a terrorism suspect who had experienced torture in Saudi custody; he allegedly told them that their son is “no good for us here, he has no fingernails left.” (Kromberg declined to comment on the allegation at the time.)

According to affidavits filed by opposing counsel about his conduct, Kromberg allegedly criticized “the Islamization of the American justice system,” and denied appeals to accommodate Muslim defendants during Ramadan on the grounds that if “they can kill each other during Ramadan, they can appear before a grand jury.” These sentiments appear to have deep ideological roots. In personal diaries published by Kromberg online in the past, he espoused extreme views on the Israel-Palestine conflict, referring to the Israeli-occupied West Bank as “Judea and Samaria.”

Despite his checkered track record, Kromberg has continued to hold a high position in the Justice Department. In addition to his current role in the Assange extradition, he has also continued to prosecute high-profile terrorism cases.

In 2017, Kromberg prosecuted the case of a D.C. police officer accused of buying gift cards in support of terrorism, charges that arose from a controversial sting operation. In court, Kromberg leveled eyebrow-raising allegations that the suspect was both a supporter of the jihadist group Islamic State as well as the World War II-era German Nazi Party on the grounds that he owned historical paraphernalia. Referring to an anonymous online commenter who had called the defendant “Muslim-Nazi scum,” Kromberg argued in court, “Whether or not that’s true, I don’t know the answer to that. But the point is that the Nazi stuff in this case is very much related to the, to the ISIS stuff.”

Assange’s case has been largely ignored in the U.S. press, considering the potential implications of his prosecution under the Espionage Act. Kromberg’s key role, however, suggests that the Justice Department is not taking the implications of the case on its end lightly. Legal observers say that the incredible extent that the government is going to level these charges, spending years pursuing Assange in various forms, and placing one of its most aggressive prosecutors on the case all sends a dire message to those who would publish classified information in the future.

“This case is incredibly problematic, and we do believe it is politicized,” said Rebecca Vincent, the director of international campaigns at Reporters Without Borders. “What we’ve seen so far are very powerful interests throwing everything they’ve got at one person. Regardless of what happens next, that in and of itself will have a significant impact on national security reporting. Very few people are going to be willing to go through what he has gone through for over a decade.”

Vincent, who has been an observer on the case for Reporters Without Borders, said that the psychological and physical pressure of years of incarceration has taken a toll on Assange. His deteriorating condition and the likely further harm that he would suffer in U.S. prisons have been a key stumbling block in the effort so far to extradite him. A disclosure from the appeals case last week reported by the New York Times indicated that the U.S. government had consented to Assange being held in Australian custody, but only if the Australian government consented to the transfer and after all appeals in Assange’s case had been exhausted.

In a dark irony, Kromberg happened to be the one making the case in U.K. courts this past January that Assange might not have it so bad if he were held in U.S. custody. Prior court documents from Assange’s extradition hearing cited Kromberg to state expectations that Assange would be held in a highly restrictive supermax prison once sent to the U.S. were “purely speculative,” quoting him further to say that “the philosophy of the [Bureau of Prisons] is to house all inmates in the least restrictive environment appropriate for the inmate.”

Assange has become a polarizing figure in the U.S., with detractors and supporters divided over the nature of his work and motivations, particularly since the 2016 U.S. presidential elections, where he was believed to have acted in support of Donald Trump’s candidacy. Press freedom experts say that irrespective of people’s personal opinions on Assange, if he is successfully extradited and convicted on Espionage Act charges for publishing classified information, the consequences for the future of national security journalism in the U.S. would be grave.

“Lots of people hate Julian Assange, his opinions, and his tactics, but if you look at the Espionage Act charges that he faces, they wholly relate to speaking to sources, asking for more information, receiving or holding classified information, and then publishing a subset of that information,” said the Freedom of the Press Foundation’s Timm. “Whatever anyone thinks of Assange, or whether they think he’s a journalist or not, those actions are what journalists do all the time.”

Timm added, “If the U.S. government is successful in prosecuting Assange for those actions, there would be nothing stopping it from prosecuting New York Times or Washington Post reporters on the same grounds in the future.”