On The Freeing Of Julian Assange

Finally, Julian Assange is free after 12 years of confinement, much of it spent while under the threat of rendition to the US to face charges carrying a term of 175 years in prison. Yet ultimately, Assange has not been set free because the charges (of espionage and conspiracy to obtain state secrets) were conceded to have no merit. Instead, his freedom was conditional on a plea bargain charade whereby he admitted to a charge (brought under the US Espionage Act of 1917) that he had unlawfully solicited, obtained and distributed classified US national defence information.

This outcome still leaves the US free to co-oerce other journalists into similar acts of compliance. In future, any journalist/publisher who thinks of exposing state criminality by publishing “classified” documents will have the fate of Assange as a chilling deterrent. As Assange’s lawyer, Jennifer Robinson said yesterday:

...This prosecution sets a dangerous precedent, that should be of concern to journalists everywhere. The US is seeking to exercise extra-terrestrial jurisdiction over all of you without giving you constitutional free speech protections, and anyone who cares about free speech and democratic accountability should stand against it…

Exactly. Consider an analogy. Assume that a local journalist/publisher – for convenience, we’ll call him Ricky Lager – published articles about US collusion with Israel’s war crimes in Gaza, based on classified information leaked to him by a concerned Israeli military officer with access to the relevant evidence. Israel, outraged by the revelations, asked the New Zealand government to extradite Mr Lager to face charges of maliciously soliciting the leak of security information and spreading it.

The NZ government doesn’t have an extradition treaty with Israel but - under our Extradition Act - the relevant NZ Minister could sign an extradition order, and Mr Lager would then be on his way to a US or Israeli courtroom, to be prosecuted by the same governments directly and indirectly responsible for the crimes at issue. Roughly speaking that is what happened to Julian Assange, with UK government collusion in the process. Even the right-wing UK magazine the Spectator has been appalled:

Assange, based here [in the UK] and with no connection whatever to the US, faced extradition and a long US prison sentence for articles published in UK newspapers, on the basis that these articles revealed American military secrets obtained in the US, in breach of US law. He had broken no law here [in the UK] : our official secrets legislation does not cover information regarded as classified by foreign governments. But that did not matter. Espionage was an extraditable offence...

For the past few years, Assange’s lawyers have repeatedly argued that the UK‘s extradition treaties do not permit extradition for political offences.

Unpacking the Case

To recap the US case against Assange, here’s how it was set out in this week’s US court filings in the Marianas:

...From at least 2009 and continuing through at least 2011.... JULIAN PAUL ASSANGE...knowingly and unlawfully conspired with Chelsea Manning to commit the following offenses against the United States:

a. To receive and obtain documents, writings, and notes connected with the national defense, including such materials classified up to the SECRET level, for the purpose of obtaining information respecting the national defense,

b. To willfully communicate documents relating to the national defense, including documents classified up to the SECRET level, from persons having lawful possession of or access to such documents, to persons not entitled to receive them...and

c. To willfully communicate documents relating to the national defense from persons in unauthorized possession of such documents to persons not entitled to receive them, in violation of Title 18, United States Code, Section 793(e). In furtherance of the conspiracy, and to accomplish its objects, ASSANGE and Manning committed lawful and unlawful overt acts.

So they say. In the course of the three-hour court hearing in Saipan, Assange did plead guilty to one criminal count of conspiring to obtain and disclose classified national defence documents. But he also claimed that he believed that the U.S. Constitution's First Amendment, which protects free speech - including political free speech – had provided him with a shield for his activities. In the end, Assange signed his fake confession and is now a convicted felon. In that US court located in Saipan in the Marianas Islands, Assange was sentenced to the time he had already served in Belmarsh, the notorious UK prison, and walked free.

In The Nature of The Job

Yet arguably, what Assange did was what journalists are supposed to do on a daily basis: to hold governments to account for their uses, and abuses, of power. To quote from a joint letter in support of Assange published in November 2022 by leading media outlets (the New York Times, Der Spiegel, Le Monde, El Pais, the Guardian etc): “Holding governments accountable is part of the core mission of a free press in a democracy – obtaining and disclosing sensitive information – is a core part of the daily work of journalists.”

Moreover, there was a serious public interest in what Assange published on the Wikileaks platform. Among other things… an April 2010 video upload revealed the unlawful killing in Baghdad by an Apache helicopter gunship crew of 18 civilians (including two Reuters reporters)in a 2007 air strike, amid chortling by the crew responsible.

The Afghan War logs uploaded in July 2010 contained a near six-year archive (2004 – 2009) of internal information about the conduct of the war in Afghanistan, including revelations about the role of the Pakistan secret service and Iran in supporting the Taliban. In October 2010, the Iraq War logs contained nearly 400,000 documents, most of them field reports on military practice during the war in Iraq between 2004 and 2009.

Most of those important revelations were dwarfed by the release in late November 2010 of some 260,000 US diplomatic cables setting out in bald detail how the US conducted its global diplomacy between 1966 to 2010, including spying on the diplomats of allies and on top UN officials – UN Secretary-General Kofi Annan was among those spied upon by the US - and the amassing of the diplomats’ personal details, such as computer passwords, bank account details etc. As the prominent British journalist Andrew Cockburn pointed out in February this year:

Without [Wikileaks] we would have little idea of the number of civilians killed in Iraq and Afghanistan during the American invasion, or of the United States’ war crimes, such as the execution of eleven handcuffed people, including five children, in a 2006 raid on a house in Iraq. We would not know that Secretary of State Hillary Clinton was fully aware that Saudi Arabia was a source of “critical financial support” for the Taliban and Al Qaeda; or that the British government was misleading the public about its intentions for the former inhabitants of Diego Garcia, many of whom were displaced in the 1960s and 1970s to make way for an American base.

.... “It’s an archive of American diplomacy for those years,” said John Goetz, a former reporter for Der Spiegel who worked with Assange to publish documents. “Without WikiLeaks, we wouldn’t know any of that.”

Unforgivable. But the US (and the UK) chose to go after the messenger.

Journalism’s Orphan Child

As Cockburn also noted, most major mainstream media outlets – and even the international Committee To Protect Journalists (CPJ) - were reluctant to take up Assange’s cause. Cockburn quoted a CPJ statement in 2019 that had quibbled with the semantics of Assange’s exact role within the profession:

“After extensive research and consideration, CPJ chose not to list Assange as a journalist, in part because his role has just as often been as a source,” it reads, “and because WikiLeaks does not generally perform as a news outlet with an editorial process.”

Other smears sought to discredit the Wikileaks revelations on the basis of Assange’s personal ethics, and/or his ego. (Like architecture, journalism never admits people into its ranks who have difficult egos or dodgy personal ethics.) Without evidence, it was widely claimed and believed that Wikileaks had recklessly published unredacted details of individuals and informants, thereby putting their lives in peril.

In fact, Wikileaks went to considerable lengths to redact names and identifiable details. On the eve of the “Cablegate” release, Assange reportedly invited the US authorities (without success) to help in this redaction process, where it might be considered necessary. Moreover, on this point:

Immediately after the release of the Afghan logs, the Defense Intelligence Agency set up an Information Review Task Force under a senior intelligence officer, Robert Carr, that was tasked with assessing damage to the department’s operations. The team, up to 125 people working for ten months, sometimes seven days a week, pored over seven hundred thousand documents, reporting weekly to the highest levels of the Defense Department. Testifying at Chelsea Manning’s 2013 court-martial for leaking the cache to Assange, Carr, who had by then retired, reported that his team had discovered just one individual killed “as a result of the Afghan logs.” His source was none other than the Taliban, and the information was false.

Policies of Deterrence

Ultimately, and in the light of the belated groundswell of global support for Assange, it is possible that not even the Americans really wanted the Assange case to run its full course. It seems significant that the US response was always highly selective. In the UK, across Europe and within the US, successive US Presidents – Obama, Trump, Biden – never prosecuted the news outlets for publishing the Wikileaks revelations.

After all, taking the media Establishment head-on would have raised all of the freedom of the press/First Amendment issues that the White House has sought to avoid. Assange (by being an Australian citizen) and Manning (by being in the military) could be targeted.

And targeted they were. To deter anyone else from following in the footsteps of Manning and Assange, the US – with the help of docile authorities in the UK – pursued Assange for the best part of 15 years. Throughout, Assange and his lawyers treated various court proceedings in Sweden and in the UK on their merits, but also treated those legal process as being (consciously or otherwise) part of the wider US strategy of achieving his rendition.

All the same, Jennifer Robinson said yesterday, there is much to celebrate, regardless:

I hope that the fact that we have been able to free Julian Assange today against all of the odds and against one of the most powerful governments in the world will give hope to all journalists and publishers who are imprisoned around the world and we encourage everyone who stood to fight for Julian to continue the fight for him, and for all of those others in the hope that we can secure their future freedom too.

Footnote One: As mentioned, the Wikileaks “Afghan War” dump of material occurred in July 2010. A month later, a court in Sweden filed multiple charges against Assange alleging sexual assault and sexual molestation. The main sexual assault charge was downgraded on appeal in late 2010.

In 2011, an extradition order to Sweden – with the attendant risk of rendition to the US - seems to have been the main trigger for Assange to seek asylum in Ecuador’s tiny embassy in London, where he stayed for seven years. His physical and mental health deteriorated sharply during this confinement.

In 2015, the Swedish authorities dropped the sexual assault charges, mainly due to the expiry of the statute of limitations, but renewed their efforts to progress the sole remaining charge in 2019, in the same year that Assange left the Ecuadorian embassy. However, Sweden ultimately dropped the charge – reportedly due to the lack of evidence compounded by the passage of time, although the authorities continued to express their faith in the credibility of the complainant.

Footnote Two: From earlier this year, here’s s an interesting interview from El Pais with Stella Assange, Julian Assange’s Swedish/Spanish wife and mother of their two children. As she told El Pais: “This case has normalized brutalizing and intimidating journalists everywhere. Geopolitically, it’s very useful for repressive governments to use it as an example. It normalizes it, it lowers the bar for everyone.”

Footnote Three: As mentioned, because Julian Assange was an Australian citizen he did not qualify for any First Amendment free speech protections. He also received little apparent support from successive Australian governments. His treatment became typical of the harsh treatment of security information “offenders” by the Obama administration, which ended up prosecuting more security whistle-blowers than all other prior US administrations combined.

The offenders included NSA whistle-blower Thomas Drake prosecuted in 2010 for revealing NSA was in connection with the Trailblazer global surveillance project, originally known as Echelon, and which was the subject of Nicky Hager’s first book, Secret Power. A judge subsequently called the government's treatment of Drake “unconscionable.”

Also in 2010, Shamai Leibowitz, alarmed by an ill-judged Israeli airstrike against Iran, revealed US spying against Israeli diplomats to a blogger. She was sentenced to 20 months in jail, even though the sentencing judge confessed at the time: “I don’t know what was divulged other than some documents, and how it compromised things, I have no idea.”

Then there was Chelsea Manning, who was sentenced initially to 35 years in jail. She ended up serving nearly seven years in confinement until pardoned by Barack Obama on the eve of Obama leaving office. John Kiriakou was sentenced to 30 months in jail for revealing the existence of a CIA torture programme. Stephen Kim got 13 months in prison for telling a Fox reporter classified information about North Korea’s nuclear testing regime.

In the course of pursuing the Kim case, Obama’s Justice Department also secretly tracked Fox News journalist James Rosen, obtained his phone records, got a search warrant to see his personal emails and named him as a possible criminal conspirator [shades of Manning and Assange !] in the investigation of a news leak.

Finally, Edward Snowden revealed a secret law enabling the covert surveillance of multitudes of innocent US citizens by the NSA. He faces decades in prison for doing so and is still living in exile. On the other hand, Donald Trump’s cavalier handling of secret documents and his revelations of their contents to all and sundry has so far gone unpunished.

Prison Songs

There are a multitude of great prison songs – Leadbelly’s “Midnight Special” Bukka White’s “ When Can I Change My Clothes” and “Parchman Farm” come to mind. But this mournful prison song written by George Jones and sung by Stonewall Jackson is an example of why the revived Three Strikes legislation will not prevent crimes of impulse driven by the passion of the moment, and by a lifetime of deprivation:

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