Assange case raises thorny questions
By Ivo Vegter
At face value, the UK court ruling that Assange may be extradited to the US on espionage-related charges, seems like a threat to press freedom. The case is more complicated than that, though.
Julian Assange’s near decade-long fight against extradition to the United States has suffered a major setback. An appeals court in the United Kingdom ruled that the US request for extradition, to stand trial on 18 charges of obtaining or disclosing national defence information, conspiracy of same, and conspiracy of committing computer intrusions, is valid.
Assange still has options left. He can appeal to the Supreme Court in the UK, and appeal again to the European Court of Human Rights. But he is coming ever closer to a reckoning with the Americans he enraged more than a decade ago.
Taken at face value, this is a blow to press freedom. Assange, an Australian journalist who founded WikiLeaks in 2006, is widely viewed as a pioneer of transparency, as a result of his efforts to publish leaks from whistle-blowers.
WikiLeaks rose to fame – or infamy – in 2010, when it published, in quick succession, a series of major internal US government leaks. These leaks, which included the so-called Afghan War Diaries, the Iraq War Logs, and a vast trove of diplomatic cables, prompted a criminal investigation into WikiLeaks and its founder, Assange.
While large parts of the leaks disclosed nothing illegal, buried within them were the germs of many momentous news stories, including evidence of serious war crimes by US-led Coalition forces and official lies about civilian casualties.
Some of the Afghan war documents were withheld at the request of the unnamed source, and the diplomatic cables were initially published in redacted form, before being leaked from WikiLeaks unredacted.
These leaks, collectively, represent the most significant trove of leaked documents since the Pentagon Papers were published by the New York Times and the Washington Post back in 1971.
In hiding
Another pioneer of journalism based on government leaks, Glenn Greenwald, worked with whistle-blower Edward Snowden to publish secret details of illegal US surveillance programmes. He wrote an excellent overview and history of the UK appeal court ruling from the Assange-did-nothing-wrong camp. It is essential reading, makes a great press freedom argument, and gives background that I need not rehash in much detail here.
It covers the lengthy time that Assange spent either hiding in the Ecuadorian embassy in London, having asked for and received asylum, or in Belmarsh Prison, after his asylum and Ecuadorian citizenship were revoked at the behest of the Trump administration.
Although one might have expected more leniency from the Biden administration, Assange had also infuriated the Democratic Party by leaking confidential emails showing that the party had rigged the 2016 presidential primaries against the socialist Bernie Sanders, and in favour of the eventual nominee, the corporatist Hillary Clinton.
So, while the original leaks disclosed the sins of the Bush administration, the Biden administration has tawdry reasons of its own to seek revenge against Assange.
Initially, the UK courts had resisted efforts by the US to extradite Assange, on the grounds that the treatment of national security prisoners in the US is inhumane, which would compromise Assange’s already fragile mental health and could lead to his suicide.
The judges have since accepted assurances by the US that they’d be nice, which seems surprisingly gullible, given that the US had plotted to illegally kidnap and even assassinate Assange.
The UK-based NGO, Article 19, named after the clause in the Universal Declaration of Human Rights that guarantees freedom of information, also considers the court ruling a blow to press freedom worldwide.
Said its executive director Quinn McKew: ‘The decision to extradite Mr Assange to the US to face espionage charges directly threatens media freedom. The US prosecution does no more and no less than criminalise those who gather news and expose serious human rights violations and crimes. The UK government should not support this. This judgment means that all those who pursue and reveal human rights abuses by the US and other powerful entities are now at serious risk of extradition and prosecution.’
Legitimate secrecy
However, there is another side to this argument, and that is that governments – and private entities, for that matter – do have legitimate reasons for keeping certain information secret. The need for secrecy in prosecuting wars is indisputable, and the need for confidentiality in diplomatic business is also uncontroversial. Secrecy literally saves lives.
There is, therefore, a legitimate case to be made that people who have security clearance but violate that trust, ought to be prosecuted.
On the other hand, holding governments (and companies, and people) accountable means that whistle-blowers who reveal evidence of wrongdoing ought to be protected from both prosecution and vengeance.
It is harder to make the argument that journalists who publish once-secret information ought to be prosecuted. After all, they never agreed to keep it secret, and they didn’t violate the secrecy.
If one journalist doesn’t publish, the next will, as happened with the Pentagon Papers. Once a document has been leaked, it is hard to supress it. And, as Justice Black opined in the Pentagon Papers case, ‘Only a free and unrestrained press can effectively expose deception in government.’
On this basis, we could conclude that Assange indeed did nothing that ought to be criminal, unlike his sources (whom he, of course, has every right to protect).
Hating WikiLeaks
When the embassy cables were first published on WikiLeaks in 2010, I wrote that one day, we’d all hate WikiLeaks. I don’t think that prediction came true, since most people still seem to love WikiLeaks, but my qualms remain:
‘The “leaks” for which WikiLeaks has become infamous are not of the specific, whistle-blowing kind. They are wholesale disclosures, including many confidential and secret documents. While the organisation claims to exercise some editorial control over the releases, redacting names of people whose lives might be endangered, and omitting in this case documents classified as “top secret”, there’s not much that is sacred.
‘Anyway, all it will take to shed the remaining fig leaves is a competitor with fewer qualms than those to which Julian Assange professes.
‘It is the end of secrecy, of confidentiality and of privacy.’
I sought to distinguish between real evidence of malfeasance, fraud, or corruption, the disclosure of which should always be protected, and other information that its owners have a legitimate right to keep secret.
We have seen, after all, that lying governments are not the only victims of leaks. The vast majority of the Panama Papers of 2016 and the Pandora Papers of 2021 consists of private information that exposes no wrongdoing at all.
Like the war logs or the embassy cables, these disclosures ought to have been edited to contain only information that implicated people, companies or governments in criminal misconduct. That is what whistle-blowing is.
Revealing secret or confidential information that does not implicate anyone in wrongdoing is not whistle-blowing. That is simply a violation of privacy or legitimate confidentiality.
Exemplary
Although Greenwald has come out in support of Assange, his own work with Snowden was a lot more circumspect. It disclosed only what was necessary to expose illegal surveillance, and little more. I think that approach was exemplary on the part of Greenwald, and ought to be considered mitigating, or even exculpatory, in any future espionage prosecution of Snowden.
If I, as a journalist, obtain your personal financial information, someone at your bank violated your privacy. Once I do obtain it, however, do I have the right to publish it?
Perhaps, if it contains evidence of criminal activity. But if it doesn’t implicate you, it strikes me as deeply unethical – and likely illegal – to disclose your private information.
So, the Assange question is not as simple as saying ‘it’s a blow to press freedom’. To the extent that he published evidence of illegal activity, he should absolutely be protected, as should his whistle-blowing sources.
Collateral damage
The question is what else he disclosed when he dumped millions of unscrutinised documents online. Did that constitute a justifiable violation of secrecy or privacy, or was it just ‘collateral damage’?
If we are to hold governments accountable for the collateral damage in war, can we just ignore the collateral damage of wholesale leaks of the kind that Assange champions?
If we can’t, the question becomes who ought to be held accountable for that collateral damage. To my mind, the person who agreed to keep the information secret and violated that undertaking ought be held civilly and/or criminally liable for any disclosures that do not constitute incriminating evidence and therefore fall under the whistle-blowing exception.
Once the information had been leaked, however, should it be merely unethical, or should it be criminal, to publish such leaks wholesale instead of publishing only incriminating evidence?
Hesitantly, I’d go with unethical, rather than criminal, although journalists ought to be aware of and accountable for the physical, financial, reputational and psychological damage that such disclosures can do.
So, although Assange is a hero to many, he is not blameless.
However, I do think he has suffered enough. It would be a great boon to worldwide press freedom if the UK and the US would set an example to more repressive governments by extending leniency, and even a pardon, to Assange.
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