Exclusive: The long legal ordeal of Julian Assange – and the continuing threats against the WikiLeaks founder – make a mockery of the West’s supposed commitment to press freedom and the public’s right to know, as Marjorie Cohn explains.
By Marjorie Cohn (Updated on May 30, 2017, to delete reference to Swedish prosecutors never submitting questions to Assange.)
Nearly five years ago, Ecuador granted WikiLeaks founder Julian Assange political asylum at its London embassy. The original purpose of the asylum was to avoid extradition to the United States. Two years earlier, Swedish authorities had launched an investigation of Assange for sexual assault. Sweden has now dropped that investigation.
Assange called the Swedish decision to end the investigation an “important victory for me and for the U.N. human rights system.” But, he said, the “proper war was just commencing,” because the London Metropolitan Police warned if Assange leaves the Ecuadorian Embassy, they would arrest him on a 2012 warrant issued after he failed to appear at a magistrate’s court following his entry into the embassy.
The original reason for granting asylum to Assange remains intact. The U.S. government has been gunning for Assange since 2010, when WikiLeaks published documents leaked by whistleblower Chelsea Manning. Those documents, which included the Afghan and Iraq war logs and U.S. State Department cables, were ultimately published in the New York Times, the U.K. Guardian, and the German magazine Der Spiegel.
The leaked reports exposed 20,000 deaths, including thousands of children, according to Assange. Many of them contain evidence of war crimes. [Among the leaked material was the “Collateral Murder” video, a gruesome view from the gun-barrel of a U.S. helicopter gunship as it mowed down a group of Iraqi men, including two Reuters journalists, as they walked on a Baghdad street – and then killing a man who stopped to help the wounded and also wounding two children in his van.]
It was never clear what role Sweden played in the Assange saga. Criminal charges were never filed there. The long delay in the process resulted, in part, because the Swedish prosecutor insisted that Assange travel to Sweden to be interviewed. Assange declined, fearing that if he went to Sweden, that country would extradite him to the United States.
The Swedish investigation of Assange may have been instigated at the behest of the United States. Journalist John Pilger documented political pressure by the U.S. government on Swedish authorities: “Both the Swedish prime minister and foreign minister attacked Assange, who had been charged with no crime. Assange was warned that the Swedish intelligence service, SAPO, had been told by its U.S. counterparts that U.S.-Sweden intelligence-sharing arrangements would be ‘cut off’ if Sweden sheltered him.”
Although the Swedish investigation has now been dropped, the threat of arrest persists. The London police have indicated they will arrest Assange for failure to appear in a London Magistrates Court if he leaves the embassy. Britain would then likely extradite Assange to the United States for possible prosecution.
Arresting Assange a U.S. ‘Priority’
Attorney General Jeff Sessions declared in April that arresting Assange is a “priority” for the Department of Justice, even though the New York Times indicated that federal prosecutors are “skeptical that they could pursue the most serious charges, of espionage.” The Justice Department is reportedly considering charging Assange with theft of government documents.
A decision to prosecute Assange would mark a 180-degree change of direction for President Trump. During the 2016 presidential campaign Trump declared, “I love WikiLeaks” after it published confidential emails from the Democratic National Committee that some U.S. intelligence agencies claim were obtained by Russian hackers (although Assange denies getting the material from Russia).
In March, WikiLeaks published CIA documents containing software and methods to hack into electronics. This was the beginning of WikiLeaks’ “Vault 7” series, which, Assange wrote in an op-ed in The Washington Post, contained “evidence of remarkable CIA incompetence and other shortcomings.”
The publication included “the agency’s creation, at a cost of billions of taxpayer dollars, of an entire arsenal of cyber viruses and hacking programs – over which it promptly lost control and then tried to cover up the loss,” Assange added. “These publications also revealed the CIA’s efforts to infect the public’s ubiquitous consumer products and automobiles with computer viruses.”
CIA Director Michael Pompeo called WikiLeaks “a non-state hostile intelligence service often abetted by state actors like Russia.”
Pompeo said, “We have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” Pompeo declared, “Julian Assange has no First Amendment privileges. He is not a U.S. citizen.”
But, the Supreme Court has long held that the Constitution applies to non-Americans, not just U.S. citizens. And, when the Obama Justice Department considered prosecuting WikiLeaks, U.S. officials were unable to distinguish what Wikileaks did from what the Times and Guardian did since they also published documents that Manning leaked. WikiLeaks is not suspected of hacking or stealing them.
A week before Trump fired FBI Director James Comey, Comey told the House Intelligence Committee, “WikiLeaks is an important focus of our attention.” He said the Justice Department’s position “has been [that] newsgathering and legitimate news reporting is not covered, is not going to be investigated or prosecuted as a criminal act,” adding, “Our focus is and should be on the leakers, not those [who] are obtaining it as part of legitimate newsgathering.”
But Comey said, “a huge portion of WikiLeaks’ activities has nothing to do with legitimate newsgathering, informing the public, commenting on important controversies, but is simply about releasing classified information to damage the United States of America.”
As Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, wrote at Just Security, Comey was drawing the line “not between leaking classified information and publishing it, but between publishing it for ‘good’ reasons and publishing it for ‘bad’ ones.”
And, “[a]llowing the FBI to determine who is allowed to publish leaked information based on the bureau’s assessment of their patriotism would cross a constitutional Rubicon,” Goitein wrote.
Other advocates for civil liberties also defended WikiLeaks as a news organization protected by the First Amendment. “The U.S. government has never shown that Assange did anything but publish leaked information,” Kenneth Roth, executive director of Human Rights Watch, told the Times.
Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project, stated in an interview with the Times, “Never in the history of this country has a publisher been prosecuted for presenting truthful information to the public.”
Assange’s Detention Called Unlawful
In 2016, following a 16-month investigation, the United Nations Working Group on Arbitrary Detention concluded that Assange’s detention by Britain and Sweden was unlawful. It stated, “[A] deprivation of liberty exists where someone is forced to choose between either confinement, or forfeiting a fundamental right – such as asylum – and thereby facing a well-founded risk of persecution.”
The U.N. group found, “Mr. Assange’s exit from the Ecuadorian Embassy would require him to renounce his right to asylum and expose himself to the very persecution and risk of physical and mental mistreatment that his grant of asylum was intended to address. His continued presence in the Embassy cannot, therefore, be characterized as ‘volitional’.”
Thus, the U.N. group concluded that Assange’s continued stay in the embassy “has become a state of an arbitrary deprivation of liberty,” in violation of the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights (ICCPR).
Alfred de Zayas, U.N. Independent Expert on the Promotion of a Democratic and Equitable International Order, told Consortiumnews, “What is at stake here is freedom to seek, receive and impart information and ideas of all kinds.” He cited Article 19 of the ICCPR, which guarantees the right to freedom of expression.
“Whistleblowers are key human rights defenders in the Twenty-first Century, in which a culture of secrecy, behind-closed-door deals, disinformation, lack of access to information, 1984-like surveillance of individuals, intimidation and self-censorship lead to gross violations of human rights,” said de Zayas, who is also a retired senior lawyer with the U.N. Office of the High Commissioner for Human Rights and former Secretary for the UN Human Rights Committee.
Moreover, the Johannesburg Principles of National Security, Freedom of Expression and Access to Information, issued in 1996, provide, “No person may be punished on national security grounds for disclosure of information if the public interest in knowing the information outweighs the harm from the disclosure.”
Even some mainstream news organizations that have been critical of WikiLeaks for releasing classified U.S. information have objected to the idea of criminal prosecution. A Washington Post editorial in 2010 entitled “Don’t Charge Wikileaks” said: “Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered.”
In the U.S. government’s continued legal pursuit of WikiLeaks, there is much more at stake than what happens to Julian Assange. There are principles of press freedoms and the public’s right to know. By publishing documents revealing evidence of U.S. war crimes, emails relevant to the U.S. presidential election and proof of CIA malfeasance, Assange did what journalists are supposed to do – inform the people about newsworthy topics and reveal abuses that powerful forces want concealed.
Assange also has the right to freedom of expression under both U.S. and international law, which would further argue for Great Britain dropping the failure-to-appear warrant and allowing Assange to freely leave the embassy and to finally resume his life.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website at http://marjoriecohn.com/ and follow her on Twitter https://twitter.com/marjoriecohn.