JOE LAURIA: Why the US Let Assange Go

The Consortium News editor examines the cumulative factors that led to the United States releasing WikiLeaks publisher Julian Assange from prison.

These are remarks given in a speech in Sydney, Australia on July 7. The text, with additional material, follows.

JOE LAURIA, Editor-in-Chief, Consortium News: I tell you, it hasn’t really sunk in yet. It’s hard to believe because for so long, most of us thought he would wind up for the rest of his life in an American dungeon and die there. 

And why did we think that? Because we saw so many irregularities in this case that judges in Britain let go. For example, the spying, the 24-7 spying directly through the C.I.A., the fact that the spying included on his privileged conversations with his lawyers, his doctors examining him. This was the government that was prosecuting him, the intelligence agency of that government was spying on the communications he was having with his lawyers.

Any other case that would have been thrown out immediately. And this wasn’t. The British courts kept accepting all of these irregularities, and you couldn’t help but think this was a political case completely from the very beginning.

For example, Judge Vanessa Baraitser in the lower court in the extradition case, September 2020, she ruled he should not be extradited for health reasons, but agreed with all the other arguments of the United States, who then won on appeal to reverse her decision.

She ruled that the First Amendment guarantees that were required by the European Convention on Human Rights, to which British extradition law is bound, that that would be settled in the U.S.

Had she asked the U.S. then for an assurance on the First Amendment and not gotten one — which happened just a few months ago — this case could have ended four years ago.  [See: Assange Wins Right to Appeal on 1st Amendment Issue]

[In April the High Court of England Wales set a deadline for the U.S. to give an assurance that Assange would be allowed a free speech defense at trial in the United States in accord with the European Convention on Human Rights, which forms the basis of British extradition law. The U.S. failed to produce such an assurance, leading ultimately to Assange’s freedom.]

But nonetheless, this is a victory. One of those rare victories that you don’t think you’re going to win. And this reminds me of a quote from I.F. Stone, an American independent journalist, starting in the 1940s and 50s, very famous. And he said, quote,

“The only kind of fights worth fighting are those you’re going to lose because somebody has to fight them and lose and lose and lose until someday somebody who believes as you do wins.”

And this is what happened. So this is a lesson about when the odds seem completely against us, but you keep speaking what you believe in, keep organizing against it, and you might just win.

And this was, of course, a deal that was in the works for at least nine months, the plea agreement. And I want to ask why?

Why did it happen? Why did it happen now, finally? Well, there’s a lot of reasons. Certainly pressure from world leaders like Obrador, the president of Mexico, spoke directly with Biden and Lula and other leaders, including, kicking and screaming come into this: [Australian Prime Minister] Anthony Albanese. He did not really want to say much about this. He kept putting it off.

[Foreign Minister] Penny Wong said, well, we can’t interfere in the judicial processes of foreign nations, even though Australia had done that at least three times to get back people from Iran and Egypt and Cambodia.

So it was total rubbish. And finally, Albanese, did bring it up with President Biden. [He says for the first time at the June 2022 NATO summit in Madrid.]

But I don’t think that was the deciding factor at all. There was also, of course, human rights groups, press freedom groups all over the world who eventually joined this fight. And of course, public pressure from activists like all of you here, this all worked together to bring this about.

But there was one decisive factor. And that was the United States realized around April 4th this year, just a couple months ago, that they were going to lose this appeal in the High Court in London. Now, how do we know this, that they were going to lose? Because The Washington Post reported that on April 4th, there was an email.

And the email I’m quoting from The Washington Post from last week: “‘The urgency here has now reached a critical point,’ the Justice Department trial attorney wrote, in an email reviewed by The Washington Post. ‘The case will head to appeal and we will lose.’”

Back to the DOJ in Washington. The urgency has reached a critical point. Quote, “the case will head to appeal and we will lose.”

April 4 was 12 days before the deadline given to the U.S. to produce the assurance guaranteeing free speech rights to Assange. 

That’s what the U.S. trial attorney told the Department of Justice on April 4th, because they knew they could not deliver the assurance about First Amendment protection for Assange [because of an earlier Supreme Court decision and because U.S. separation of powers does not allow the executive to make a such a decision], without which the British court could not extradite him. As I said, that could have been done four years ago by Baraitser. But it wasn’t. But this is what sprung him.

They could not satisfy that demand of the court. And that was exactly the reason why we learned from this Washington Post article that the British lawyers for the U.S., James Lewis QC, now KC, and Claire Dobbin, they actually said this from another email: “Without the First Amendment assurance, one trial attorney said in an email, the British lawyers representing the U.S. government concluded they would run into ‘an ethical obligation to drop the case’ because of ‘their duty of candor’ — they could no longer argue for extradition when a condition required by the court had not been met.”

They could no longer argue for extradition when a condition required by the court had not been met, the condition being the First Amendment assurance. So the British lawyers were going to quit. The British lawyers would not go forward and represent the U.S. government in this appeal. The United States was left with nothing to do but salvage something.

They did not drop the case. They moved on a plea agreement that had been lying there on the desk of an assistant attorney general in Washington, a deal that had been worked on for nine months. They moved on this at the last minute.

[Biden had said as vice president in December 2010 that the U.S. could not indict Assange without catching him stealing the documents. If he had passively received the documents as a journalist they could not indict him. The F.B.I. then cooked up a scheme to enter Iceland to try to frame Assange there, but the plot was uncovered and the F.B.I. was thrown out.

Obama-Biden then did not indict, the Trump administration did after WikiLeaks‘ C.I.A. releases. Biden was under pressure until the end no doubt from the C.I.A. and the DNC, after the DNC leaks, not to drop the case, even though Assange was not indicted for either leak. Only the prospect of losing the appeal led the Biden administration to give in to the pressure and conclude the deal.] 

And I want to add this. If he had been extradited to the United States, to the court in the Eastern District of Virginia, in Alexandria, Virginia, where I live, eight minute drive away from there — I am very glad I don’t have to make that drive to his trial — they would have lost in the U.S. because everything in the indictment is gone from this plea deal. There’s no longer a hacking allegation. There’s no longer talk about him endangering informants, which is all we heard in the extradition case from Lewis and the others ad nauseum that he put people in danger. It’s gone. It’s gone. The only thing he had to plead to was something he technically did do wrong.

As he said in court in Saipan, he honestly pled guilty to unauthorized possession or a conspiracy [with Chelsea Manning] to commit unauthorized possession and dissemination of defense information, which the Espionage Act, as it is now written, does make illegal. [See: Assange: I Broke the Law But the Law Is Wrong]

It’s not illegal only for government officials who sign non-disclosure agreements when they handle classified information, it applies to everyone. And this is the problem with the Espionage Act.

That part of it is clearly unconstitutional against the U.S. First Amendment. When you sign the NDA, you’re signing away your First Amendment rights. But a journalist, even an American one, a British one, an Australian one has not signed a non-disclosure agreement with the U.S. government.

They have every right to receive that information and publish it even though the law is written that way.

That’s [arresting a journalist for possession and dissemination] always been an option for U.S. governments. This was only the third time that a U.S. administration tried to indict the publisher of information. The first was FDR in 1942 against The Chicago Tribune. They published a story saying that the U.S. had broken the Japanese code in the Battle of Midway. The second time was Richard Nixon in ’72. He tried to go after The New York Times reporters for publishing the Pentagon Papers.

They couldn’t exercise prior restraint or censorship. They couldn’t stop The New York Times from publishing, the U.S. Supreme Court ruled. But once they did publish, the U.S. had the option of indicting a journalist.

And both times it collapsed: in Chicago with the Tribune the grand jury refused to indict, very likely because of the First Amendment. And in Boston, for the Pentagon Papers case, it was discovered that the F.B.I. had been tapping Dan Ellsberg’s phone and therefore also The New York Times reporters, because they were speaking to him on the phone. So the case collapsed. [The way C.I.A. spying on Assange in the embassy should have collapsed his case, but didn’t.]

This is the only time a journalist was successfully indicted, but they couldn’t go through with it because, again, the First Amendment stopped them. So what we need here is that that part of the Espionage Act be appealed, to go to the Supreme Court in the United States and to say to the judge that this is unconstitutional.

The Supreme Court in the U.S. is a constitutional court. It could decide this is unconstitutional and order the Congress to change the law. And right now, there are amendments put forward by Rashida Talib, a congresswoman from Michigan, who put forward amendments to the law that, among other things, would differentiate between journalists and those government officials who signed a non-disclosure agreement.

But it appears that’s not going to happen. One bad thing about the plea agreement is Julian agreed to waive his right to appeal. They got that from him in exchange for his freedom and his admission that he’d broken that technical clause. And by the way, in the court, he said, he thought the First Amendment protected him. So he was saying, yes, I broke the law, but the law is unconstitutional. 

That’s what he said. The law needs to be changed, but he cannot appeal. And it seems he also signed away any right to sue the U.S. government, because an option would be a civil lawsuit against the United States to say that he was wrongly brought to this plea agreement because the Espionage Act breaks the law. As it’s written, the Espionage Act is wrong, it is unconstitutional.

So he can’t do any of that. Funny enough, if you read the agreement, the judge in the court on the North Mariana Islands said the deal was that the U.S. government agreed if she didn’t accept the plea and dismissed it, that he would walk free and he wouldn’t have had any conviction, as he now has.

So she accepted the plea deal. He’s free and well, let’s just hope that he’s free and safe in Australia, because [Foreign Minister] Penny Wong gave this warning. Or was it just a bone thrown to the opposition, which was making a big deal that Albanese called Assange, the first person to call him? It’s pure politics.

Penny Wong said this: “We have laws in Australia in relation to national security information. We expect those laws to be observed by all citizens and by all entities. That’s our position.” Julian has to be careful.

A journalist here can be prosecuted for publishing information in Australia, as we saw almost in the case of Dan Oakes at the ABC.

The last thing I’m going to say is two men that I had great pleasure in knowing, who were on the board of Consortium News and who worked so hard for Julian to be free, unfortunately, we lost both of them last year. I just want to remember John Pilger and Dan Ellsberg. Thank you.