August 6, 2018 • 18
Comments
Memorandum for: The US
Embassies of Ecuador and the United Kingdom, and the U.S. State Department
From: Veteran Intelligence
Professionals for Sanity
Subject: Humanitarian
Asylum for Julian Assange
For six years, WikiLeaks
editor Julian Assange has been effectively imprisoned without charges at
Ecuador’s London embassy. In that time, two international courts and dozens of
respected legal and human rights organizations have decried actions of the UK,
US and Swedish governments that confine the journalist in what now amounts to
torturous isolation, deprived of space, sunlight, visitors, communication with
the outside and necessary medical care.
The catalyst was an arcane
effort by the Swedish government to extradite Assange for questioning about
claims of sexual improprieties.1 The UK government subsequently arrested
Assange and released him on bail.2 Ecuador granted Assange asylum at its
embassy based on concerns he could be extradited to the US where he would not
receive a fair trial and could receive a death sentence.3 (Former Obama
DOJ spokesperson Matthew Miller has acknowledged that US officials intended to
arrest Julian Assange but decided against it because of the expected impacts on
press freedom.)4
The UK government threatens to
arrest Assange if he leaves the embassy for “not surrendering at bail” and
refuses to rule out extradition to the US.5 Under a new president, Ecuador
has cut off Assange’s communications with the outside world.
Experts Criticize Treatment of
Assange
In June, 2014, The National
Lawyers Guild and 59 human rights and legal organizations petitioned the United
Nations to act on violations of Assange’s “fundamental human rights.” In
addition, “33 union, human rights, media and civil society organizations”
petitioned the Human Rights Commission in Geneva on behalf of freedom for
Assange. Reports submitted by the groups identified “numerous systematic deficiencies
in Swedish pre-trial procedures like the routine placement of persons who have
not been charged with any crime in indefinite, isolated, or unexplained
pre-charge detention.”6
In February 2016, the UN
Office of the High Commissioner for Human Rights (OHCHR) concluded that
Assange’s situation constitutes “arbitrary detention” and violates both the
Universal Declaration on Human Rights and the International Covenant on Civil
and Political Rights.7 Assange’s Swedish lawyer, Per Samuelson, told The
Guardian, 4 Feb 2016, “If he is regarded as detained, that means he has served
his time, so I see no other option for Sweden but to close the case.”8
Another year would pass,
however, before Sweden dropped its investigation, after finally consenting to
interview Assange at the embassy.9 Recently obtained emails show that
Sweden would have dropped the case years earlier but for pressure from UK
authorities.10 In summary, Assange has been confined for six years over
allegations that never resulted in charges, much less a criminal conviction.
On July 12, 2018, the
Organization of American States’ (OAS) Inter-American Court of Human Rights
(IACHR) sent out a ruling11 that was virtually unnoticed by US news media.
The IACHR found “it is the duty of nations to allow for the passage of
successful asylum seekers from embassies to the mainland territory of the state
that has granted an individual asylum.”
For Julian Assange, this would
mean that, according to the Court’s decision, Britain has a legal obligation to
allow Julian Assange to exit the Ecuadorian Embassy in London in peace and
allow for his safe transit to an airport from which he would be able to fly to
Ecuador, the country that has granted Assange asylum and where he now also
holds formal citizenship12
“[I]t is imperative,” the
ruling states, “that Assange is allowed to make the safe passage to Ecuador
demanded by the Court as his physical and mental health conditions have been
described as deteriorating rapidly. If, nevertheless, UK authorities insist on
arresting Assange, “the British government will have wantonly failed to uphold
Assange’s rights as a legitimate receiver of asylum by Ecuador.”13
The IACHR ruling suggests
further that outright abuses occurred when Ecuador removed security assigned
for Assange;14 when the UK rejected Ecuador’s request for safe passage of
Assange to Ecuador15; and when the US obstructed efforts to end Assange’s
virtual imprisonment.16
Mistaken Assumptions Underlie
Government Policies
President Trump’s Attorney
General Jeff Sessions hinted at a crackdown on the press.17 Secretary of
State Mike Pompeo called Wikileaks a “non-state, hostile intelligence service”
that is often “abetted by state actors like Russia.”18 Pompeo laments the
“hero worship” of NSA whistleblower Edward Snowden and suggests harsh measures
would prevent future “leaks” of classified information. But, it is government
persecution, not the lack of it, that gives truth-tellers hero status. Also,
what truly upsets senior intelligence officials is not (frequently condoned)
“leaking” but blowing the whistle on government wrongdoing.
Harsh measures do not deter
individuals with strong moral convictions from whistleblowing. Instead, these
motivate potential whistleblowers to find more creative avenues for disclosure.
Edward Snowden, for example, was well aware of the US government’s brutality
toward Thomas Drake, who used “official channels” to express concerns about the
legality of NSA surveillance activities. Drake’s experience, Snowden says, were
his inspiration. “It’s fair to say,” Snowden said, “if there hadn’t been a
Thomas Drake, there couldn’t have been an Edward Snowden.”19
Similarly, despite the
bullying of Julian Assange, new websites have appeared that draw inspiration
from WikiLeaks.20Should the US take custody of Assange and prosecute him like
Drake, they could find success elusive in the opinion of Harvard Law professor
Jack Goldsmith.
“The most relevant law, the
Espionage Act, is famously overbroad and thus an uncertain basis for
prosecution,” observed Goldsmith. “This is one reason the government has never
successfully prosecuted a member of the media for soliciting or publishing
classified information. Nor has the government ever successfully prosecuted a
non-media organization for solicitation or receipt of classified information.”21
“Failing in the effort would
make the United States look even more ineffectual than it does as a result of
the leaks,” Goldsmith concluded.
A successful prosecution could
have worse consequences. With little that distinguishes Wikileaks’ activities
from those of mainstream news gatherers22, a dangerous legal precedent would be
established. Journalists employed by major newspapers that also published
government secrets, including some of the same secrets published by Wikileaks,
could be imprisoned by any administration with animosity toward the press. The
impacts of prosecuting Assange would ripple around the world as officials in
other governments followed the most powerful nation’s example. With no means of
holding governments accountable, despotism would proliferate, triggering
cascading crises and worldwide disruption.
UN human rights expert Alfred
de Zayas observes that “Order depends on the consistent and uniform application
of international law.”23
Governments could simply
ignore the court directives on Assange’s asylum rights; but that too carries
risks, undermining efforts by those countries to support dissidents of their
choosing. Potentially, in the future, the diplomatic privileges of UK, US and
Ecuadorian diplomats could also come under assault.
A Fork in the Road
Collectively, the governments
of Sweden, the UK, the US, Ecuador (recently) and, through its silence,
Assange’s home country of Australia have imposed six years of suffering on
Assange and possibly life-long damage to his health. With their proxies, they pound
Assange with threats, ad hominem attacks and misleading statements. He cannot
defend himself because the government of Ecuador terminated his access to
communications systems. This may have a temporary effect of confusing the
public; but as more legal experts and human rights authorities hazard coming to
his defense, the public may recognize these assaults as the desperate flailings
of governments that lack credible defenses for their actions.
Public dissatisfaction with
governments worldwide is currently high, as evidenced by numerous massive
street protests, passages of referendums against centralized power, and
wide-spread elections of anti-establishment candidates. Any additional erosion
of public support risks a tipping point with unforeseeable consequences.
Brutality against Julian Assange, particularly as his health declines, can only
increase his stature as a journalist, enshrine his popular global status as a
martyr for freedom, and effectively undermine support for his persecutors.
The involved governments have
arrived at a fork in the road. They can continue the persecution of Assange,
risking catastrophe for diminishing returns. Or, they can let Assange proceed
to Ecuador, or home to Australia if it provides suitable guarantees,24 and
boost their public standing as self-described supporters of human rights, the
rule of law, and a free press.
We the undersigned members of
Veteran Intelligence Professionals for Sanity urge all governments to honor the
OHCHR and IACHR directives with respect to Julian Assange and other asylum
seekers.
For the Steering Group,
Veteran Intelligence Professionals for Sanity (VIPS)
William Binney, Technical
Director, NSA; co-founder, SIGINT Automation Research Center (ret.)
Richard H. Black, Senator
of Virginia, 13th District; Colonel US Army (ret.); Former Chief, Criminal Law
Division, Office of the Judge Advocate General, the Pentagon (associate VIPS)
Marshall Carter-Tripp, Foreign
Service Officer (ret.) and Division Director, State Department Bureau of
Intelligence and Research
Bogdan Dzakovic, former
Team Leader of Federal Air Marshals and Red Team, FAA Security (ret.)
(associate VIPS)
Philip Giraldi, CIA,
Operations Officer (ret.)
Mike Gravel, former
Adjutant, top secret control officer, Communications Intelligence Service;
special agent of the Counter Intelligence Corps and former United States
Senator
Matthew Hoh, former
Capt., USMC, Iraq & Foreign Service Officer, Afghanistan (associate VIPS)
Larry C. Johnson, former
CIA and State Department Counter Terrorism officer.
Michael S. Kearns, Captain,
USAF (ret); Wing Commander, RAAF (ret); Intelligence Officer and Master
SERE Instructor
John Kiriakou, Former CIA
Counterterrorism Officer and former senior investigator, Senate Foreign
Relations Committee
Karen Kwiatkowski, former
Lt. Col., US Air Force (ret.), at Office of Secretary of Defense watching the
manufacture of lies on Iraq, 2001-2003?
Linda Lewis, WMD
preparedness policy analyst, USDA (ret.) (associate VIPS)
Edward Loomis, NSA,
Cryptologic Computer Scientist (ret.)
Ray McGovern, former US
Army infantry/intelligence officer & CIA analyst (ret.)
Elizabeth Murray, Deputy
National Intelligence Officer for Near East, CIA and National Intelligence
Council (ret.)
Todd E. Pierce, MAJ, US
Army Judge Advocate (ret.)
Coleen Rowley, FBI
Special Agent and former Minneapolis Division Legal Counsel (ret.)
Kirk Wiebe, former Senior
Analyst, SIGINT Automation Research Center, NSA
Sarah G. Wilton, Intelligence
Officer, DIA (ret.); Commander, US Naval Reserve (ret.)
Robert Wing, former
Foreign Service Officer (associate VIPS)
Ann Wright, Col., US Army
(ret.); Foreign Service Officer (resigned)
Endnotes
1 Marchand & Schaus.
European Court of Human Rights. 2016. www.ecchr.eu Accessed 2 Aug 2018.
2 BBC News. “Julian
Assange in the Ecuadorian embassy: Timeline.” 30 Jul 2018. www.bbc.com Accessed
2 Aug 2018.
3 Wallace, Arturo.
“Julian Assange: Why Ecuador is offering asylum.” BBC News, 16 Aug
2012.
4 Greenberg, Andy. “The
US Charging Julian Assange Could Put Press Freedom on Trial.” Wired, 20
Apr 2017.
5 The Telegraph. “Arrest
warrant for Julian Assange still valid.” 6 Feb 2018
6 National Lawyers Guild.
“NLG and Nearly 60 International Organizations Urge UN to Remedy Human Rights
Violations in Pre-Charge Detention of Julian Assange.” 19 Jun 2014
7 United Nations. UN
News, 5 Feb 2016.
8 Addley, Bowcott, Elgot,
Farrell & Crouch. “Julian Assange is in arbitrary detention, UN panel
finds.”
The Guardian. 4 Feb 2016
9 BBC News. “Julian
Assange in the Ecuadorian embassy: Timeline.” 30 Jul 2018. www.bbc.com Accessed
2 Aug 2018.
10 Bowcott &
MacAskill.“Sweden tried to drop Assange extradition in 2013, CPS emails
show.” The Guardian,11 Feb2018.
11 Inter-American Court
of Human Right. “Advisory Opinion on the institution of asylum and its
recognition as a human right in the inter-american system of protection.”
[press release] 12 Jul 2018.
http://www.corteidh.or.cr/docs/comunicados/cp_28_18_eng.pdf
12 Garrie, Adam. “Julian
Assange Scores Major Legal Victory as Court Orders Safe Passage of Wikileaks
Founder Out of Embassy.” EurasiaFuture, 13 Jul 2018.
13 Ibid.
14 “Ecuador orders
withdrawal of extra Assange security from embassy in London.” Reuters, 7
May 2018
15 Saul, Heather. “Julian
Assange: British Government denies Ecuadorian request for ‘safe passage’ to get
Wikileaks founder to a hospital.” The Independent, 15 Oct 2015.
16 Solomon, John. “How
Comey Intervened To Kill Wikileaks’ Immunity Deal.” The Hill, 25 Jun 2018.
17 Ainsley, Julia
Edwards. “Trump administration goes on attack against leakers, journalists.” Reuters. 4
Aug 2017
18 Milman, Oliver. “Trump
CIA director blames ‘worship of Edward Snowden’ for rise in leaks.” The
Guardian, 24 June 2017.
19 AJ Plus. “Exclusive:
Edward Snowden on the man who inspired his work.” (video) 5 Aug 2015.
20 Reitman, Rainey. “Will
the rise of WikiLeaks competitors make whistleblowing resistant to
censorship?” Electronic Frontier Foundation. 6 Feb 2011.
21 Goldsmith, Jack. “Why
the U.S. shouldn’t try Julian Assange.” Washington Post, 11 Feb 2011.
22 ”Quite simply, our
motive is identical to that claimed by the New York Times and The Post — to
publish newsworthy content,” Assange wrote in a recent op-ed in The Washington
Post. “Consistent with the U.S. Constitution, we publish material that we can
confirm to be true irrespective of whether sources came by that truth legally
or have the right to release it to the media. And we strive to mitigate
legitimate concerns, for example by using redaction to protect the identities
of at-risk intelligence agents” (CNN, 21 May 2017).
23 UN Office of the High
Commissioner for Human Rights. “UN rights expert urges the UK and Sweden to
give good example to the world and implement the Assange ruling.” 15 Feb 2016.
Retrieved on 1 Aug 2018 from www.ohchr.org.
24 Murdock, Jason.
WikiLeaks: Australia has ‘obligation’ to protect Julian Assange, Lawyer
says.” Newsweek. 1 Aug 2018.
No comments:
Post a Comment