The second indictment of the
Wikileaks co-founder seems designed to force the British to deny extradition.
If not, it’s madness
WikiLeaks founder Julian Assange today
sits in the Belmarsh High Security prison in southeast London. Not just for his
sake but for everyone’s, we now have to hope he’s never moved from there to
America.
The United States filed
charges against Assange early last month. The case seemed to have been designed to
assuage fears that speech freedoms or the press were being targeted.
That specific offense was “computer hacking conspiracy” from back in 2010. The “crime”
was absurdly thin, a claim that Assange agreed (but failed, apparently) to try
to help Chelsea Manning develop an administrative password that could have
helped her conceal identity as she downloaded secrets. One typewritten phrase,
“No luck so far,” was the damning piece of evidence.
The troubling parts of that
case lurked in the rest of the indictment, which seemed to sell normal
journalistic activity as part of the offense. The government complained that
Assange “took measures to conceal Manning as the source of the disclosure.”
Prosecutors likewise said,
“Assange encouraged Manning to provide information and records from departments
and agencies of the United States.”
The indictment stressed
Assange/Manning were seeking “national defense information” that could be “used
to the injury of the United States.” The indictment likewise noted that the
pair had been guilty of transmitting such information to “any person not
entitled to receive it.”
It was these passages that
made me nervous a month and a half ago, because they seemed to speak to a
larger ambition. Use of phrases like “national defense information” given to
persons “not entitled to receive it” gave off a strong whiff of Britain’s Official
Secrets Acts, America’s Defense
Secrets Act of 1911 (which prohibited “national defense” information
going to “those not entitled to receive it”) and our Espionage
Act of 1917, which retained many of the same concepts.
All of these laws were written
in a way that plainly contradicted basic free speech protections. The Espionage
Act was revised in 1950 by the McCarran Internal Security Act, sponsored by Nevada Senator
Pat McCarran (who incidentally was said to be the inspiration for the
corrupt “Senator Pat Geary” character in The Godfather). The
change potentially removed a requirement that the person obtaining classified
information had to have intent to harm the country.
There was a way to read the
new law that criminalized what the Columbia Law Review back in 1973
(during the Pentagon Papers controversy) called the “mere retention”
of classified material.
This provision buried in
subsection 793 of the Espionage Law has, since passage, been a ticking time
bomb for journalism. The law seems clearly to permit the government to
prosecute anyone who simply obtains or receives “national defense” information.
This would place not only sources who steal and deliver such information at
risk of prosecution, but also the journalists who receive and publish it.
If the government ever decided
to start using this tool to successfully prosecute reporters and publishers,
we’d pretty quickly have no reporters and publishers.
I’m not exaggerating when I
say virtually every reporter who’s ever done national security reporting has at
some time or another looked at, or been told, or actually received copies of,
“national defense” information they were technically “not entitled to receive.”
Anyone who covers the
military, the intelligence community, or certain congressional committees, will
eventually stumble – even just by accident – into this terrain sooner or later.
Even I’ve been there, and I’ve barely done any reporting in that space.
This is why the latest
indictment handed down in the Assange case has been met with almost universal
horror across the media, even by outlets that spent much of the last two years denouncing
Assange as a Russian cutout who handed Trump the presidency.
The 18-count indictment is an authoritarian’s dream, the
work of attorneys who probably thought the Sedition Act was good law and the
Red Scare era Palmer raids a good start. The “conspiracy to commit computer
intrusion” is there again, as the 18th count. But counts 1-17 are all
subsection 793 charges, and all are worst-case-scenario interpretations of the
Espionage Act as pertains to both the receipt and publication of secrets.
Look at the language:
Count 1: Conspiracy to Receive National
Defense Information.
Counts 2-4: Obtaining National
Defense Information.
Counts 5-8: Obtaining National
Defense Information. And so on.
The indictment is an insane
tautology. It literally charges Assange with conspiracy to obtain secrets for
the purpose of obtaining them. It lists the following “offense”:
To obtain documents, writings,
and notes connected with the national defense, for the purpose of obtaining
information respecting the national defense…
Slowly – it’s incredible how
slowly – it is dawning on much of the press that this case is not just an
effort to punish a Russiagate villain, but instead a deadly serious effort to
use Assange as a pawn in a broad authoritarian crackdown.
The very news outlets that
have long blasted Donald Trump for his hostility to press freedoms are finally
coming around to realize that this case is the ultimate example of all of their
fears.
Hence even the Washington
Post, no friend of Assange’s of late, is now writing this
indictment could “criminalize investigative journalism.” CNN wrote, “What is at stake is journalism as we know it.”
This indictment is so awful,
in fact, that CNN’s contributor, lawyer Alexander Urbelis, seemed convinced it
was written to give the British an out, “designed to ensure that Assange is not
extradited to the United States.”
His thesis is that Assange at
trial would be able to embarrass the Trump administration. It would do this by
highlighting the fact that Trump was saying salutary things about WikiLeaks in
2016, and perhaps also by disclosing other matters pertaining to the DNC leaks.
“Seen in this light,” he
wrote, “the damage to the freedom of the press may be the foreseeable but
unintentional collateral damage of squashing the chances of an Assange trial.”
I’m not sure I buy this. This
seems to me like another example of outside observers giving the Trump White
House credit for playing 4D chess when it isn’t. It seems more likely this is a
genuine effort to expand the ability of the U.S. government to put a vice-grip
on classified information, scare whistleblowers into silence, and scare the
pants off editors across the planet.
The Assange case is more than
the narrow prosecution of one controversial person. This is a crossroads moment
for the whole world, for speech, reporting, and transparent governance.
It is happening in an era when
the hegemonic U.S. government has been rapidly expanding a kind of
oversight-free zone within its federal bureaucracy, with whole ranges of
activities – from drone killings to intelligence budgets to surveillance –
often placed outside the scope of either congress or the courts.
One of the few outlets left
that offered any hope of penetrating this widening veil of secrecy was the
press, working in conjunction with the whistleblower. If that relationship is
criminalized, self-censorship will become the norm, and abuses will surely
multiply as a result.
Add to this the crazy fact
that the Assange indictment targets a foreigner whose “crimes” were committed
on foreign soil, and the British government now bears a very heavy
responsibility. If it turns Assange over to the United States and he is
successfully prosecuted, we’ll now reserve the right to snatch up anyone,
anywhere on the planet, who dares to even try to learn about our secret
activities. Think of all the ways that precedent could be misused.
Britain is in a box. On the
one hand, thanks to Brexit, it’s isolated itself and needs the United States
more than ever. On the other hand, it needs to grow some stones and stand up to
America for once, if it doesn’t want to see the CIA as the World’s
Editor-in-Chief for a generation. This case is bigger than Assange now, and
let’s hope British leaders realize it.
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