Monday, April 15, 2019
Why the Prosecution of Julian Assange Is Troubling for Press Freedom
His indictment is worrying,
say press freedom advocates
https://www.commondreams.org/views/2019/04/13/why-prosecution-julian-assange-troubling-press-freedom
After a seven-year standoff at
the Ecuadoran embassy in London, British police on Thursday arrested WikiLeaks
founder Julian Assange--a development press freedom advocates had long feared.
For years, journalists and
press freedom advocates worried the U.S. would prosecute
Assange under the Espionage Act for the publication of classified
information, a scenario that potentially would have set a devastating legal
precedent for U.S. news organizations that regularly publish such material.
During the Obama
administration, officials ultimately said they would not prosecute because of
the possible consequences for press freedom.
It was unclear whether the
Trump administration would have the same compunction: while Trump praised
WikiLeaks, then-CIA Director Mike Pompeo labeled it a "non-state hostile
intelligence service." Trump has shown
little concern for freedom of the press, once allegedly urging then-FBI
Director James Comey to jail journalists. (In response to news of Assange's
arrest, Trump said he would leave it to the Justice Department).
In this context, the charge on
which Assange was arrested seemed modest: A single count of conspiracy (with
former Army Pfc. Chelsea Manning) to
"commit computer intrusion" under the U.S. Computer Fraud
and Abuse Act, with a maximum penalty of five years.
Unlike the publication of
classified information, hacking computers is not a tool for reporters. Some
journalists were quick to point this out. "[The] charge here is attempting
to help crack a password to steal classified material. Didn't work but would
news orgs do that? (Not in my experience.)," Greg Miller, a national
security reporter at The Washington Post, said on Twitter.
But press freedom advocates,
and some journalists, have not expressed relief based on the indictment.
A host of organizations, including CPJ,
spoke out against the prosecution. Here's why:
(1) The indictment is
flimsy and could simply be a pretext to punish Assange for publishing
classified information.
The diplomatic time and
resources expended between three countries to detain Assange strikes some
observers as disproportionate to the single computer misuse charge. The
indictment is vague about the exact nature of the aid Assange allegedly
provided Manning in the course of their interaction, but it does
not appear that Assange
successfully hacked any password. Even if his attempts were successful, they
would have helped Manning cover her tracks, but not let her break into a system
to which she didn't already have access.
Prosecutors have wide range of
latitude; it's worth remembering that the Obama administration likely had all
the same information, but declined to pursue an indictment. Matthew Miller, a
former Justice Department spokesperson in the Obama administration, told The
New York Times that he thought the charge was justified but "This
is not the world's strongest case."
So is it just a pretext on the
part of the U.S. government to punish Assange for the publication of classified
information -- a practice that should be constitutionally protected? The issue
comes in a time of heightened concern for investigative journalists and
national security reporters. Since the September 11 attacks, the government has
increasingly classified large amounts of material and punished those who share
it with the press. CPJ has written extensively about the chilling
effect of this crackdown on reporting in the public interest.
"Given the nature of the
charge -- a discussion 9 years ago about an unsuccessful attempt to figure out
a password -- I think it's fair to debate whether this is a figleaf for the
government punishing someone for publishing stuff it doesn't want
published," tweeted Scott
Shane, a national security reporter for The New York Times.
"If it wasn't Julian
Assange, it would be very unlikely you'd see this prosecution," Cindy
Cohn, executive director of the Electronic Frontier Foundation, told CPJ.
"This is what over-broad discretion in prosecution does, it gives them a pretext
for going after people they don't like."
(2) The charge could be a
placeholder, with more to come.
Another reason why the charge
may seem so modest: It could be the first of several. Yesterday, CNN cited U.S.
officials promising additional charges against Assange. The press freedom
implications of any future charges could be significant--especially if they
involve the Espionage Act.
"It may be part of a
larger case," Ben Wizner the director of the American Civil Liberties
Union, told CPJ. The current indictment already cites the Espionage Act and
describes the cracking of a password as part of a conspiracy to violate it.
The DOJ's legal strategy could
be to pile on more charges after Assange is extradited. The extradition
treaty between the U.S. and the U.K. says an individual can only be
charged for the "offense for which extradition was granted" or
similar offenses, but it also stipulates how governments can waive this rule.
Assange has an extradition hearing on May 2, which gives the U.S. government
time to develop new charges.
(3) The language of the case
seems to criminalize normal journalistic activities.
While the charge against
Assange relates to the alleged conspiracy to hack a password, the language of
the indictment sweeps in a broad range of legally protected and common
journalistic activity.
Count 20 of the indictment
states, "It was part of the conspiracy that Assange encouraged Manning to
provide information and records from departments and agencies of the United
States." The indictment goes on to characterize a number of journalistic
practices as part of a criminal conspiracy, including use of a secure message
service, use of a cloud-based drop box, and efforts to cover Manning's tracks.
The cultivation of sources and
the use of encryption and other means to protect those sources are essential to
investigative journalism. While the government may include these details to
show intent or to describe the means and context for the alleged criminal
action, they seem to go beyond what is necessary. Barton Gellman, who led The
Washington Post's Pulitzer Prize-winning reporting on the Snowden documents,
told CPJ, "If asking questions and protecting a source are cast as
circumstantial evidence of guilt, we'll be crossing a dangerous line."
"A lot of the way the
crime is described here could be applied to other journalists," Wizner, at
the ACLU, told CPJ. "If the government wanted to just target the attempted
intrusion, they could have written a very different complaint."
(4) The Computer Fraud and
Abuse Act is incredibly broad.
In all of the concern over the
Espionage Act, journalists may not have sufficiently raised alarm over the law
under which the U.S. charged Assange: the Computer Fraud and Abuse Act (CFAA).
"Thinking we should breathe a sigh of relief because it was the CFAA
instead of the Espionage act is premature." Cohn, of Electronic Frontier
Foundation, told CPJ.
The CFAA carries its own set
of free expression issues. While it encompasses clearly illegal behavior like
hacking, it also criminalizes "unauthorized access to a computer."
Manning was prosecuted under the CFAA in addition to the Espionage Act, but
prosecuting a publisher under the CFAA for conspiracy in obtaining the
classified information could potentially create a dangerous legal model.
While reporters do not
conspire to decrypt passwords, they are often aware of, and might actively
discuss with sources, activities that could fall under the broad frame of
"unauthorized access." As the Cato Institute's Julian Sanchez wrote
on Twitter,
"The way 'helping to hack' is being charged is as a conspiracy to violate
18 USC §1030 (a)(1) [of the Computer Fraud and Abuse Act]. And good reporters
conspire with their sources to do that constantly."
"For almost every
reporter working with a source, the source is providing information in digital
form. Anyone who is working with a source who obtained that info in a way that
they weren't supposed to has a CFAA risk," Cohn said. She added that any
journalists who don't think there are broader press freedom implications to the
Assange prosecution are "whistling past the graveyard."
(5) Ecuador's withdrawal of
asylum raises questions.
Assange's arrest came after
Ecuador withdrew his asylum protection. In a tweet on
April 11, Ecuadoran President Lenin Moreno said the decision came after
Assange's "repeated violations to international conventions and daily-life
protocols." In a video statement accompanying the tweet, he cited
Assange's repeated "intervening in the internal affairs of other
states" via WikiLeaks publications.
Ecuador had previously restricted Assange's
access to the internet based on allegations that he was interfering in U.S.
elections and in the referendum for Catalan independence from Spain. While
Assange's unusual presence in a diplomatic mission created tensions--both
inside the embassy and in Ecuador's broader international
relations--withdrawing asylum is an extreme measure, and one that could have
troubling implications if it was done in response to publishing.
Yanis Varoufakis: "an outrageous violation of human rights and a vicious attack on freedom of speech and whistleblowers."
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Yanis Varoufakis, WikiLeaks Task Force, WikiLeaks and 4 others
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We strongly condemn his
arrest. This is an outrageous violation of #humanrights and a
vicious attack on freedom of speech and whistleblowers! Sign the petition
against his extradition to the US
https://i.diem25.org/petitions/1
#FreeAssange #Assange
3:07 AM - 11 Apr 2019
WikiLeaks Founder Julian Assange 'Dragged Out' of Ecuadorian Embassy, Arrested By UK Police
"Julian Assange did not
'walk out of the embassy.' The Ecuadorian ambassador invited British police
into the embassy and he was immediately arrested," WikiLeaks wrote on
Twitter
WikiLeaks founder Julian
Assange was forcibly removed from the Ecuadorian embassy in London and arrested
by British police Thursday morning.
"Assange did not leave of
his own free will and could be heard shouting 'U.K. must resist, you can
resist!' as he was dragged out of the Ecuadorian embassy," Gizmodo reported.
On Twitter, WikiLeaks wrote,
"Julian Assange did not 'walk out of the embassy.' The Ecuadorian
ambassador invited British police into the embassy and he was immediately
arrested."
Assange's arrest was
immediately condemned as a "direct attack on whistleblowers," and
it comes
amid growing fears that the U.K. could extradite the Wikileaks founder
to the United States.
"It will be a sad day for
democracy if the U.K. and Ecuadorian governments are willing to act as
accomplices to the Trump administration's determination to prosecute a
publisher for publishing truthful information," Assange's legal team said
in a statement last week.
DiEM25, a progressive European
political organization founded by former Greek Finance Minister Yanis
Varoufakis, called Assange's
arrest "an outrageous violation of human rights and a vicious attack on
freedom of speech and whistleblowers."
Journalist John Pilger added,
"The action of the British police in literally dragging Julian Assange
from the Ecuadorean embassy and the smashing of international law by the
Ecuadorean regime in permitting this barbarity are crimes against the most
basic natural justice. This is a warning to all journalists."
In a statement, Ecuadorian
President LenΓn Moreno said "Ecuador has sovereignly decided to terminate
the diplomatic asylum granted to Mr. Assange in 2012."
The Washington Post reported that
Ecuador "said it was rescinding asylum because of his 'discourteous and
aggressive behavior' and for violating the terms of his asylum."
On Twitter, WikiLeaks accused
Moreno of violating international law:
URGENT: Ecuador has illegally
terminated Assange political asylum in violation of international law. He was
arrested by the British police inside the Ecuadorian embassy minutes ago. https://defend.wikileaks.org/2019/03/18/the-assange-precedent-the-threat-to-the-media-posed-by-trumps-prosecution-of-julian-assange/ …
The Martyrdom of Julian Assange
We must, in every way
possible, put pressure on the British government to halt the judicial lynching
of Assange
The arrest Thursday of Julian
Assange eviscerates all pretense of the rule of law and the rights of a free
press. The illegalities, embraced by the Ecuadorian, British and U.S.
governments, in the seizure of Assange are ominous. They presage a world where the
internal workings, abuses, corruption, lies and crimes, especially war crimes,
carried out by corporate states and the global ruling elite will be masked from
the public. They presage a world where those with the courage and integrity to
expose the misuse of power will be hunted down, tortured, subjected to sham
trials and given lifetime prison terms in solitary confinement. They presage an
Orwellian dystopia where news is replaced with propaganda, trivia and
entertainment. The arrest of Assange, I fear, marks the official beginning of
the corporate totalitarianism that will define our lives.
Under what law did Ecuadorian
President Lenin Moreno capriciously terminate Julian Assange’s rights of asylum
as a political refugee? Under what law did Moreno authorize British police to
enter the Ecuadorian Embassy—diplomatically sanctioned sovereign territory—to
arrest a naturalized citizen of Ecuador? Under what law did Prime Minister
Theresa May order the British police to grab Assange, who has never committed a
crime? Under what law did President Donald Trump demand the extradition of
Assange, who is not a U.S. citizen and whose news organization is not based in
the United States?
I am sure government attorneys
are skillfully doing what has become de rigueur for the corporate state, using
specious legal arguments to eviscerate enshrined rights by judicial fiat. This
is how we have the right to privacy with no privacy. This is how we have “free”
elections funded by corporate money, covered by a compliant corporate media and
under iron corporate control. This is how we have a legislative process in
which corporate lobbyists write the legislation and corporate-indentured
politicians vote it into law. This is how we have the right to due process with
no due process. This is how we have a government—whose fundamental
responsibility is to protect citizens—that orders and carries out the
assassination of its own citizens such as the radical cleric Anwar al-Awlaki
and his 16-year-old son. This is how we have a press legally permitted to
publish classified information and a publisher sitting in jail in Britain
awaiting extradition to the United States and a whistleblower, Chelsea Manning,
in a jail cell in the United States.
Britain will use as its legal
cover for the arrest the extradition request from Washington based on
conspiracy charges. This legal argument, in a functioning judiciary, would be
thrown out of court. Unfortunately, we no longer have a functioning judiciary.
We will soon know if Britain as well lacks one.
Assange was
granted asylum in the embassy in 2012 to avoid extradition to Sweden
to answer questions about sexual
offense allegations that were eventually dropped. Assange and his
lawyers always argued that if he was put in Swedish custody he would be
extradited to the United States. Once he was granted asylum and Ecuadorian
citizenship the British government refused to grant Assange safe passage to the
London airport, trapping him in the embassy for seven years as his health
steadily deteriorated.
The Trump administration will
seek to try Assange on charges that he conspired with Manning in
2010 to steal the Iraq and Afghanistan war logs obtained
by WikiLeaks. The half a million internal documents leaked by Manning from the
Pentagon and the State Department, along with the 2007 video of U.S.
helicopter pilots nonchalantly gunning down Iraqi civilians, including
children, and two Reuters journalists, provided copious evidence of the
hypocrisy, indiscriminate violence, and routine use of torture, lies, bribery
and crude tactics of intimidation by the U.S. government in its foreign
relations and wars in the Middle East. Assange and WikiLeaks allowed us to see
the inner workings of empire—the most important role of a press—and for this
they became empire’s prey.
U.S. government lawyers will
attempt to separate WikiLeaks and Assange from The New York Times and the
British newspaper The Guardian, both of which also published the leaked
material from Manning, by implicating Assange in the theft of the documents.
Manning was repeatedly and often brutally pressured during her detention and
trial to implicate Assange in the seizure of the material, something she
steadfastly refused to do. She is currently in jail because of her refusal to
testify, without her lawyer, in front of the grand jury assembled for the
Assange case. President Barack Obama granted Manning, who was given a 35-year
sentence, clemency after she served seven years in a military prison.
Once the documents and videos
provided by Manning to Assange and WikiLeaks were published and disseminated by
news organizations such as The New York Times and The Guardian, the press
callously, and foolishly, turned on Assange. News organizations that had run
WikiLeaks material over several days soon served as conduits in a black
propaganda campaign to discredit Assange and WikiLeaks. This coordinated smear
campaign was detailed in a leaked Pentagon document prepared by the Cyber
Counterintelligence Assessments Branch and dated March 8, 2008. The
document called on the U.S. to eradicate the “feeling of trust” that is
WikiLeaks’ “center of gravity” and destroy Assange’s reputation.
Assange, who with the Manning
leaks had exposed the war crimes, lies and criminal manipulations of the George
W. Bush administration, soon earned the ire of the Democratic Party
establishment by publishing 70,000 hacked emails belonging to the Democratic
National Committee (DNC) and senior Democratic officials. The emails were
copied from the accounts of John Podesta, Hillary Clinton’s campaign chairman.
The Podesta emails exposed the donation of millions of dollars from Saudi
Arabia and Qatar, two of the major funders of Islamic State, to the Clinton
Foundation. It exposed the $657,000 that Goldman Sachs paid to Hillary Clinton
to give talks, a sum so large it can only be considered a bribe. It exposed
Clinton’s repeated mendacity. She was caught in the emails, for example,
telling the financial elites that she wanted “open trade and open borders” and
believed Wall Street executives were best positioned to manage the economy, a
statement that contradicted her campaign statements. It exposed the Clinton
campaign’s efforts to influence the Republican primaries to ensure that Trump
was the Republican nominee. It exposed Clinton’s advance knowledge of questions
in a primary debate. It exposed Clinton as the primary architect of the war in
Libya, a war she believed would burnish her credentials as a presidential
candidate. Journalists can argue that this information, like the war logs,
should have remained hidden, but they can’t then call themselves journalists.
The Democratic leadership,
intent on blaming Russia for its election loss, charges that the Podesta emails
were obtained by Russian government hackers, although James Comey, the former
FBI director, has conceded that the emails were probably delivered to WikiLeaks
by an intermediary. Assange has said the emails were not provided by “state
actors.”
WikiLeaks has done more to
expose the abuses of power and crimes of the American Empire than any other
news organization. In addition to the war logs and the Podesta emails, it made
public the hacking tools used by the CIA and the National Security Agency and
their interference in foreign elections, including in the French elections. It
disclosed the internal conspiracy against British Labour Party leader Jeremy
Corbyn by Labour members of Parliament. It intervened to save
Edward Snowden, who made public the wholesale surveillance of the American
public by our intelligence agencies, from extradition to the United States by
helping him flee from Hong Kong to Moscow. The Snowden leaks also revealed that
Assange was on a U.S. “manhunt target list.”
A haggard-looking Assange, as
he was dragged out of the embassy by British police, shook his finger and
shouted: “The U.K. must resist this attempt by the Trump administration. … The
U.K. must resist!”
We all must resist. We must,
in every way possible, put pressure on the British government to halt the
judicial lynching of Assange. If Assange is extradited and tried, it will
create a legal precedent that will terminate the ability of the press, which
Trump repeatedly has called “the enemy of the people,” to hold power
accountable. The crimes of war and finance, the persecution of dissidents,
minorities and immigrants, the pillaging by corporations of the nation and the
ecosystem and the ruthless impoverishment of working men and women to swell the
bank accounts of the rich and consolidate the global oligarchs’ total grip on
power will not only expand, but will no longer be part of public debate. First
Assange. Then us.
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