Pearls and Irritations

We’re all still waiting … for your right to know. The right of the public in our democracies to know what’s really going on is being tested at this very moment at the Old Bailey in Merry England.

All the issues that so concern us about our democratic freedoms in this the age of pandemic, terror and mass cyber surveillance, and now,  additionally with a heightened fear of war: with China, with North Korea, with Iran, with Russia, are being tested through the extradition proceedings against Julian Paul Assange.

Quite apart from the UK judge hearing the case (and, in all likelihood, appellate judges), we all – including all the journalists of the so-called free world and the not-so-free world –  have to make a judgment on whether Assange’s actions in publishing a trove of material that exposed the United States of America as incompetent, inhumane, and guilty of war crimes, misjudgments and atrocities, was in the public interest or an act of treason.

Assange is an Australian citizen who founded WikiLeaks.

His WikiLeaks website tries to hold governments, institutions, corporations and powerful individuals to account by publishing confronting secret or classified information from insiders, some of whom are prepared to commit criminal offences to breach the security apparatus and, in the process, risk long jail time to deliver it.

In a late addition to its indictment, the United States government is now charging Julian Assange with criminality, not just with having breached its military secrecy regime by obtaining and publishing these secrets. Criminality … in that he allegedly solicited, even initiated and instructed, others to breach their oaths to abide by the secrecy provisions which governed their contracts of employment.  Please note that the US government is not prosecuting any publisher in the United States for having published any of the WikiLeaks material.

Unlike Edward Snowden, who identified himself as a National Security Agency conscientious objector upfront in 2013 to alert the world to the unconstitutional surveillance of the entire US population, the character and motivations of Julian Assange have been questioned.

Some journalists in Australia, initially supportive of Assange and WikiLeaks, believe he is not a journalist but some sort of anarchist. They were particularly moved by the complaints of US presidential candidate Hillary Clinton that Assange and WikiLeaks had become a “tool” of the Russians.

But Assange is not being pursued over the so-called Clinton emails. He is being extradited over what became known as the Chelsea Manning revelations. He is being pursued by the Trump administration, regardless of the fact that Trump was seen to have benefited from the WikiLeaks delivery of the Clinton emails in the run up to the 2016 presidential election.

Assange often derides and insults the mainstream or ‘corporate media’ for their claimed blind eyes in omitting to cover events which in his editorial judgement are screaming out to be exposed. He has fallen out with some mainstream media editors with whom he has been collaborating. Provocatively he calls WikiLeaks the PIA, or ‘people’s intelligence agency’.  He has made the point that he has not been selling the secrets he has received for money from the enemies of the United States, or the UK, Canada, New Zealand or Australia. No, he has been publishing them on open source websites for all the world to see.

Is Assange a journalist? Like Murdoch columnists, shock jocks or Fox or Sky provocateurs railing against socialism or Victoria’s Dan Andrews he certainly is a commentator. He bags neoliberalism. He rails against US imperialism and the secret state where insularity and paranoia becomes psychologically embedded through gradations of security clearances for all officials. Fair enough. Free speech. He bags Hillary Clinton, claiming she shares responsibility for an estimated 40,000 deaths through the US-sanctioned destabilisation of Libya.

Nowadays, through the internet and in the democracies at least, anybody can be a commentator (blogger) or dissident or critic.

Commentary is all very well. But exposure journalism is more impactful and more dangerous. With lives at stake no one claiming to be a journalist should be blinded by the career enhancement or personal notoriety or sheer audacity of exposure for its own sake. Careful, ethical judgment about the actual value of the information to be exposed and a risk assessment for the informant is needed.

So is the WikiLeaks modus operandi of soliciting and publishing a nation’s intelligence secrets even with pre-publication authentication and source protection and safety precautions real journalism … or treason? Assange’s extradition defence lawyers are trying to explore the full context of his actions and motivations including any evidence of ethical responsibility he applied before publication of classified material. If you accept the rule of law,  it is a breach of security, a criminal offence against the nation state,  for employees with access to classified material to leak it to journalists or publishers. And continuing conduct of this type could be described as distorting if, over time, exposure is one sided, only highlighting abuse of power by Western countries.

But it is undoubtedly journalism if it tells the world and a nation’s public what is really going on. It should expose any duplicity or atrocity or corruption or malfeasance it discovers, whether in a democracy, a totalitarian state or one being run by gangsters or warlords. The imperative is the public’s right to know, particularly when our young defence force men and women are to be placed in harm’s way, often on the intelligence assessments of a nation’s security agencies.  The exposure of wrongdoing and misjudgment can have an enormously beneficial accountability and corrective impact.  It can help over time to rebuild trust in government and its institutions, including our security agencies themselves.  Of course, they do not see it this way.  Security has been breached. It’s treason.

Publishing a regime’s secrets from whistleblowers and informants in Russia or China or North Korea or Iran or Israel obviously is problematic.

There both informant and publisher can be poisoned, executed, assassinated or imprisoned indefinitely. Just ask Mordecai Vanunu.

In the West we claim enlightened values:  Rule of law, one vote one value,  the separation of powers providing independent discretion to a democracy’s governance institutions: the executive, the judiciary and the representative parliaments.

In 2011, after WikiLeaks posted the massive despatch of videos, documents and cables uploaded by a US military specialist stationed in Iraq (later identified by a third party as Bradley – later Chelsea – Manning), WikiLeaks was given an Australian Walkley Award for “outstanding contribution to journalism”. The Manning material devastated national security and military intelligence agencies and their officials worldwide. It exposed raw intelligence and distrust between nations and declared allies. The Collateral Damage video showing the gunning down of innocents, in a horrendous targeting blunder, put WikiLeaks on the map as both a transformative exponent of government lies and military cynicism, deception, misjudgment, betrayal and incompetence. It led to the eventual prosecution and jailing of Chelsea Manning and demands for the execution of both herself and Assange.

In Australia the Walkley Award to WikiLeaks rocked many local journalists and editors, who remained hostile to or ambivalent about Assange. Chairman of the Walkley judging panel at the time was Channel Nine chief political reporter Laurie Oakes. Oakes had misgivings about Assange but did not dissent from giving the award to WikiLeaks.

In 2003 Oakes had opened his letterbox at his Canberra home to find a note with a business card from an Australian intelligence official, later identified as Andrew Wilkie. Wilkie was the only intelligence official in the Five Eyes (intelligence partners USA, Australia, Canada, New Zealand, UK) to have resigned  before the ‘coalition of the willing’s’ invasion of Iraq.  Wilkie resigned in protest that the invasion was being justified on an embellished claim that the Saddam Hussein Ba’athist regime still possessed weapons of mass destruction. Without having breached any domestic official secrecy laws Wilkie, now an independent member of the Australian parliament, confirmed by his resignation the thinking of many world wide, particularly after weapons inspector Hans Blix certified that he and his investigators had found none. Informed by Wilkie’s personal courage and from this Australian experience, the citation for the Walkley Award to WikiLeaks reads:

“This year’s winner has shown a courageous and controversial commitment to the finest traditions of journalism: justice through transparency. WikiLeaks applied new technology to penetrate the inner workings of government to reveal an avalanche of inconvenient truths in a global publishing coup. Its revelations, from the way the war on terror was being waged, to diplomatic bastardry, high-level horse-trading and the interference in the domestic affairs of nations, have had an undeniable impact. This innovation could just as easily have been developed and nurtured by any of the world’s major publishers – but it wasn’t. Yet so many eagerly took advantage of the secret cables to create more scoops in a year than most journalists could imagine in a lifetime.

“While not without flaws, the Walkley Trustees believe that by designing and constructing a means to encourage whistleblowers, WikiLeaks and its editor-in-chief Julian Assange took a brave, determined and independent stand for freedom of speech and transparency that has empowered people all over the world. And in the process, they have triggered a robust debate inside and outside the media about official secrecy, the public’s right to know and the future of journalism”.

If Julian Assange is now extradited to the US he will, in all likelihood, be jailed for life.

Significantly, both The New York Times and The Washington Post have editorialised their objection to what the US and UK and Australian governments are doing to Julian Assange. These newspapers know what is at stake here.

When in 1971 the US Supreme Court found for The New York Times and The Washington Post over their publication of the Pentagon Papers, a precedent was set in that democracy that journalists could publish state secrets provided illegally by informants. A district court judge had initially declined to issue an injunction restraining The New York Times writing:

“The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority to preserve the even greater values of freedom of expression and the right of the people to know”.

By six votes to three the Supreme Court justices upheld the lower court judge, ruling that the US First Amendment – Congress shall make no law abridging freedom of speech or of the press – was the protective shield for the journalists and editors. [Few other country’s constitutions carry anything resembling the US First Amendment].

The New York Times and The Washington Post then published the Pentagon Papers without any further government interference or negotiation on what they could or could not publish.  There you had it: Freedom of the Press. After Nixon’s “plumbers” and their dirty tricks were exposed upending Ellsberg’s psychiatrist’s office, the whistleblower himself was vindicated and did not face further prosecution.  Daniel Ellsberg wasn’t a traitor or a subversive.  He was a conscientious government employee who blew the whistle on administrations consistently lying to the American people and making strategic misjudgments of horrendous cost in lives of US and allied servicemen and women and the Vietnamese people, north and south, and the nearby Cambodian and Laotian people.

In his asylum flat in the Ecuadorian Embassy in London, Julian Assange was covertly surveilled by a Spanish security contractor who, it is alleged, passed on audio and video recordings of Assange’s conversations,  including with his therapist and his lawyers, to the CIA. This has only drawn attention to the procedural unfairness now in plain sight as Assange and his lawyers battle, under heavy constraints,  the UK-facilitated extradition proceedings.

Now in 2020 in this the age of terror and US Trump administration warnings about Russia and China, North Korea and Iran, our Five Eyes governments have moved further away from the historic lessons delivered via the Pentagon Papers and the lethal misjudgments of the Vietnam war.

They appear to have learnt nothing from the grotesque embellishment of Iraq’s ‘weapons of mass destruction’ which has helped to destroy the West’s remaining moral authority, destabilised the middle east and given rise to Islamic State and the phenomenon of ‘jihadi’ terrorism.  This is what Edward Snowden, quoting some enlightened intelligence officials,  called the ‘Frankenstein effect’.

Now as a counter measure to WikiLeaks and encrypted drop box journalism, many governments are imposing even more draconian sanctions on those employees minded to leak classified information.  And the journalists who deal with such information are being criminalised.

This is justified as a necessity to “keep us safe”. Politicians, adept at exploiting the psychopathy of fear produced by now instantaneous world wide coverage of terror, both planned and random, have simply ignored the need for government accountability through transparency.

In Australia the public’s right to know was in sharp focus before the summer bushfire catastrophe and the COVID-19 pandemic.  This focus was provoked by the Australian Federal Police raids on News Corp journalist Annika Smethurst and the ABC.

Such was the public distress at seeing AFP officers rummaging through Smethurst’s home and the intimidating incursion of AFP officers downloading the Afghan files of the ABC’s investigative war crimes journalists that the Joint Parliamentary Committee on Intelligence and Security conducted a public inquiry and invited submissions from all stakeholder.

The raids brought all mainstream media players –  News Corp, Nine Entertainment and the ABC  – together to start what was called the ‘right to know’ campaign.

Now in September 2020 we at last have the benefit of the committee’s report and recommendations.  In short, there was no recommendation for a  Media Freedom Act which would give Australia for the first time a statutory protection similar to the US First amendment that there shall be no law abiding freedom of expression or of the press.   A Media Freedom Act had been urged by many journalists and media practitioners.  You’ll remember there is only the idea of a free press in Australia.

There is no Bill of Rights here to statutorily enshrine an ordinary citizen’s freedom of expression, media freedom or human rights.  And also please remember,  as a former British colony,  we’ve never regulated the press other than by defamation and contempt laws. There’s the Australian Press Council, funded by the media companies and the journalists’ union, but that is an entity of self-regulation.  Broadcast media is regulated,  and standards, including journalistic standards, are externally overseen by a Commonwealth agency, the Australian Communications and Media Authority – ACMA.

The JCPIS was tasked by the current Attorney General Christian Porter  to “report on how to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats”.

While  News Corp won a High Court appeal against the AFP’s technically ‘invalid’ search warrant used for the Smethurst raid, the ABC was unsuccessful in its challenge to the raid on its offices and its journalists’ databases.

While the Attorney General has indicated that he would be ‘seriously disinclined’ to sign off on any prosecution of a journalist over a public interest question there remains the fact that one journalist, the ABC’s Dan Oakes, now has to endure the AFP’s brief of evidence going to the Commonwealth Director of Public Prosecutions for assessment on charging him and, if so,  then on to test the current Attorney General’s inclination.  The ABC search warrant said Oakes was under investigation for having “unlawfully received military information contrary to S73A92) of the Defence Act 1903 (maximum penalty unlimited) and/or dishonestly receiving stolen Commonwealth property, contrary to S132. of the Criminal Code (maximum penalty 10 years). ABC Alumni analyst and veteran journalist  Jonathan Holmes warns there’s a shelf full of possible additional offences relating to ‘dealing with’ or ‘publishing’ Australian secrets.

This, ladies and gentlemen,  is no way to secure a free press in Australia.

You would think that as the good people of Hong Kong fight to retain their democratic and human rights against  the ‘break your bones’ authoritarian Chinese Communist Party politburo, that our government and all our political parties could reach a consensus about legislating for the public’s right to know here.

But it now seems likely we will not resolve your  right to know in this country.  It seems likely that we will not  seize an historic opportunity to draw a distinction between China and the ‘Australian values’ our current Prime Minister Scott Morrison says we Australians espouse.

Instead,  it looks like we’ll end up with legislated self-censoring inhibitors,  and prohibitions to press or media freedom to publish and post ‘security related’ public interest journalism.

As we observe the Australian Government’s prosecution of Witness K and Bernard Collaery over ASIS covert surveillance of  Timor L’Este – (not for our security but for our avaricious advantage); –  ATO small business garnishee whistleblower Richard Boyle;  and Afghan Files war crimes whistleblower David McBride, the issues of duplicitous secrecy, overreach and abuse of power stare us in the face.

JCPIS is holding a hard line,  rejecting  the Right to Know campaign’s offered solution to make all search warrants involving journalists and media organisation contestable – that is the merit of the coercive intervention by law enforcement must be argued by lawyers before a designated judicial officer who would decide where the public interest lies.

As Jonathan Holmes reports the committee weakly accepted the argument by the Department of Home Affairs that “requiring subjects of search warrants to be provided with advance notice of the warrants’ execution may lead to situations in which essential evidential material is destroyed or transferred to a different location, creating major impediments for the investigation and prosecution of serious criminal offending”.

The JCPIS also rejected the Right to Know campaign’s proposed exemption from prosecution for journalists genuinely engaged in public interest journalism, rather than claimed public interest motivations merely being a defence to  any criminal charge under the Defence Act or Crimes Act.

The best the JCPIS could come up with was the idea of a Public Interest Advocate, a PIA, who could argue in secret about the public interest issues involved in the application for a search warrant to be served on a journalist or media organisation.  The committee recommended that all warrants targeting journalists should be contestable by a PIA, including search warrants authorised under the Crimes Act.  But, notes Jonathan Holmes, the advocate would still NOT be permitted to inform a ‘client’ that the warrant application exists.  “So he or she would still be restricted to bland generalities,  or, as the committee puts it,  to addressing the public interest in preserving the confidentiality of journalists’ sources; and the public interest in facilitating the exchange of information between journalists and members of the public to facilitate reporting of matters in the public interest.

As Jonathan Holmes concluded:  “Whoop-de-doo!”

Again this is no way to secure the rights of Australians to be properly informed about what is really going on.

And if at the Old Bailey,  Julian Assange is extradited to the United States to be jailed for life for informing us about war crimes, misjudgements, incompetence and atrocities, we democracies will be destroying our own professed values.

Authoritarians, politburos, war lords, gangster oligarchies and regimes with leaders-for-life will be laughing at us.   We will be seen to be doing what authoritarians always do:  Shoot  the messenger.

*This is an edited version of Quentin Dempster’s presentation to the Independent Scholars Association of Australia (in association with the State Library of NSW) via webinar on 22 September 2020.

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