It would be the political persecution of the 21st Century. A publicly orchestrated campaign of mobbing, libelling and black balling by the most powerful country on the planet of a publisher who, using novel technological means, enlivened a moribund fourth estate by linking, ever more closely, the leaking whistleblower and the scribbling journalist.
After 2010, Julian Assange, founder of the publishing organisation WikiLeaks, found himself the subject of intense interest in US national security circles. In September, a trove of over 250,000 cables from the US State Department were released on the organisation’s website, much of it useful as a window to Washington’s policies towards allies and adversaries. The bounty, over the period, also included 90,000 activity reports on the US war in Afghanistan, 400,000 activity reports on the US-led invasion of Iraq, and 800 Joint Task Force Guantanamo (JTF GTMO) briefs on detainees.
The Obama administration, while initially teasing the options for prosecuting Assange, found the project, and prospects, too onerous. Not so the Trump administration, where Assange and the WikiLeaks organisation came to be seen as enemy information guerillas for hire. Central Intelligence Director Mike Pompeo to see the publishing outfit as a “hostile intelligence service” that fetishized transparency politics while aiding US adversaries.
Tenanted as a defiant, if ailing political asylee in London’s Ecuadorian Embassy for seven years, he was eventually, on agreement between the US, UK and Ecuadorian governments, dragged out in 2019.
Having been mocked for his fears that Washington wanted his scalp, he faced two indictments, the latter superseding the former. The June 2020 superseding indictment was astonishing, outrageous, and shambolic. It alleged that Assange had committed 18 offences, 17 centred on that relic of press crushing paranoia known as the Espionage Act of 1917. Extradition to the United States, it was argued, would be appropriate.
A dogged legal campaign proceeded as Assange languished, without bail, in a cell in Belmarsh, the UK’s most secure maximum-security prison. Modest success and many setbacks followed. Without a need to recapitulate the absurdist carnival of the appeals process, May 20 came to be a significant turning point. The UK High Court, unconvinced by assurances made by the US government that Assange would not be at risk of discrimination on grounds of being a non-US national, agreed to grant the publisher leave to appeal the extradition. It was not clear, for instance, that Assange would be able to avail himself of the free press amendment under the US Constitution, something mirrored in Article 10 of the European Convention of Human Rights.
On June 24, the US Department of Justice revealed that a plea deal had been struck with Assange. First there were 18; now there was one. In Saipan, located in the US commonwealth territory of Northern Mariana Islands in the Western Pacific, Assange faced a third indictment. In correspondence between the US Department of Justice and US District Court Chief Judge Ramona V. Manglona, it was revealed that the venue was appropriate for reasons that it was not US territory proper, and for reasons that the court was closer to the “defendant’s country of citizenship, Australia, to which we expect he will return at the conclusion of proceedings”.
Before the US District Court for the Northern Mariana Islands, Assange pleaded guilty to one count of conspiracy to obtain and disclose national defence information under the Espionage Act, or section 793(g) (Title 18, USC). The felony carries fines up to US$10,000 and/or up to 10 years in prison. Assange’s time in Belmarsh Prison, spent on remand for some 62 months, was considered sufficient to meet the penalty.
The felony charge sheet alleges that Assange knowingly and unlawfully conspired with US Army intelligence analyst Chelsea Manning, when based at Operating Base Hammer in Iraq, to receive and obtain documents, writings and notes, including those of a secret nature, relating to national defence, wilfully communicated those documents from persons with lawful possession of or access to them to those not entitled to receive them, and do the same from persons unauthorised to possess such documents.
The entire process of Assange’s transfer, from his Belmarsh release, to being granted bail by the High Court, and then flying from Stansted airport, was very much in keeping with the way powers have treated him over the years. As if to warn detractors of the plea deal, be they within the US intelligence and security community, or associated with it, Assange could count on the services of a makeshift praetorian guard: Australian UK High Commissioner Stephen Smith, and the shepherding services of Australian Ambassador to Washington, Kevin Rudd. With these present, a redirected flight to a CIA black site, mechanical sabotage of the aircraft, or a stray missile, would be less likely.
The plea deal has saved Assange’s life. The Albanese government has some reason to crow on this point; it is clear that demands for Assange’s release showed some purchase in Washington. And it would be churlish to regard the agreement, from the viewpoint of Assange and his family, as anything other than humane. Labor MP Julian Hill voiced the sentiment: “No one should judge Julian for accepting a deal to get the hell out of there and come home. His health is fragile.”
Nothing gets away from the seriousness of this prosecution and its success in securing the conviction, albeit on one count. The conviction under the Espionage Act for conspiracy to obtain and disclose national defence information goes to the core of attacking the nexus between the leaking whistleblower and the journalist-publisher. It heralds the dangerous, and tragically successful attempt by the US government, to cut the line of oxygenating information between the leaker and the fourth estate.
Unfortunately for Assange, he finds himself in a country which has experimented with something rather similar. Were it not for the refusal of an unusually enlightened Commonwealth Director of Public Prosecutions in October 2020, Dan Oakes of the ABC would have been prosecuted for his role in publishing the Afghan Files, a collection of documents disclosed by the now convicted whistleblower David McBride. The documents revealed alleged war crimes by Australian Special Forces.
It follows that any number of effusive remarks about this deal being a triumph of free speech is misplaced. All parties, be they publishers, journalists or writers, dealing with US national security information obtained by a leaker or whistleblower, face potential prosecution by the DOJ. They need not be US citizens. Nor does it matter that they conduct their activities outside the US. They will have no guarantee of First Amendment protections, as this point remains untested. The Espionage Act has been detached from its territorial limits. And Assange has paid a sorry price for it.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.
Contributions to Pearls and Irritations
Your contribution will fund quality independent comment and analysis in Pearls and Irritations
Contribute
