Julian Assange is a polarising personality. Admired by many for his work as a whistle-blower, Assange is famously
loathed by other people who still hold him accountable for the sexual assault charges that the Swedish authorities
finally dropped back in November 2019. All along, Assange and his legal team argued that the Swedish prosecution had the
ultimate aim of getting him extradited back to the United States. At the time, Assange’s critics claimed that those
fears of extradition were merely an excuse to evade prosecution in Sweden.
Well, it turns out that Assange’s fears about extradition were soundly based. The US continues to seek his extradition
to face charges under the US Espionage Act that on conviction carry up to 175 years in prison. Last week – on December
10, Human Rights Day! - the UK courts took a giant step to making that outcome possible. The High Court overturned a
previous ruling that Assange’s health and likely treatment (solitary confinement in a US Supermax facility) were
sufficient grounds for refusing his extradition.
Not any more. After receiving cross-your-heart promises from the US (a) that Assange, if convicted, would have his
physical and mental health needs adequately met and (b) that he might not be sent to a Supermax and might be allowed to serve some of his sentence in an Australian prison, the same UK judge who had made the earlier decision
changed his mind, and gave the extradition the green light. This ruling will now be appealed to the UK Supreme Court
where – hopefully – the wider issues raised by his case might be revisited. It will take at least two years to go through this process, during which time Assange will continue to be
held in Britain’s Belmarsh prison. Assange has now spent almost ten years in confinement, after he first sought refuge
in Ecuador’s embassy in London in 2012.
For those hung up on Assange’s celebrity status – hero or villain, altruist or narcissist? – His personality traits are
beside the point. His prosecution, imprisonment and extradition proceedings amount to a wide-ranging attack on freedom
of speech, on press freedom and on the ability of the media to hold governments to account. As the Guardian recently pointed out, the High Court decision is not only a blow for his family and friends, who fear he would not survive imprisonment in
the US. It is also a blow for all those who wish to protect the freedom of the press:
The case against him relates to hundreds of thousands of leaked documents about the Afghanistan and Iraq wars, as well as diplomatic cables, which were made public by WikiLeaks working with the
Guardian and other media organisations. They revealed horrifying abuses by the US and other governments which would not
otherwise have come to light
Assange’s alleged “crime” was to publish on Wikileaks a trove of documents and cables obtained by Chelsea Manning, a US
soldier stationed in Iraq. The material included evidence of war crimes committed by US forces in Iraq and Afghanistan.
The diplomatic cables contained hundreds of examples of US diplomats being engaged in clandestine activities without the
knowledge or consent of the public at home, or in the countries affected. The public interest served by revealing such
activities should be obvious. Revealing the atrocities, lies and deceptions of the powerful is what journalism exists to
do, in a free society.
Uniquely though, Assange has been prosecuted for doing so, as the American Civil Liberties Union pointed out in 2019:
For the first time in the history of our country, the government has brought criminal charges under the Espionage Act
against a publisher for the publication of truthful information. This is a direct assault on the First Amendment.
The Columbia Journalism Review made the same point a year ago:
…This case is nothing less than the first time in American history that the US government has sought to prosecute the
act of publishing state secrets, something that national security reporters do with some regularity. While many of the
charges [contained in the Assange indictment] involve conspiracy or aiding and abetting, three counts are based on “pure
publication”—the argument that Assange broke the law just by posting classified documents on the Internet.
And furthermore:
Read literally, the Espionage Act criminalizes the solicitation, receipt, and publication of any government secret, not
just the names of informants. The Justice Department has long taken the position that it can prosecute the act of
publishing classified information. But it has not done so, until now, because of concerns that it would open a Pandora’s
box of media censorship.
With Assange, Pandora's box has now been opened. If Assange can be prosecuted for publishing leaked information – on the
grounds it was “stolen” and because the disclosures (in the state’s opinion) damaged “ national security” then any other
journalist is at risk of the same fate for doing their job. The CJR article gives an interesting example of how these
things used to be handled. In the mid 1970s, the Ford administration decided not to prosecute the investigative
journalist Seymour Hersh for revealing (in a front page New York Times story) the full details of a secret US submarine programme. On that occasion, the US Justice Department chose to go
straight to the NYT publishers and quietly remind them it would be in everyone’s best interests if they took national security more
seriously next time around.
Thankfully, the Internet has made those sort of cosy arrangements impossible. Yet if Assange is successfully extradited,
the precedent cannot avoid having a chilling effect on any revelations about government wrong-doing, given that the
documents proving it will almost certainly belong to the state. The evidence will always have been “stolen” and
“national security” is a conveniently elastic term. Truth and the public interest don’t provide any defence at all.
Governments can always claim that what the public may be interested in isn’t always in their best interest to know.What To Do
To date, the Australian government has refused to make any critical comment about this ongoing abuse of the legal process to prosecute/persecute one of its citizens abroad. This silence
allegedly, is out of “respect” for the legal proceedings. No doubt, the New Zealand government would use the same excuse
to avoid taking a stand. Let the court process run its course etc. etc.
Yet only last week PM Jacinda Ardern participated in an online democracy summit hosted by US president Joseph Biden, in
which Biden posed as a sterling defender of press freedom:
Opening his Summit for Democracy this week, Joe Biden urged his guests to “stand up for the values that unite us”, including a free press. The US president boasted of his new initiative for
democratic renewal, including measures to support an unfettered and independent media: “It’s the bedrock of democracy.
It’s how the public stay informed and how governments are held accountable. And around the world, press freedom is under
threat.”
You bet it is, including by the Biden White House.(At the same online gathering US Secretary of State Anthony Blinken
described a free press as an ‘’indispensable” part of a modern democracy.) With those fine words still ringing in her ears, Ardern surely has a mandate to remind Biden
that the US needs to practice what it has just preached – by- for instance, dropping the Assange prosecution.
There’s more. Over the course of the past two decades, the Clark and Ardern governments have made much of New Zealand’s
reliance on a rules based international order based on shared norms. One of those norms that has existed for the best
part of 200 years, is that you don’t extradite people for offences of a political nature, and (especially) you don’t
send them back to where they will be treated inhumanely, for actions and expressions arising from their political
opinions.
This is a platform readily available to Ardern to comment on the Assange case. Supposedly we look to the United Nations
to take the lead in establishing and defending the rules-based international order. Well, in the Revised Draft Model for Extradition Law that the UN recommends that its member states should adopt, Articles 3a, 3b, and 3f say this:
Article 3: MANDATORY GROUNDS FOR REFUSAL
Extradition shall not be granted in any of the following circumstances:
(a) If the offence for which extradition is requested is regarded by the
requested State as an offence of a political nature….
(b) If the requested State has substantial grounds for believing that the
request for extradition has been made for the purpose of prosecuting or
punishing a person on account of that person's race, religion, nationality, ethnic
origin, political opinions, sex or status, or that that person's position may be
prejudiced for any of those reasons; [bolded emphasis mine]
(f) If the person whose extradition is requested has been or would be
subjected in the requesting State to torture or cruel, inhuman or degrading
treatment or punishment or if that person has not received or would not receive
the minimum guarantees in criminal proceedings, as contained in the
International Covenant on Civil and Political Rights, article 14…
Sure, this is only a model treaty. No-one has signed it. Yet it strongly indicates what principles with respect to
extradition law that the UN wants and expects its member states to adopt and uphold. My point being, our declared
support for a rules based international order give us grounds to urge the US to cease its attempts to extradite Assange
- because (contrary to UN principles) that extradition is clearly for an offence of a political nature, is held to be
motivated by his political opinions, and will result in degrading and inhumane treatment within the US prison system.
Ultimately, if it truly believes in the UN and the international rule of law, New Zealand should not be standing
passively on the side-lines while an injustice of this magnitude is being perpetrated - especially given the precedent
that Assange’s conviction and continued imprisonment has for the role of the media, here and abroad.
Footnote One: The US government offensive against leakers and journalists who publish leaked information did not begin with Assange,
even though his case has taken that campaign to new heights. Barack Obama was the main offender:
President Barack Obama, in fact, set a record for any president with his number of prosecutions against leakers using the Espionage Act. Some observers fear that Obama’s crackdown on
leaks paved the way for Trump to do the same.
Footnote Two: Over the years, only a handful of US soldiers have been convicted for war crimes committed during service in Iraq or
Afghanistan. See here and also here and also here for some of those examples. Even on the even rarer occasions when a conviction results, the punishment has often been
of little deterrent value. For example : the group of US soldiers eventually prosecuted for prisoner torture and
maltreatment at Bagram air base in Afghanistan were either acquitted, or fined and demoited, or in the most extreme
case, imprisoned for five months.
In a couple of instances (eg Sgt Clint Lorance and Navy SEAL Eddie Gallagher) the uniformed murderers in US war zones
abroad were pardoned by US President Donald Trump. The rarity of these prosecutions (and the issuing of a presidential
pardon to someone as noxious as Gallagher) underlines the double standard being displayed by the dogged US pursuit of Assange:
As Agnès Callamard, secretary general of Amnesty International, has noted: “Virtually no one responsible for alleged US
war crimes committed in the course of the Afghanistan and Iraq wars has been held accountable, let alone prosecuted, and
yet a publisher who exposed such crimes is potentially facing a lifetime in jail.”
On the evidence, the US regards the publishing of the evidence of its war crimes to be a worse offence than committing
such crimes in the first place.
Footnote Three : There’s a lucid brief history here of the “political offence” exemption in extradition requests, and of the three main ways- the US, the UK and the Swiss
models – that the exemption has evolved over the centuries.
Footnote Four : You might be wondering why Julian Assange can be held liable for the content on Wikileaks, when the famous section 230
‘safe harbour ‘provision (Available under US telecommunications law), protects other online platforms like Facebook and
Youtube from legal liability for the content they carry, and regardless of any harms caused by that content. Moreover,
the case law on section 230 extends that safe harbour protection extraterritorially, regardless of where the Wikileaks
“head office” (if there is such a thing) is located.
The difference seems to depend on the “stolen” status of the Wikileaks content, and the “national security” harms
allegedly caused. Clearly though, the disclosures by Wikiieaks were in the public interest, and it is open to argument
as to whether in the long run they did more good than harm to America’s genuine national security concerns. All too
often, government use the claim of “national security” like a blanket thrown over a parrot cage, with the aim being to
keep the bird in the dark, and silent.