This Ruling Is a Victory for Julian Assange — But Still a Blow Against a Free Press
Monday's court ruling against extraditing Julian Assange to the United States is a welcome relief for his supporters. But the court also rejected his defenses on the grounds of journalists' rights to seek and impart information — a ruling that will further thwart scrutiny of the national security establishment.
Judge Vanessa Baraitser’s decision to prevent Julian Assange’s extradition to the United States to face trial on espionage-related criminal charges is a partial victory for Assange, his family, and his supporters. Baraitser was not satisfied that US prison authorities would be able to prevent the award-winning journalist from taking his life, given the conditions of solitary confinement and isolation that he would likely face during pre-trial detention and in the event of his conviction.
However, in her ruling, the judge made clear that Assange would have been extradited, if it weren’t for his “substantial risk” of committing suicide. In so doing, Baraitser left the door open to the prosecution and extradition of journalists and publishers engaged in investigative news-gathering the world over. Hence the ruling ends up adding to the “chilling effect” already experienced by those interested in national security journalism.
Indeed, the reason Assange is being prosecuted is his role in revealing war crimes. The charges against the WikiLeaks publisher focus almost entirely on his role in obtaining and publishing classified materials, from 2009 to 2011, leaked to him by US Army whistleblower Chelsea Manning. The publications, collectively known as the Iraq War logs, Afghanistan Diaries, Guantanamo Bay detainee files and US diplomatic cables, revealed war crimes, thousands of civilians killed, CIA torture, undue pressure placed upon governments, and conspiracy to cover up civilian deaths.
In short, the United States is seeking the extradition of a man who isn’t a US citizen and never took an oath of loyalty to the United States, for obtaining and publishing government secrets whilst based outside of the United States, as they simultaneously seek to deny him the benefit of First Amendment protections.
Indeed, nothing within the charges has anything to do with the 2016 US election. Robert Mueller’s report into alleged Russian government interference concluded that there was insufficient evidence to charge Assange or WikiLeaks. In particular, Mueller’s findings could not substantiate (see p. 177) any charges against Assange for conspiring either with the Trump campaign or with any alleged Russian state hacking of the Democratic National Committee servers, be it wittingly or through “willful blindness.” This rather significant conclusion was only made public following the release of previously redacted pages of Mueller’s report, two days before the November 2020 election.
Many other aspects of Judge Baraitser’s decision merit closer attention. These include her interpretation that Britain’s 2003 extradition act doesn’t bar extradition for political offenses even though the UK-US Treaty explicitly does; her rejection of the argument that the US prosecution is politically motivated; and her downplaying of the relevance of whistleblower testimony that Assange, his family, and his lawyer-client privileged communications were spied upon on behalf of the CIA.
The key takeaway from Baraitser’s 132-page judgement is that, if proven, Assange’s behavior places him beyond the bounds of “lawful journalism.” Although the First Amendment protects “journalistic activity” regardless of whether a person is considered to be a “journalist,” the judge concludes that Assange’s alleged activities “went beyond the mere encouragement of a whistle-blower.”
For Baraitser, “During their contact over many months, [Assange] encouraged [Manning] to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him…” And in so doing, the judge asserts, Assange crossed the line from “proper journalist” to “co-conspirator.”
Baraitser did take note of multiple press experts who testified for the defense and explained that it is standard practice for journalists to actively encourage sources to provide them material. “Good reporters don’t sit around waiting for someone to leak information,” journalism historian and professor Mark Feldstein wrote in his witness statement, “they actively solicit it; they push, prod, cajole, counsel, entice, induce, inveigle, wheedle, sweet-talk, badger, and nag sources for information — the more secret, significant, and sensitive, the better.”
The judge did not appear to agree with this argument, and thereby rejected the notion that non-passive receipt of official documents is protected under Article 10 of the European Convention on Human Rights (which guarantees the right to receive and impart information). She backed up this interpretation by referencing court precedent and the UK’s Official Secrets Act, which criminalizes the publication of government secrets, including by journalists, and which does not provide for a public interest defense.
Assange also faces one count of conspiring to help Manning crack a password hash, under the US’s Computer Fraud and Abuse Act. Baraitser considered this alleged attempt to be “the most obvious example of his using his computer hacking skills” which placed the publisher beyond the bounds of acting legitimately. This charge could lead to a five-year prison sentence if proven.
The prosecution argued that if Assange was successful in “cracking” the hash, Manning would have been able to extract the documents she leaked to him without being detected. The defense strongly rejected those claims, arguing that the “true use” of any alleged conspiracy to crack the password hash was to install programs that would allow Manning to play movies and music on her computer. Patrick Eller, former Command Digital Forensic Examiner at the US Army Criminal Investigation Command, presented a report to the court confirming that the evidence did not back up the prosecution’s claims and supported Assange’s defense.
“[T]he interpretation placed by the prosecution on the conversation with Manning and Assange could not be reliably or safely construed to be for the purpose of obtaining anonymity for Manning so that classified information could be extracted without personal anonymity being compromised,” Eller determined.
The evidence in this matter was so incontrovertible, the defense argued, that the US government’s “conspiracy” claims amounted to an abuse of process — for they knew it was nonsense. On top of which, even if Assange was attempting to help Manning shield her identity, the testimony of investigative journalism experts such as Trevor Timm, Mark Feldstein and Nicolas Hager noted that it is standard practice for journalists to help their sources remain anonymous.
But Baraitser chose to accept the prosecution’s interpretation of the validity of the conspiracy charge — and considered it evidence of Assange’s improper behavior. In her view, any disagreement between the defense and prosecution was a factual dispute that would be a matter for a US trial to determine.
The prosecution also focused heavily on the claim that the publications of documents by WikiLeaks caused harm to sources and informants. They alleged that many sources, whose identities had been revealed as a result of disclosures of unredacted documents, had to be relocated and others still couldn’t be located.
The defense, for its part, pointed to the government’s own admission that it couldn’t prove any actual harm had occurred to its sources as a result of the disclosures, even after ten years. They also argued (see p. 31) that any risk to US sources was “unintentional, small and unsubstantiated,” which should be balanced against the risk of harm to millions of people that are “potentially subject to global-scale ongoing [US] war crimes and torture.” The Freedom of the Press Foundation’s Trevor Timm, who is also a legal analyst, further testified that there is no law in the United States that actually criminalizes the act of revealing the names of US government informants.
Baraitser rejected these arguments, concluding that to recognize that Assange was behaving as a proper journalist in publishing the cables would be to bestow upon him “the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech.” She accepted the prosecution’s claims that harm had been caused, even if it didn’t result in the loss of life or physical injury.
“Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed,” Baraitser wrote, adding that, “it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.”
WikiLeaks Wasn’t First to Publish the Unredacted Cables
Assange’s legal team emphasized that WikiLeaks did not publish the unredacted diplomatic cables until after the US-based website Cryptome had done so first. And, the only reason Cryptome was able to gain access to the unredacted cables is because they discovered the encryption key allowing them to obtain the documents in their raw unredacted form. This was possible because the full encryption key was published as the title of a chapter of a book coauthored by two Guardian journalists, Luke Harding and David Leigh, who had earlier been working with Assange.
The defense also pointed out that the US State Department had nine months’ notice that the cables were going to be published — plenty of time for them to seek to secure the safety of assets and sources. Assange had even spoken at length to a US government attorney to inform him that a rogue ex-employee was attempting to facilitate the release of the unredacted cables, which “there may be some possibility to stop.”
The judge dismissed these arguments, too — finding that being second to publish isn’t relevant and could even make matters worse by amplifying the information. Baraitser also quoted editorials in the New York Times and Guardian — whom she described as engaging in “careful editorial decisions” — which condemned WikiLeaks for publishing the unredacted cables.
This, despite the fact that they knew Assange had been the driving force behind the nine-month-long redaction of documents, described as very rigorous by investigative journalist John Goetz. Goetz worked with WikiLeaks on the Afghanistan Diaries and the diplomatic cables while he was at the German magazine Der Spiegel. The New York Times and the Guardian will also have been acutely aware that WikiLeaks only published the unredacted cables after they had already been published by Cryptome and linked to via the Pirate Bay website. Neither paper mentioned how the encryption key became available in the first place.
Ultimately, the court determined that multiple allegations against Assange would put him beyond the realm of acceptable journalism, if substantiated. Any disputes over the conspiracy charge, motives for publication, or whether any harm was caused due to the publication of documents, would be a matter for a trial court in the United States to determine.
There is, however, a fundamental problem in this reasoning. Due to the “strict liability” nature of the vast majority of the charges against Assange — i. e., the intentions of the accused do not matter in establishing guilt — his motives, the contents of the documents themselves, the password hash cracking matter, and even whether any actual harm ever resulted from the disclosures, is entirely irrelevant.
All that really matters insofar as the Espionage Act charges are concerned is whether Assange conspired to receive, obtain, and disclose national defense information. If it can be shown that Assange did any of those things, he faces ten years for each count proven to a jury’s satisfaction — with seventeen counts in total. Even if he avoids a conviction under the charge of “cracking” the password hash, that’s still a hundred seventy years in prison. Half as much would still be an effective life sentence. It would also represent the first time in US history that the Espionage Act was used to prosecute a publisher “for the publication of secrets,” according to a report filed with the court by constitutional law expert Carey Shenkman.
As Andrew Wilkie, a former Australian intelligence officer and current MP, commented, “The Court’s finding confirms the terrible personal toll on Julian Assange and the grave risk to his life should he be extradited to the United States.” But, Wilkie added, “regrettably it fails to address central issues like freedom of speech, media freedom and the US claim to extraterritoriality.”
Assange’s future is still uncertain. The US government has already indicated it plans to appeal the judge’s decision, on the basis that the test she applied regarding Assange’s risk of suicide set too high a bar. The lead US prosecutor in the case, G. Zachary Terwilliger, also recently told NPR that it is unclear whether the Biden administration would choose to continue with the prosecution. Ironically, this further substantiates the argument that the prosecution might have been politically motivated.
Baraitser also refused the latest bail application on the grounds that Assange has proven himself too much of a flight risk, due to his prior conviction for absconding on bail when he secured asylum in the Ecuadorian embassy in 2012. This is despite the fact that a US government appeal against refusal to extradite him on health grounds is, based on past cases, unlikely to succeed. Assange now also has a fiancée and two young children. He remains in Belmarsh prison, potentially for the duration of the appeal by the prosecution to the High Court. Thereafter there may even be an appeal to the UK Supreme Court.
But one thing is clear. While the decision not to extradite is certainly a victory for Assange and his family, the ruling is a crushing blow to all of those concerned with the idea of a free press — and the right to know the truth about what our governments do in our name.