The Long Road to February’s Hearing

The legal saga of Assange, as well as the US government’s extralegal war on him, has been a long, convoluted process. Payment blockades, assassination plots, years spent trapped in an embassy, indictments and superseding indictments, appeals and cross appeals — so much has transpired that it can be tough even for a seasoned observer to follow.

Although the US government began drawing up plans to destroy WikiLeaks shortly after the organization began, Assange’s peril truly began on April 5, 2010. On that day, at the National Press Club in Washington, DC, Assange and WikiLeaks published a video of a US gunship attack in Iraq. WikiLeaks provocatively titled the video “Collateral Murder.” The attack killed eighteen civilians, including two Reuters journalists. “Oh yeah, look at those dead bastards,” a soldier can be heard saying.

When a van stops to rescue the wounded, the soldiers fire upon it. They kill the men in the van and injure two children. After learning they had injured children, a soldier says, “Well, it’s their fault for bringing their kids into a battle.” Throughout the video, the soldiers can clearly be heard twisting facts in order to get permission to fire on their desired targets.

Over the next year, WikiLeaks then worked with mainstream press to publish logs from the Afghanistan and Iraq wars, State Department cables, and Guantánamo Bay detainee assessments. All of this information published between 2010–2011 was given to WikiLeaks by whistleblower Chelsea Manning, then a US Army private. Immediately, military authorities began their hunt for the source. Manning was found, subjected to what was widely condemned as torture, and court-martialed.

In July 2010, the FBI was investigating whether civilians had aided Manning. By October of that year the FBI had opened investigative files on Assange and WikiLeaks. By December, the Justice Department was considering charges against Assange.

Although FBI intelligence officials drew up potential charges that could be brought against Assange, arguing that they were necessary to deter future reporting, the Obama administration refused to sanction the prosecution. At the time, Obama prosecuted more whistleblowers under the Espionage Act than all previous administrations and had the worst record for any administration since Richard Nixon on press freedom. Yet his administration balked at bringing charges against Assange, believing it would create a legal precedent that could be used to prosecute the New York Times. The intelligence community was so angry at Obama’s decision that in 2014, the CIA and FBI demanded a personal audience with the president.

The FBI kept its case open. And the Obama administration encouraged other countries to prosecute Assange. Fearing extradition to the United States, Assange was granted political asylum by Ecuador’s democratic socialist government. Through a complex series of events condemned by the UN Working Group on Arbitrary Detention, Assange became trapped in the Ecuadorian embassy in London, where he lived for seven years.

Inside the embassy, Assange and WikiLeaks helped NSA whistleblower Edward Snowden seek asylum and published Democratic National Committee emails and secret CIA hacking tools. In short, Assange continued to make powerful enemies across the US political establishment and intelligence community.

The publishing of CIA hacking tools (“Vault 7”) occurred when Trump was president and incensed the CIA. CIA director Mike Pompeo declared WikiLeaks a “hostile non-state intelligence agency.” Using this designation, the CIA considered kidnapping or even killing the journalist.

During a panel at the Frontline Club, a London-based club for journalists, Jennifer Robinson, famed human rights attorney and longtime member of Assange’s legal team, told the capacity-room crowd, “I will never forget getting off a plane in the United States to read Mike Pompeo’s comments. It was immediately clear to me what they were doing, which was to use these semantics to create a new category for WikiLeaks that would allow them to pursue WikiLeaks in a different way.”

One week after Pompeo’s statements, Attorney General Jeff Sessions announced arresting Assange was a priority. Within the Justice Department, previously dismissed theories of how to do so were revived.

Assange had been granted asylum by the Rafael Correa government. But Correa’s successor, President Lenín Moreno, broke dramatically with Correa and sought to reorient Ecuador within the United States’ sphere of influence. While seeking an International Monetary Fund loan, Moreno revoked Assange’s asylum and allowed UK police to set foot in Ecuador’s sovereign embassy and arrest the political refugee.

Officially, the police were arresting Assange for bail hopping, but later that day the United States unsealed an indictment. Eventually, the United States would bring eighteen charges against the Australian publisher. Seventeen of those counts were brought under the Espionage Act, the law used to prosecute whistleblowers like Daniel Ellsberg, Chelsea Manning, and Daniel Hale. Assange also faces a count of conspiring to violate the Computer Fraud and Abuse Act (whistleblowers Manning and Thomas Drake also were charged under this law).

In 2021, UK district judge Vanessa Baraitser blocked the United States’ extradition request. In doing so, she rejected all of Assange’s press freedom and political expression arguments. However, given Assange’s mental health and likely conditions of confinement, she blocked the extradition as being oppressive.

In UK extradition proceedings, British prosecutors represent the United States. At the United States’ request, they appealed Judge Baraitser’s ruling. Later that year, the UK High Court threw out the ruling. Under the UK system, one needs permission to appeal. The UK Supreme Court, stating there was no arguable point of law, refused Assange permission to appeal. A UK magistrate ordered Assange extradited to the United States, and the home secretary signed an extradition order.

While that may sound like the end of the road, in many ways, it started the appeals process anew. Now Assange’s legal team could file a “cross appeal.” This is an appeal of the original judge’s rulings against Assange’s press freedom and political expression arguments.

Assange again requires permission to appeal. And the February 20–21 full-day hearings before the King’s Bench Division of the High Court were about whether Assange had grounds for appeal. If Assange loses at this stage, the only way for him to avoid prosecution in the United States for his journalism is an intervention by the European Court of Human Rights or a change of heart in Washington. As a result, the media and supporters alike have portrayed this as Assange’s final appeal in the UK.

The Legal Hearing

In last week’s hearings, for the first time since the original extradition hearing, UK courts were forced to confront the press freedom aspects of Assange’s prosecution that have captivated worldwide interest.

At this level of appeal, arguments are going to mostly be highly technical points of law. Such legal esotericisms can often distort or hide the underlying political or human issues at stake. Yet, on the first day of the UK prosecution’s arguments, Clair Dobbin inadvertently made things perfectly clear.

Instead of starting with citations to treaties, domestic statutes, or past cases, Dobbin proclaimed that Assange was not a journalist, and Manning was not a whistleblower.

In Dobbin’s summation, WikiLeaks was a website that solicited and published documents stolen, hacked, or otherwise obtained illegally. The very existence of WikiLeaks, in the prosecution’s eyes, appears to constitute criminal solicitation. Manning, per Dobbin, acted in response to this solicitation of “stolen” classified documents and gave them to WikiLeaks, who published them. Such publishing was beneficial to “hostile foreign states, terrorists, and criminal organizations” Dobbin claimed, noting that Osama bin Laden had read them while in hiding. Of course, nearly everyone following international affairs in 2010 to 2011 probably looked at WikiLeaks. And bin Laden’s computer hard drive also contained Mr Bean sketches, Tom and Jerry cartoons, and viral cat videos.

Much of Dobbin’s arguments about why WikiLeaks were not journalists and Manning was not a whistleblower seemed to rest on the fact that they weren’t supposed to have released and published the information they did. Of course, whistleblowers seldom, if ever, have the consent of those on whom they blow the whistle. And investigative journalism does not seek the permission of the powerful before exposing their crimes.

Dobbin also invoked the government’s “conspiracy to commit computer intrusion” case against Assange. According to the US government, Manning asked Assange to help her crack a password hash. The purpose of this, per the government, was not so Manning could access secret documents she wasn’t privy to. Instead, it was so she could access someone else’s account in an effort to cover her tracks.

There are a number of problems with this theory, including that not even Manning knows to whom she spoke, there’s no evidence that whoever she spoke to even attempted to crack the password, the plot clearly didn’t work, and, according to experts, what the US government accuses Manning and Assange of is technologically impossible. Nonetheless, Dobbin warned the court what would have happened had the plot succeeded: military investigators would have had a more difficult time identifying Manning as the WikiLeaks source. To the prosecution, a world in which Manning was not arrested, tortured, and imprisoned hardly seems horror-invoking.

During his rebuttal of prosecution arguments, defense attorney Mark Summers noted that not once in their two-and-half-hour presentation did the prosecution ever mention what the documents exposed: state criminality and war crimes.

While such exchanges made it clear what the proceedings were truly about, the bulk of the arguments did turn on complicated points of law. The US-UK extradition treaty, like nearly every extradition treaty the UK has signed, prohibits extradition for political offenses. Espionage is considered one of the quintessential examples of a political offense. Assange’s lawyers also argued that exposing state criminality and being prosecuted for it is inherently punishing political expression.

While the treaty undeniably prohibits extradition for political offenses, a 2003 UK extradition statute omits any reference to this part of the treaty. The defense argued the language of the treaty still stands. The prosecution argued that it was not enforceable and that its omission was conscious, quoting a lord who in 1996 opined that the political offenses exception was a product of “Western European and North American liberal ideals” that no longer had relevance in the modern world. One wonders if the prosecution views democracy, due process, or free speech similarly as antiquated Western European and North American liberal ideals.

Assange’s defense also argued that it is an abuse of process to extradite someone for a political offense, raised a number of arguments based on the European Convention on Human Rights, and argued that Assange was unlikely to receive a fair trial. Assange’s lawyers argued that the fact that no journalist was ever indicted under the Espionage Act before him meant that he could not have predicted at the time of his actions that he would have faced criminal sanction. They stressed a statement from a US prosecutor that the United States might argue that as a foreign national, Assange has no First Amendment rights as evidence of the bias he may face in US courts, and argued that under precedents set by the European Court of Human Rights, Manning would be considered a whistleblower and thus Assange could not be prosecuted for publishing her revelations under European human rights law.

The prosecution seemed to contend that any assertion the prosecution was designed to stifle Assange’s political expression was an unacceptable besmirching of US prosecutors and cited US prosecutor Gordon Kromberg’s claim that he didn’t consider Assange to be a journalist as evidence that the prosecution couldn’t be aimed at Assange’s journalism. Kromberg has been accused of bringing politically biased prosecutions against Muslims and compared drone whistleblower Daniel Hale to a heroin dealer.

One of the most shocking exchanges between prosecutors and the judges concerned the death penalty. The UK will not extradite individuals if they are to face the death penalty in the country to which they are being extradited. Assange’s lawyers have argued that even though none of the charges against Assange carry the death penalty, using the same fact pattern, the US could rework the charges to bring capital charges. Manning was charged with a capital offense, aiding the enemy. (She was acquitted.) Assange could be charged with aiding and abetting treason, the defense argued. Therefore, without US assurances not to seek the death penalty, Assange could not be extradited.

While it makes sense for Assange’s lawyers to make this argument, it is a bit of a stretch. Yet when asked by Justice Jeremy Johnson about the defense’s death penalty arguments, prosecutors said it was possible this could happen, and should it happen, the UK would be powerless to stop it. Yet the prosecution argued it was still correct to authorize the extradition.

The prosecution seemed to contend that when it came to US extradition requests, both the home secretary and the UK judiciary had no role but to rubber-stamp them, consigning itself to servility to the United States.

The Press Freedom Trial of the Century Without the Press?

Assange’s trial may be the press freedom trial of the century, but the British courts have done everything in their power to make it difficult for press to cover the latest hearing. Both times I covered previous Assange hearings for Jacobin, I was given a remote link that allowed me to watch from Washington, DC. This time, a decision was made to not grant remote access to any journalist not present in England and Wales. From Fox News to Truthout to independent journalist Kevin Gosztola, all international journalists were told being granted remote access was not in the “interest of justice.”

This prompted outcry from the Media, Entertainment and Arts Alliance (MEAA), the Australian journalists’ union. Assange is an Australian citizen, and both the ruling party and the opposition have called for the United States to end its pursuit of him. The Australian High Commissioner to the UK, at the urging of the MEAA, raised this issue with the UK government, to no avail.

Journalists were also given news about in-person credentials extremely last minute, making international travel plans difficult. The hearings were scheduled to begin on a Tuesday. It was the Friday before when the first credentialing decisions were made. I was informed a little more than a half hour before the court closed that I was denied a remote link. The email was silent on whether I would be granted in-person credentials. I was about to cancel my Sunday flight to London when, hours after the court closed, I received an email informing me I was granted access to cover the case in person.

Still, I fared better than others. Stefania Maurizi, who has been covering WikiLeaks since shortly after it began, received no notice about her in-person credentials until the day before. She was boarding her plane from Italy to the UK at the time.

Once the press arrived in person, journalists were treated no better. In spite of the massive public interest, demonstrated by the three hundred journalists who applied for credentials, the court elected to hold the hearing in one of the smallest rooms in the building. There was one additional overflow room. All press was assigned in advance either to the gallery in the actual courtroom or an annex where the hearing would be broadcast.

I was assigned the annex. Many journalists to whom I spoke expressed a preference for the annex. The lower level has tables with power outlets they could use to work on their laptops while covering the case. While this is standard practice for other proceedings, the judge ordered all journalists be forbidden from the lower level of the annex. Instead, they had to sit in a balcony. In addition to having nowhere to work, the balcony was so far from the TV screens that it was difficult to see. Four chandeliers hung lower than the balcony, obstructing the view.

As our seating tickets demarcated us as press, we were denied entry to the lower level at the door. At one point, angry press did move from the balcony to the main sitting area. Yet a court official came by and personally asked each person if they were press or a member of the general public. Journalists were ejected and sent back to the balconies. After lunch on the first day, court officials told us they had raised our concerns with the judge, but the judge stuck by the decision to confine journalists in the annex to the balcony. I asked the court officials if the judge was aware journalists could not work, could not see, and could not hear. I was informed these concerns were relayed to the judge who stuck by the decision.

In addition to visual problems, for the first half of the first day, the remote stream was largely inaudible. After lunch, an engineer was brought in who fixed the issue. The next day when we returned, a court official made an announcement that was completely inaudible to the balcony. Ironically, it turned out, he was informing us we should likely expect audio issues again that day.

When the second day of proceedings began, Dame Victoria Sharp DBE, the lead judge in the case, was clear and audible. She spoke about the previous day’s audio issue and said they were being investigated. With comedic timing, the prosecutor began speaking and was entirely inaudible. Journalists in the annex shouted they could hear nothing; a court official gruffly shouted back, “We know.” After word got to the judge, she halted the proceedings until the issue was fixed.

On top of the audio issues, the stream had a number of people listening who had failed to turn off their cameras and microphones. At times, random individuals at inartful angles took over the screens. At one point, the sound of a flushing toilet drowned out one of Assange’s lawyers.

Every one of my fellow journalists to whom I spoke at the very least viewed the British courts as disrespectful of the press. The overwhelming majority shared a belief that these acts were deliberately meant to obstruct press freedom.

Here we were covering, or at least attempting to cover, the press freedom trial of the century. And at every turn, the press was obstructed. Whether the British courts meant to send a message, one was certainly received.

Silencing the Truth

WikiLeaks released the “Collateral Murder” video in 2010. The air strike it depicted took place in 2007. This may feel like ancient history to some. And with new murderous wars raging across the globe, it’s easy to lose sight of the US government’s fourteen-year vendetta against Assange.

When WikiLeaks burst onto the scene, the organization was considered a breath of fresh air. Many people were disgusted by the corporate media’s cheering on the Iraq and Afghanistan wars. WikiLeaks’ unabashed attempts to challenge those wars through alerting the public to the truth was a reminder of what journalism at its best could be.

With the genocide in Gaza and US bombings across the region that seem to be inching toward a wider regional war, the corporate media is again playing the role it did during the run-up to the Iraq War. At the same time, there are record levels of dissent within the government, perhaps not seen since the Vietnam War.

Washington loves lying about wars almost as much as it loves starting them. Our era cries out for a new Daniel Ellsberg or Chelsea Manning willing to expose these murderous deceits. And it urgently needs bold media like Wikileaks that is willing to challenge military lies.

The government has sought to silence the truth by making examples of whistleblowers through draconian prosecutions. Having already come for the sources, it is now seeking to jail journalist Julian Assange. This war against WikiLeaks is a direct warning to those who might stand up against the current war mania. Press freedom is on the line at a time when an independent press is desperately needed.

As Stella Assange told supporters after the hearing, “Everything turns on the outcome of this case.”