Iris ter Schiphorst
First Assange, and then ...? (2019)
Is information common property to which everyone is entitled in a democracy? Who owns data? When does “leaking” information threaten “national security”, when are wars prevented?
“Information is the currency of democracy.” Thomas Jefferson
“When exposing a crime is treated as committing a crime, you are being ruled by criminals!” Edward Snowden
Is information common property to which everyone is entitled in a democracy? Who owns data? When does “leaking” information threaten “national security”, when are wars prevented? Who is spying for whom and why?
We know, at least since the big leaks from whistle-blowers like Chelsea M. (then Bradley) Manning or Edward Snowden, and publications on platforms such as WikiLeaks, how Western nations wage war (on our behalf), how tax havens work, and how much governments lose because of this.[i] We have received information about Guantanamo and secret drafts of controversial trade agreements. We have had to take note of how intelligence agencies and large companies, in conjunction with social media, monitor us and abuse our data, and how private companies (e.g. Cambridge Analytica) not only use this to do business but also to manipulate elections (Trump, Brexit).
But hardly anyone cares about these facts. A strange kind of lethargy seems to have engulfed us. Despite the fact that we are in the midst of an information war in which data and information become the decisive political weapons, in which fake news and manipulation dominate the political agendas, in which whistle-blowers are hunted like criminals, and journalists and publicists are intimidated, persecuted, threatened,imprisoned, or even murdered. Not just in the Arab countries, China, or Russia, but also in democratic countries in the Western world.
In this war, Julian Assange has become an example of how the handling of freedom of the press, journalism, whistle-blowers, and publicists is developing worldwide.
The Case of Assange
Assange is an Australian citizen, a multi-award-winning journalist, author, and computer scientist. With his WikiLeaks revelation platform, he revolutionised the media sector: Because with the provision of an anonymous, access-protected, digital mailbox - such as WikiLeaks has been offering since 2006 - the disclosure of sensitive data has been made significantly easier and the sources of the information are largely protected. This significantly changed the face of journalism and drew huge attention to the importance of whistle-blowers.
WikiLeaks is a digital mailbox and website in one: the platform makes the leaked information available to the public as quickly as possible following an authenticity and relevance check. WikiLeaks has been proven never to have published a single false report over the course of its history right up to the present day. The successes of WikiLeaks have inspired media activists everywhere to create similar platforms, thus triggering a culture of leak activism.[i] In the meantime, traditional media outlets such as the New York Times, the Guardian, and Al Jazeera also provide digital mailboxes where information can be anonymously passed on to journalists.
The fact that this trend runs counter to many governments is reflected in the restrictions and harsh punishments whistle-blowers, investigative journalists, and WikiLeaks employees all over the world are increasingly exposed to.
The sharpest “official” and sometimes even deadly weapon is the accusation of “endangering national security” or “treason”. In the case of the United States against Assange, the Espionage Act is being applied, a relic from the First World War created in order to punish “traitors” as severely as possible.
The Indictment
The core accusation against Assange is as follows: acquisition and publication of secret military and diplomatic documents to the detriment of the United States and its allies.
The full extent of the indictment was published in May 2019 and consists of eighteen charges.[ii] In the event of a conviction, Assange potentially faces 175 years of imprisonment or even the death penalty, if further charges are added.
A central pillar of the accusation appears to be a chat log between Manning and Assange from 2010 that was passed on to the FBI by an informant, probably in the same year, which apparently reveals Manning as a whistle-blower, according to the investigative journalist Erich Moechel.[iii] He analysed the charges against Assange that are decisive for the Espionage Act and applied this to the traditional media world. In doing so, he concludes that an encrypted upload mechanism for documents, which has in the meantime become common practice, amounts to incitement of an offence. Contacts with informants, a matter of course in journalism, are being turned into “conspiracy to commit espionage” and “betrayal of state secrets”.
If the indictment is successful based on these “reinterpretations”, in the future journalists all over the world could be convicted for common journalistic practices. A free press, as set out in the First Amendment of the United States Constitution, would thus be undermined.
That is why it is crucial that media and art workers – all of us! – take a stance now. Because it is nothing less than the future of investigative journalism and freedom of the press that are at stake. If Assange is convicted under the Espionage Act, the floodgates would open for unwanted journalists to be silenced in the same way.
A fair trial for Assange can be virtually ruled out under these circumstances in the United States. However, Donald Trump is not the first president of the United States to have had Assange in his sights. WikiLeaks had already been classified as a threat by counterintelligence under George W. Bush. And Barack Obama also considered indicting Assange under the Espionage Act. There are facts to support this, some of which are listed in brief in the following:
- On 15 March 2010, even before the publication of the famous “Collateral Murder” videos that would later captivate the whole world, WikiLeaks had already shown the dark side of American warfare in Iraq by publishing a secret dossier by the US secret service dating from 2008.[iv] Among other things, the document contained proposals as to how to proceed against whistle-blowers and WikiLeaks employees in order to destroy social confidence in WikiLeaks.
- On 12 August 2010, two days before Assange’s alleged sexual misconduct against two Swedish women,[v] Philip Shenon, an American investigative journalist and long-time Washington correspondent for the New York Times, wrote that Obama urged the United Kingdom, Germany, Australia, and other allied Western governments to initiate criminal investigations against the WikiLeaks founder and to severely restrict him from travelling across international borders.[vi]
- In December 2010, the US Department of Justice under Barack Obama reviewed whether Assange incited the alleged whistle-blower Chelsea M. Manning to hand the secret documents over to him and thus could be prosecuted under the Espionage Act.[vii]
As a result, Assange has been in the crosshairs of the United States for more than ten years. Under Trump, what has been threatened for many years is now to be implemented. Obama did not indict Assange under the Espionage Act, because he ultimately feared diluting the First Amendment and thus the freedom of the press.
But Trump seems to have no such concerns. He is thus in line with former CIA head and current Secretary of State Mike Pompeo, who had already declared in 2017 that WikiLeaks was a “non-state hostile intelligence service”[viii] and that Assange was not a journalist but rather “a narcissist”. In doing so, he had already provided the necessary vocabulary for a conviction under the Espionage Act.
If a message at the end of July 2019 had not caused us to sit up and take notice, one might think that the conviction of Assange – at least in the United States – had long been a done deal:
The US District Judge for New York, John Koeltl, who was appointed to office by President Clinton, acquitted Assange and WikiLeaks of the charge of interference in the 2016 US election campaign following a suit filed by the Democrats. His justification was that the publication of the Democratic Party’s internal communication gave US voters a look behind the scenes of the presidential election campaign of one of the two main parties in the United States and that this kind of information enjoys the strongest protection offered by the First Amendment to the Constitution.[ix]
The Trial in England
It is still has not been decided whether Assange can be brought to trial in the United States.Because the English court will only decide on the extradition request in February 2020. Two points are cause for concern.
On the one hand, the challenge for bias submitted by Assange’s lawyers against Chief Magistrate Emma Arbuthnot, who is to decide on his extradition to the United States in February 2020, has been rejected, even though her husband is known to have appeared in numerous WikiLeaks publications.[x]
On the other hand, a new version of the Espionage Act of 1917 is being prepared in the United Kingdom. The draft legislation revealed to date stipulates that whistle-blowers and journalists are to be punished with the same severity and with the same extended prison sentences as foreign agents, if the “national security” of England is concerned, and that this would also apply for non-British nationals, regardless of where the “leak” took place, and regardless of whether it is of far-reaching public interest.[xi]
The new legislative text is to be presented to the public in September 2019. The current formulations do not give cause for journalists or whistle-blowers to expect anything good. Rather, it is to be feared that the Espionage Act will become the preferred instrument against unwanted journalists and whistle-blowers, even in democratic countries of the Western world. In Australia, the newly elected conservative government had raids carried out in June of this year - “in the name of national security” - at the ABC public service TV channel, which two years previously had critically reported on war crimes by Australian armed forces during the war in Afghanistan. There was no outcry from the international press.[xii]
Defending the Power to Decide
The Assange case is complex and thus hardly seems to interest the public anymore. The “grubby image” that has surrounded Assange for years has also contributed to the rather indifferent response to his situation. But we must not be influenced by that. Too much is at stake. Assange and WikiLeaks stand for fact-based journalism and for the belief “that transparency in government activities leads to less corruption, better government, and stronger democracies”.[xiii] This belief has ultimately put Assange in the crosshairs of American counter-intelligence. But the principle remains the same, we have to defend it.
There must be no Assange precedent.
Therefore, it is essential that we prevent him from being extradited to the United States. We must ensure that he is released. Last but not least, in order that the investigations of sexual misconduct in Sweden can finally be brought to a conclusion.
For journalist Milos Matuscheck, “Assange [embodies] the right of every citizen to unfiltered, real information, which is now becoming a scarce commodity”. Because “either the citizen has the decision-making power on the basis of transparent information, or he is subservient.”[xiv]
[i]Arne Hintz, “Zwischen Transparenz, Informationskontrolle und politischer Kampagne: WikiLeaks und die Rolle des Leaks-Journalismus” (“Between transparency, information control, and political campaign: WikiLeaks and the role of leaks journalism”), Schriftenreihe Medienkompetenz,Bundeszentrale für politische Bildung (German Federal Agency for Political Education), 9 October 2017, https://www.bpb.de/lernen/digitale-bildung/medienpaedagogik/medienkompetenz-schriftenreihe/257599/wikileaks-und-die-rolle-des-leaks-journalismus
[i] Ibid.
[ii] United States of America v. Julian Paul Assange, United States District Court for the Eastern District of Virginia, Alexandria Division, May 2019, https://www.justice.gov/opa/press-release/file/1165556/download
[iii] Erich Moechel, “Assange-Anklage als Auftakt zum Generalangriff auf Medien” (“Assange indictment as a prelude to the general attack on the media”), radio FM4, ORF, 26 June 2019, https://fm4.orf.at/stories/2987460
[iv] “U.S. Intelligence planned to destroy WikiLeaks”, WikiLeaks release, 15 March 2010, https://file.wikileaks.org/file/us-intel-wikileaks.pdf
[v] Helmut Scheben, “Assange: Es ging um ungeschützten Verkehr” (“Assange: It’s about unprotected communication”), Infosperber, 27 May 2019, https://www.infosperber.ch/FreiheitRecht/USA-Assange-Es-ging-um-ungeschutzten-Verkehr
[vi] Philip Shenon, “U.S. Urges Allies To Crack Down On WikiLeaks”, Countercurrents, 12 August 2010, https://www.countercurrents.org/shenon120810.htm
[vii] “USA prüfen Verschwörungsvorwurf gegen Assange” (“USA reviews conspiracy accusation against Assange”), Spiegel online, 16 December 2010, https://www.spiegel.de/politik/ausland/wikileaks-unter-druck-usa-pruefen-verschwoerungsvorwurf-gegen-assange-a-734943.html
[viii] Jannis Brühl, “Die Assangesche Weltformel wirkte weiter” (“The Assange-esque world formula continues to work”), Süddeutsche Zeitung online, 11 April 2019, https://www.sueddeutsche.de/digital/wikileaks-assange-haft-festnahme-trump-russland-clinton-bnd-1.4406828
[ix] Patrick Beuth, “WikiLeaks durfte Mails aus Demokraten-Hack veröffentlichen” (“WikiLeaks allowed to publish mails from Democrat hack”), Spiegel online, 31 July 2019, https://www.spiegel.de/netzwelt/web/wikileaks-durfte-mails-aus-demokraten-hack-veroeffentlichen-a-1279824.html
[x] Thomas Scripps, “Richterin Emma Arbuthnot lehnt Rücktritt wegen Befangenheit ab” (“Judge Emma Arbuthnot rejects call to withdraw over bias”), World Socialist Web Site, 15 July 2019, https://www.wsws.org/de/articles/2019/07/15/assa-j15.html
[xi] Gareth Corfield, “UK’s planned Espionage Act will crack down on Snowden-style Brit whisteblowers, suspected backdoored gear (cough, Huawei)”, The Register, 20 May 2019, https://www.theregister.co.uk/2019/05/20/espionage_act_proposal
[xii] Urs Wälterlin, “Australien: Mit Razzien den Medien Grenzen zeigen” (Australia: Showing the media boundaries with raids), Der Standard, 7 June 2019, https://www.derstandard.de/story/2000104547566/australienmit-razzien-den-medien-grenzen-zeigen
[xiii] www.wikileaks.org/about (no longer accessible), accessed 27 November 2007 and cited in Michael D. Horvath, “Wikileaks.org: An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?”, Special Report, Army Counterintelligence Center, 18 March 2008, published in “U.S. Intelligence planned to destroy WikiLeaks”, WikiLeaks release, 15 March 2010
[xiv] Milosz Matuschek, “Die Causa Julian Assange: Ist die westliche Wertegemeinschaft von allen guten Geistern verlassen?” (“The case of Julian Assange: Has the Western community of values taken leave of its senses?”), Neue Zürcher Zeitung online, 23 July 2019, https://www.nzz.ch/meinung/kolumnen/die-causa-julian-assange-ist-die-westliche-wertegemeinschaft-von-allen-guten-geistern-verlassen-ld.1497486