The Persecution of Assange

The issue in this case is simple: should foreign citizens who expose criminal wrongdoing by the United States government be forcibly kidnapped, brought to this country, and thrown into a hole for the rest of their lives?

Julian Assange is an Australian citizen being prosecuted by the United States government for publishing classified information about U.S. conduct in the country’s illegal wars, including direct evidence of U.S. war crimes and previously unreported civilian deaths. Because the United States government takes the position that it is a criminal offense to publish certain kinds of embarrassing information, and because Assange brazenly and contemptuously thumbed his nose at the U.S. government, the Biden administration is continuing an effort by the Trump administration to imprison Julian Assange for the rest of his life.1 With UK courts declining to block Assange’s extradition, it looks like Assange may soon be transferred from the U.K. to the U.S. to stand trial. The consequence, if the prosecution is successful, will be that anyone else thinking of violating the government’s rules in order to expose its crimes will need to be willing to give up the rest of their life in order to do so. 

In news reporting about the Assange case, some of the most important facts often slip out of the discussion. Too much focus on Julian Assange as a person draws attention away from the underlying disclosures that landed him in hot water in the first place. Let us first remember that what we are talking about, when we talk about the conduct that gave rise to Assange’s prosecution, is WikiLeaks’ release of documents that the U.S. government did not want disclosed. These documents contained information vitally useful for the public to assess U.S. conduct in the Middle East, and revealed outright crimes by our government that had not been reported on before. 

The facts, briefly: In 2010, U.S. Army intelligence analyst Chelsea Manning gave Julian Assange and WikiLeaks a large trove of internal military documents related to the wars in Iraq and Afghanistan. In partnership with news organizations like the New York Times and the Guardian, WikiLeaks began disclosing the documents, making certain redactions in cases where release of the information might put lives in danger.

We learned important information from the WikiLeaks disclosures. The BBC reported that they revealed “many previously unreported instances in which U.S. forces killed civilians at checkpoints and during operations.” The documents describe how hundreds of civilians were killed for coming too close to U.S. checkpoints, including pregnant women and the mentally ill. In several heartbreaking incidents, pregnant women being rushed to the hospital were shot dead by U.S. troops who were spooked by the speed of their cars. There was no accountability for these depraved killings. 

In one astonishing criminal act, an Apache helicopter gunship crew fired on and killed two men who they knew were attempting to surrender, because a U.S. military legal adviser said that they could not surrender to a helicopter and were “still valid targets.” This was utterly bogus legal advice,2 and shooting people who are trying to surrender is one of the most flagrant possible violations of the laws of war, prohibited since the 1907 Hague Convention. 

Perhaps the most infamous of the material made public by WikiLeaks was a video of a 2007 helicopter attack in Baghdad, in which U.S. forces killed two Reuters journalists, opening fire on one of them after having already severely wounded him, as civilians came to try to help him. As veteran Middle East journalist Patrick Cockburn writes of the video: 

The video still has the power to shock. The two helicopter pilots exchange banter about the slaughter in the street below: ‘Ha, ha, I hit them,’ one says. ‘Oh yeah, look at those dead bastards,’ the other says. They have mistaken the camera held by one of the journalists for a rocket-propelled grenade launcher, unlikely though it was that armed insurgents would stand in the open in Baghdad with a US helicopter hovering overhead. They shoot again at the wounded as one of them, probably the Reuters assistant Saeed Chmagh, crawls towards a van that has stopped to rescue them. When the pilots are told over the radio that they have killed a number of Iraqi civilians and wounded two children, one of them says: ‘Well, it’s their fault for bringing their kids into the battle.’

There was far more, including the fact that “US authorities failed to investigate hundreds of reports of abuse, torture, rape and even murder by Iraqi police and soldiers” and had “a formal policy of ignoring such allegations.” 15,000 previously unreported civilian deaths were brought to light by the WikiLeaks documents. 

Let’s first establish clearly, then, that what Julian Assange and Chelsea Manning did was to make public information that is hugely newsworthy, and that without their actions, criminal wrongdoing by U.S. military forces would have remained unknown or unpublicized. If there is to be any chance of holding the U.S. accountable for its misuses of violent force, facts like these have to be brought to light, and if the government itself is not going to be transparent, the only option is for someone to leak the information.

A healthy response by the U.S. government to the WikiLeaks disclosures on Iraq and Afghanistan would have been to (1) investigate and prosecute criminal conduct by U.S. military forces, formally apologizing to the victims of the crimes revealed in the documents and (2) to introduce new transparency measures, so that information like this does not end up buried in classified documents and can come to light through means other than unlawful leaks. Chelsea Manning, who gave this material to WikiLeaks, should have been praised and rewarded by the Obama administration for shining a light on the real conduct of our military. 

That is not how the Obama administration responded. Obama prosecuted Manning and tortured her through solitary confinement. Facing public pressure, Obama commuted her sentence in January of 2017, but Manning was jailed again for another year after refusing to testify in a grand jury investigation of WikiLeaks. 

The Obama administration also immediately began investigating whether it could charge Julian Assange with a crime. Joe Biden called him a “high-tech terrorist.” Newt Gingrich said Assange should be treated as an “enemy combatant.” Initially, Assange was simply charged with a minor violation of the Computer Fraud and Abuse Act, for allegedly trying (and failing) to help Manning crack a government password that would have helped her maintain her secrecy. But eventually, the U.S. government piled on more charges, “indict[ing] Assange] on 17 counts of violating the Espionage Act for his role in obtaining and publishing secret military and diplomatic documents.” 

Assange’s legal situation has been more complicated than Manning’s, because there have been two separate prosecutions on different issues affecting his status. In 2010, Swedish authorities announced that Assange was under investigation for sex crimes against two women. Over the next ten years, the Swedish government would repeatedly drop and then reinstate the investigation, before dropping it entirely in 2019 when prosecutors concluded the evidence was “not strong enough to form the basis for filing an indictment” against Assange. Assange was never charged or convicted of a crime by the Swedish government, but because he could not get assurances that Sweden would not extradite him to the United States, Assange spent years living in the Ecuadorian embassy in London, which was preferable to ending up spending his life in a U.S. Supermax prison. The Swedish sexual offense investigation made Assange’s case murky and somewhat difficult to discuss, because for many years technically he was avoiding a Swedish extradition over matters unrelated to WikiLeaks, on an issue where the conduct he was accused of was not defensible, even though he insisted (accurately) that if he ever left the embassy the United States would do what it could to get hold of and prosecute him. 

Now that the Swedish investigation is long since dropped, the issue in his case is far simpler and it is clear that justice is on Assange’s side. The United States is trying to prosecute him under the Espionage Act for disclosing classified information. The U.S. is asserting a right to take a foreign citizen, kidnap them, bring them here, and punish them for violating the U.S.’s rules on what information may be disclosed about this country’s government. This is a radical move, and obviously has major implications for the rights of journalists, which is why organizations like Reporters Without Borders, the ACLU, Amnesty International, Human Rights Watch, the Committee to Protect Journalists, the Freedom of the Press Foundation, and the Center for Constitutional Rights have all called on the Biden administration to drop the prosecution.  

Even though many supporters of the rights of journalists have condemned the prosecution, some in the media still accept the government’s position that Assange is a dangerous scofflaw who belongs in prison. In a recent video, Glenn Greenwald documented the staggeringly brazen falsehoods that Joe Scarborough and Claire McCaskill told in a short segment on MSNBC about the case, including stating the following as facts: 

  1. Julian Assange stole the documents himself
  2. Julian Assange endangered human lives 
  3. Julian Assange leaked indiscriminately without any redactions 

None of these is true. #2 has been a particularly important component of the case against Assange: the idea that the Iraq and Afghanistan documents compromised crucial US intelligence assets and put people at risk. But despite absolutely exhaustive efforts to prove that harm had been done by the disclosures, the government has never been able to tie a single death to the WikiLeaks documents, in part because they were not disclosures of top secret national security information. According to Cockburn, a “team of 120 counterintelligence officers” wasn’t “able to find a single person, among the thousands of American agents and secret sources in Afghanistan and Iraq, who could be shown to have died because of the disclosures.” Government officials even admitted privately that the leaks were less damaging than their public statements suggested. The only thing the WikiLeaks disclosures damaged was vague “U.S. interests,” which in practice means the country’s preference not to have embarrassing information about its wrongdoing exposed, which might cause people to dislike us.

Because it is difficult to draw a logical distinction between what Assange did and what many journalists do every day (publishing secret leaked information thought to be in the public interest), many have rightly pointed out that the prosecution of Assange creates a very bad precedent for press freedom generally. Critics of Assange try to make the argument that he is “no journalist,” but that seems to be founded on the idea that only those who work for legacy media outlets are real “journalists,” and those who publish independently are “not journalists,” and to be an argument for a kind of press freedom that you only get if you work at the New York Times. The fact is that the publication of the war logs was an act of journalism—gathering, sifting, and publishing crucial information that it is in the public’s interest to know.

It is quite easy to find Assange unsympathetic. Many despise him for WikiLeaks’ disclosure of internal Democratic Party documents during the 2016 election, which was perceived as helping Donald Trump, or argue that he is associated with Holocaust deniers or the Russian government. It doesn’t help that some of Assange’s supporters viciously smeared his accusers in the Swedish case, who have put forward credible claims against Assange

But we must not lose sight of the fact that Assange’s indictment under the Espionage Act poses a serious threat to liberty and sets a dangerous precedent against journalists. Assange may not be a sympathetic individual personally, but many criminal defendants are not. Those who defend Assange’s prosecution can insist Assange is “not a journalist,” but they have no satisfactory answer to the question of how the public is supposed to find out about U.S. atrocities, particularly if those atrocities are classified and anyone who discloses them is punished with a prison sentence. If Assange is successfully prosecuted, it will give the U.S. military greater license to commit horrible abuses, knowing that there is no legal way to expose them, and that anyone who tries will risk spending the rest of their lives in prison. 

We know that the United States government commits atrocities with impunity, and does everything it can to cover up the facts. The New York Times recently reported, based on classified documents it obtained only after a long Freedom of Information Act tussle, that there has been a longstanding pattern of disastrous civilian casualties in U.S. airstrikes in the Middle East, with scores of children being killed because of the military’s lazy approach to assessing their targets. Nobody is ever punished for the “mistakes” (a rather gentle word to describe what we are actually talking about, which is forcing parents to watch their children die gruesome and totally pointless deaths). We know that this is what our government does when it is not being watched and there is nobody to stop it or punish it. This is why the 2010 WikiLeaks disclosures were a vital public service. What we are talking about when we talk about the prosecution of Assange is whether exposing war crimes will be punished or not. If it is punished, then war crimes are less likely to be exposed, which means they are more likely to happen. The government has tried to argue (without any evidence) that lives were put at risk by Assange’s disclosures. In fact, the opposite is the case: punishing the disclosures puts lives at risk, by ensuring that future murders will be kept secret. 

It will be argued, of course, that Assange broke the law, and because he broke the law, the question of “justice” does not arise. Indeed, because the Espionage Act is an absurdly broad set of prohibitions, Assange may find that under U.S. interpretation of U.S. law, he did engage in illegal conduct. (Although because the Constitution trumps domestic law, to the extent that the Espionage Act does criminalize basic freedom of the press, it is unconstitutional thanks to the First Amendment’s guarantee of press freedom. If he is guilty under the law, then the law itself is illegal, so long as the First Amendment retains any force.) 

But even if we assume that U.S. law prohibits this kind of journalism, prosecution is a choice. A rule that should guide prosecutors is that when lawbreaking ultimately serves the public interest, which it sometimes does, mercy should be shown. Sometimes breaking the law is necessary, because the legal regime is incapable of providing a just result. If someone trespasses to save a life, only a fool would care more about the offense of trespassing than the life saved, and a sensible prosecutor would understand that it is a bad idea to punish Good Samaritans who happen to break rules in order to be socially useful. That is why prosecutors have discretion given to them: because not every violation of law should be given a prison sentence. Violations of law that cause harm should be distinguished from violations of law that are necessary because there is no lawful way to achieve an important public service. 

Manning and Assange had to break the law because there was no legal way to provide the public with this important information. We need to recognize that if Assange is legally guilty, it is a sign that our laws are in major need of reform, because conduct that is squarely in the public interest is being punished. The Biden administration now faces a stark question: does it care more about stopping and punishing the murder of civilians by U.S. military forces, or more about enforcing secrecy rules for their own sake and punishing the act of exposing wrongdoing? So far, it seems their answer is that they care more about the rules than about justice. 

For more on this case, listen to this Current Affairs podcast episode with UN Special Rapporteur on Torture Nils Melzer, author of The Trial of Julian Assange.

  1. The Obama administration was also attempting to prosecute Assange but the Trump Justice Department added many additional charges that carry hefty sentences. 

  2. Claude Bruderlein, director of Humanitarian Policy and Conflict Research at Harvard, calls it “ridiculous, absolutely unacceptable.” 

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