Above photo: Julian Assange. YouTube screenshot.
As people worldwide celebrate the UN’s World Press Freedom Day on 3 May, WikiLeaks publisher and journalist Julian Assange remains incarcerated.
The US continues to demand Assange’s extradition for his role in obtaining and publishing national defence documents from 2009 to 2011. The leaks, provided by US Army whistleblower Chelsea Manning, are known as the Guantanamo Files, the Iraq War Logs, the Afghan War Diary, and the US diplomatic cables (aka Cablegate).
There are noteworthy parallels which can be drawn between Assange’s case and that of famed US Pentagon Papers whistleblower Daniel Ellsberg. Ellsberg was a former senior adviser and analyst with the defence and state departments during the Vietnam War. And in fact, he was prosecuted by US president Richard Nixon’s administration with the very same law now being used against Assange.
Ellsberg and Assange each helped to reveal war crimes and other criminality by the US government. They were both subjected to warrantless wiretapping and violations of their privileged communications. And they both faced possible assassination, or at least the risk of serious harm, at the US government’s hands.
Evidence of government misconduct ultimately led to the judge dismissing the case against Ellsberg in May 1973. But in Assange’s case, district judge Vanessa Bairatser either ignored or downplayed the significance of state misconduct directed towards Assange, his family, and his lawyers. Had it not been for her conclusion that Assange was at substantial risk of suicide should he be extradited, judge Baraitser would have granted the US government’s extradition request.
Revealing war crimes
Both Ellsberg and Assange helped bring to light information about war and international politics that was demonstrably in the public interest.
Ellsberg, who unlike Assange is a US citizen, worked for the government and was the one who leaked the documents. His revelations exposed the myriad of lies and secrets, over four separate presidencies, that facilitated the US invasion of Vietnam. Lies which ultimately led to a war responsible for killing around 3.8 million Vietnamese people (with one estimate as high as 7.3 million). It was also responsible for killing over 58,000 US soldiers and tens of thousands of Laotians and Cambodians. The war also resulted in up to 500,000 women turning to sex work. And it saw the US military dump 70 million litres of highly toxic herbicides, namely, “Agent Orange”, throughout the countryside.
Ellsberg’s charges related to him copying the Report of the Office of The Secretary of Defense Vietnam Task Force (aka Pentagon Papers). He then passed these on to the New York Times and Washington Post. The outlets proceeded to publish excerpts. But his leaks were ultimately dwarfed in size by the 700k documents Manning passed on to WikiLeaks in 2009 and 2010.
Ellsberg told the court in Assange’s extradition case:
“these 7,000 pages of top secret documents demonstrated that the conduct of the war in Vietnam had, over more than one administration, been started and continued by the US Government in the knowledge that it could not be won
He added “that President Johnson and his administration had lied to Congress and to the public in relation to its origins, costs and prospects”.
Assange and WikiLeaks’ publications similarly revealed war crimes. These include the massacre of 18 Iraqis (as seen in the notorious Collateral Murder video), an estimated 15,000 previously unknown civilian deaths, and widespread torture of detainees. The documents also exposed state wrongdoing. For example, US government pressuring Germany not to prosecute CIA officers for their role in the kidnapping and brutal torture of German citizen Khaled El-Masri.
Abusing The Espionage Act
The 1917 Espionage Act was supposedly created to prosecute spies during WWI. Yet neither the indictments against Ellsberg nor Assange ever alleged that either was working as a spy.
The act was notoriously used by Woodrow Wilson’s government to successfully prosecute thousands of Americans simply for opposing US involvement in the First World War.
Meanwhile, Assange faces up to 175 years imprisonment. 17 of the charges are filed under the Espionage Act, making up 170 years of the total. If he’s extradited, Assange will also make history as the first publisher to ever be prosecuted under the Espionage Act – simply for obtaining and publishing government secrets.
James Goodale represented the New York Times when Nixon tried to stop them from publishing the Pentagon Papers. He recently told journalist Kevin Gosztola:
I do not think that [Assange] should be tried under the Espionage Act, because the act was designed for espionage and not for reporting the truth, which is what Assange did.
The final charge against Assange – one count of conspiracy to commit computer intrusions – could result in up to five years imprisonment. It originally related solely to an alleged conversation that Assange had with Manning. During this, they discussed the possibility of cracking a password ‘hash’ (something that ultimately never happened). At the last minute, the US government controversially widened the eighteenth charge to include “a vague and inexact assortment of general allegations about conduct Assange may or may not have engaged in from 2009 to 2015”.
Your motives don’t matter under the Espionage Act
Ellsberg explained to The Canary that the majority of charges against Assange under the Espionage Act are “strict liability” offences. This means that the “purpose, motivation, or even impact of the revelation is not to be considered”, he said. When Ellsberg was on trial he, “wasn’t able to answer the question ‘Why did you copy the Pentagon Papers?’. Nor has anyone of a dozen or more people who have been tried [under that act] since – mostly under Obama and Trump”.
If a defendant attempts to raise their motivations when being tried under the Espionage Act, Ellsberg explained, the judge will shut them down.
This is also a point made recently by CIA whistleblower Jeffrey Sterling. Sterling was tried for allegedly blowing the whistle on a botched CIA programme targeting Iran’s nuclear facility. It’s a charge he vehemently denies, despite being convicted. Sterling told Jacobin:
The jury pool from which they will be selecting in the Eastern District of Virginia is made up of individuals who all have some sort of tie — family, their own experience — to the intelligence community or the military apparatus there.
He also said:
I think that court has, time and time again, shown itself to be pro-CIA and pro-US government, and pretty much allowed the government to rule the case and take it in whatever direction they want. And that’s going to be to paint Julian in the worst light, with a favourable jury, and, overall, to go for a conviction.
Warrantless wiretapping and unlawful surveillance
Both Ellsberg and Assange faced warrantless wiretapping and the unlawful interception of privileged and private communications.
A ‘clandestine unit‘ of Cuban Americans working for the White House “Plumbers” broke into the office of Ellsberg’s psychiatrist. They were looking for confidential information about the whistlblower’s mental state with which to discredit or blackmail him, Ellsberg said.
The FBI also, 15 times, illegally recorded Ellsberg’s conversations with Morton Halperin, a staffer on the US National Security Council. This fact only became public during Ellsberg’s trial.
The Ecuadorian government originally hired Spanish firm UC Global to provide security for their embassy in London while Assange was an asylee there. As The Canary previously noted, the firm started to spy on Assange, his visitors and lawyers on behalf of the US government. This is according to what two UC Global whistleblowers later told Westminster Magistrates’ Court. UC Global placed the inside of the embassy under audio/visual surveillance at the request of their “American friends”. And it even directed a live video feed of the surveillance back to the US.
David Morales, the CEO of UC Global, is currently facing trial in Spain for his alleged role in this criminal conspiracy. He “indicated that the aim was that the surveillance, control of information and recordings should focus on the meetings of the asylee”. Assange’s lawyers in particular were deemed “priority targets” for surveillance. So much so that even the toilets in the embassy were bugged with microphones.
To block laser microphones from the building across the street from picking up conversations inside the embassy, Assange started to use a white noise machine. According to one of the whistleblowers, stickers were placed on the embassy windows to counteract the vibrations from the machine.
Plots of grievous bodily harm or even assassination
Ellsberg also told The Canary about “an attempt on my life or an attempt to incapacitate me again” by the “Plumbers”.
Ellsberg said that on 3 May 1972:
on the orders of the oval office, 12 CIA assets, employees and contractors for the CIA in the Bay of Pigs, were brought up from Miami to ‘incapacitate, Daniel Ellsberg, totally’
He explained the findings of a special prosecutor’s investigation. The prosecutor interpreted this “as meaning they meant to kill me, [though] it’s not clear. I think the main purpose was to make sure I stopped talking”. One of the assets testified “that his assignment was to break both my legs”, Ellsberg said. “But, I think that wouldn’t have been enough to shut me up, so I think they did mean to go beyond that”.
Assange likewise faced possible serious injury or death at the hands of the US government or its assets.
One of the UC Global employees, in his affidavit to the court, explained that around December 2017 Morales told his staff[pdf, pg 7] that the Americans “were desperate”. And Morales “even suggested that more extreme measures” should be employed against Assange. These specifically included the possibility of kidnapping him or “even the possibility of poisoning Mr. Assange”.
The two radically different decisions
Despite the clear similarities between the two cases, the determinations by the judges in Ellsberg’s trial and Assange’s extradition hearing diverge markedly.
Judge Matthew Byrne believed that the charges against Ellsberg and his co-defendant raised “serious factual and legal issues”. But the government misconduct which came to light was simply too much for him to ignore.
In dismissing the case against Ellsberg, judge Byrne said:
the conduct of the government has placed the case in such a posture that it precludes the fair dispassionate resolution of these issues by a jury
Byrne concluded that the:
totality of the circumstances of this case” offend “a sense of justice”. “The bizarre events have incurably infected the prosecution of this case…. I am of the opinion, in the present status of the case, that the only remedy available that would assure due process and the fair administration of justice is that this trial be terminated
By contrast, judge Baraitser was not swayed by the evidence of misconduct directed towards Assange or his legal team.
Baraitser wrote in her judgement that “it would be inappropriate for this court to make findings of fact on allegations still being investigated in Spain and on the basis of partial and incomplete evidence”. Paradoxically, by that logic, if the Spanish government decided not to launch a prosecution against Morales, the UC Global whistleblower testimony might have carried greater weight.
It’s unclear why an ongoing prosecution of Morales in Spain should have any bearing on Baraitser’s ability to weigh the reliability of the statements from UC Global employees. The case before Baraitser required her to consider whether Assange should be extradited. It did not require her to make a legal finding as to the guilt or innocence of Morales.
Baraitser also determined, perhaps somewhat naïvely, that there’s “no reason to assume” the surveillance of Assange and his lawyers related to the US case against him. The US government “would be aware that privileged communications and the fruits of any surveillance would not be seen by prosecutors assigned to the case”. Baraitser said any such evidence would be “inadmissible at Mr. Assange’s trial as a matter of US law”. This finding also misses the seriousness of the alleged criminal conduct and violation of Assange’s legal professional privilege. This would stand irrespective of whatever evidence is ultimately used from the surveillance in a future trial.
The case is ongoing
The US government has appealed Bairatser’s decision not to extradite Assange on health grounds. And its application, along with a reply from the defence, is being considered by the High Court. The defence has also filed a cross-appeal, which also seeks to challenge at least some of Baraitser’s findings.
US president Joe Biden has claimed that his presidency will mark a break from that of former president Donald Trump, including in relation to attacks against the press. But his government remains committed, at least for now, to Assange’s prosecution for his role in revealing war crimes, crimes against humanity, and other forms of wrongdoing by the state.