[Continued from Part
I]
II.
The Context
1. A Dilemma
At the outset we are confronted with a dilemma of sorts: given that our primary focus is on the legal case against Assange, how much weightage should we give to Assange's and Wikileaks's ongoing political battle with the US administration, the outermost layer so to speak? There are some who argue that the two are not connected, and that Assange's persecution derives exclusively from his alleged sexual misconduct. This view is shared by even those who style themselves liberals, such as Kevin Huffman of The Washington Post. Responding to Michael Moore's $20,000 contribution towards Assange's bail, he writes, "Moore asserts that Assange is under attack solely because he had the courage to expose American war crimes . . .. Well, that and allegedly assaulting innocent women (one awake and one asleep)." In the very next paragraph, he goes on to say:
The problem here is that it is inaccurate on two major counts. Assange has not been accused of rape in any formal sense: not till date, and certainly not in 2010 when the article was written (the author himself betrays some confusion on the point, since in the preceding paragraph he describes Assange as allegedly assulting women). Furthermore, when was the last time America started a "unilateral war" (whatever that means) because its efforts at diplomacy were frustrated by document leaks? Thus Huffman's perspective fails as a general critique of Assange and also, and more important to us, as a justification for separating the legal aspects of the Assange case from the political. In fact he achieves the opposite of what presumably he had set out to do: he focusses attention on the shortcomings of the views he espouses. If the legal basis of the action against Assange is so tenuous, then why at all has it been undertaken? Is it to satisfy objectives that lie beyond the legal, perhaps even in the realm of the political? And equally pertinently, why is there so much misinformation spread about Assange? The very existence of these issues urges a closer look at the political background, if only to serve as the context in which the legal issues should be examined.
2. Official and Unofficial US Stances
The role Assange and his Wikileaks team has played in procuring and disclosing top-secret information in the public interest is well known. By revealing hidden truths on the "war on terror", he inflicted on the American military, security and political establishment arguably more embarrassment than it has ever had to face. The establishment's response has been one of unprecedented ferocity. In 2010, President Obama declared Assange's actions to be "deplorable". Robert Gibbs, then the White House Press Secretary, went on record saying "Wikileaks and people that disseminate information to people like this are criminals" (as the reporter wryly pointed out, this amounted to declaring Assange guilty even before charges have been framed). At a press briefing, P. J. Crowley, then Assistant Secretary at the State Department, accused him of pursuing a hidden political agenda and trying to undermine international cooperation. (Ironically, in 2011 Crowley himself resigned as State Department spokesperson over the harsh treatment of suspected Wikileaks source Bradley Manning.)
Not surprisingly, Republican leaders have been even more scathing in their criticism. Newt Gingrich has claimed he is engaging in terrorism; Muke Huckabee reportedly demanded he be given the death penalty. Sarah Palin seems to have gone a step further. According to the Christian Science Monitor, her tweets described Wikileaks's acts as "treasonous", and suggested the administration use "all necessary means to respond to and defeat WikiLeaks." It is not clear whether she considers "all necessary means" to include extra-legal measures such as kidnapping or assassination; however, the statement is certainly suggestive. But this is not to say such egregiousness is restricted to Republicans alone. Without doubt the finest gem I have encountered so far is a statement made on the Fox Business Show by Bob Beckel, a Fox News analyst close to the Democratic Party: "This guy's a traitor, he's treasonous, and he has broken every law of the United States. And I'm not for the death penalty, so...there's only one way to do it: illegally shoot the son of a bitch." It is difficult to say which idea is more amusing: that illegally killing a person is the right way to deal with a person who has supposedly broken "every law of the United States", or that the moral repugnance associated with lawful execution does not apparently extend to illegal assassination.
In contrast to the strong, at times over-the-top, reactions seen, the response of the US government appears surprisingly low-key. So far, its most visible actions are the dubious expedient of extra-judicially coercing banks and credit card companies into rescinding their contracts with Wikileaks. I had briefly referred to a prevalent contention that even the extradition case comprises a questionable tactic of this nature: the rape and other charges against him are a mere pretext to get him to Sweden, from where he can be extradited or "temporarily surrendered" (or some other euphemism-ed) to the United States. Extradition law experts such as Julian Knowles QC consider this possibility unlikely for a variety of reasons, including procedural issues and the overriding application of Article 10, ECHR and the First Amendment to the US Constitution. Regardless, the question still remains: why would US resort to such underhand tactics in the first place? If its case is anywhere near as strong as the statements in the previous paragraph suggest, then surely it can prosecute its interests in a legitimate manner?
Actually no, that is precisely where the US stance falters. Assange's guilt is still a matter of conjecture. Palin's and Beckel's claims of treason against America are clearly invalid, because treason can be committed only against one's own country, and Assange is a citizen of Australia (even the Christian Science Monitor report on Palin's tweets points this out). A Washington Post article dating back to 2010 points out that prosecution under the Espionage Act, 1917 will be difficult, since subsequent to its passing several Supreme Court decisions have expanded the ambit of First Amendment protections. Secondly, the documents leaked by Wikileaks have been published in several mainstream newspapers: hence "How do you prosecute Julian Assange and not the New York Times?" Notwithstanding these problems, the Post article reports several sources including Attorney General Eric H. Holder as saying investigations are ongoing and charges could be filed under the 1917 Act. That was two years ago. Till date, the US administration has neither formally instituted proceedings against him, nor even issued any authoritative statement as to which legal provisions he is supposed to have violated.
Recent reports, however, indicate US government lawyers have not only prepared a secret indictment, but have also convened a secret grand jury (see Dorling, Suroor). (Ironically, this information comes to us through further Wikileaks revelations.) If true, it only makes us wonder what purpose this cloak-and-dagger act is intended to serve. A possibility is that the indictment is based on grounds so weak that straightforward extradition requests based on it might not succeed. It might be speculated that this is also the reason behind the extraordinarily convoluted strategy of extraditing Assange first to Sweden and then to America, and then finally prosecuting him. Possession is truly nine-tenths of the law. In any case, the secrecy behind the indictment only succeeds in lending credence to theories that the rape charges are actually intended to get him to the United States.
3. The Justifications
From this increasingly murky scenario, we can identify two different sets of claims. The first restricts itself to the parameters of the law. It seeks that Assange should be executed, or at least severely punished; this necessarily presupposes Assange's acts are punishable under US law. The second postulates that regardless of what the law says, whatever Assange has done is just plain wrong, and he should be punished for it even if it means going beyond the ambit of the law. Though the two appear distinct, the space between the two is filled with several intermediate positions, comprising blends of the legal and the extra-legal in varying proportions. The preparation of a secret indictment suggests rendering Assange to US through indirect means, and then prosecuting him under law once he arrives in America. A variation on this theme entails trying him in secret, where he may possibly be denied certain due-process rights defendants are usually invested with in criminal trials. How far this is possible is a moot question, since Assange is not a member of the US military, and is therefore subject to the jurisdiction of civilian courts.
The character of the claims determine the justification they require. Those claims that restrict themselves to within the law must derive justification through the law. Those that recommend extra-legal measures must establish that the concerned acts are so heinous as to render extra-legal measures ethically and morally acceptable if legally doubtful. This may be applied mutatis mutandis to hybrid claims also; each separate element within the claim will then need to be justified according to its legal or extra-legal character. It is not necessary to go into the specifics of this issue. All we need to acknowledge is that justifying any action against Assange comprises an onerous task. And secondly, notwithstanding these difficulties, it is necessary in the interests of free society for state and international agencies to justify their actions in this manner. Doing otherwise will only validate Pilger's comment on descending into totaliarianism.
As against this, how much substantiation has actually been provided in the Assange matter? Here we encounteer several problems. How do you justify secret indictments or extradition arrangements? Official sources cannot do so, for they are, well, secret and hence cannot be acknowledged. Others are also handicapped by this secrecy, because they must justify not only the indictments and other measures, but also the secrecy behind them. Official and independent commentators alike are impeded in justifying legal measures generally: one cannot justify legal action unless it is known what crime Assange is charged with. Attempts like Marc Thiessen's 2010 article are typical. He begins by asserting: "Let's be clear: WikiLeaks is not a news organization; it is a criminal enterprise." Just two sentences later the assertion trails off into weasel-words and equivocations: "These actions are likely a violation of the Espionage Act, and they arguably constitute material support for terrorism." (emphasis added)
Then come justifications rooted not in law but in certain facts perceived as wrongs in themselves regardless of legal backing. Of them, the most reiterated equates Assange to a terrorist waging a cyber-war against US (McFarland, Sarah Palin quoted in Beckford). Another popular conjecture is that these leaks are jeopardising America's relations with other countries (see Huffman, Collins). Theissen's article suggests the murder of valuable collaborators, by revealing their identity, which extrapolates into a threat to the "War on Terror" in general. The problem with all these is that they are either so far-fetched as to not merit any serious consideration (example: cyber-terrorism) or mere conjectures which are yet to be verified in any meaningful sense of the term. Another class of justifications gather around the notion that harm caused to US interests constitute ipso facto a cause of action. This rather uninformed thinking fails to distinguish between legitimate and illegitimate threats to national interests. The first is indistinguishable from the facts-perceived-as-wrongs-in-themselves class of justification. And the second is no justification at all; one might as well declare China a threat to US economic interests merely because it produces goods cheaply.
To conclude, then, we find that there has been serious attempt made to justify projected US actions. This remains true notwithstanding that justifications are essential to the 'free world' of which America claims to be a leading member. It is against this backdrop that we must examine the legal issues involved in the Assange case.
[Continued in Part III]
At the outset we are confronted with a dilemma of sorts: given that our primary focus is on the legal case against Assange, how much weightage should we give to Assange's and Wikileaks's ongoing political battle with the US administration, the outermost layer so to speak? There are some who argue that the two are not connected, and that Assange's persecution derives exclusively from his alleged sexual misconduct. This view is shared by even those who style themselves liberals, such as Kevin Huffman of The Washington Post. Responding to Michael Moore's $20,000 contribution towards Assange's bail, he writes, "Moore asserts that Assange is under attack solely because he had the courage to expose American war crimes . . .. Well, that and allegedly assaulting innocent women (one awake and one asleep)." In the very next paragraph, he goes on to say:
I'm not
sure which piece of the
whole episode offends me the most: Putting up bail money for an accused
rapist you don't know simply because you like his politics? Defending
the release of documents that harm confidential American diplomacy
(i.e. the very efforts that may help keep us from entering unilateral
wars in the first place)? Or the crushing blow this strikes against my
deeply held belief that the far right is crazier than the far left?
The problem here is that it is inaccurate on two major counts. Assange has not been accused of rape in any formal sense: not till date, and certainly not in 2010 when the article was written (the author himself betrays some confusion on the point, since in the preceding paragraph he describes Assange as allegedly assulting women). Furthermore, when was the last time America started a "unilateral war" (whatever that means) because its efforts at diplomacy were frustrated by document leaks? Thus Huffman's perspective fails as a general critique of Assange and also, and more important to us, as a justification for separating the legal aspects of the Assange case from the political. In fact he achieves the opposite of what presumably he had set out to do: he focusses attention on the shortcomings of the views he espouses. If the legal basis of the action against Assange is so tenuous, then why at all has it been undertaken? Is it to satisfy objectives that lie beyond the legal, perhaps even in the realm of the political? And equally pertinently, why is there so much misinformation spread about Assange? The very existence of these issues urges a closer look at the political background, if only to serve as the context in which the legal issues should be examined.
2. Official and Unofficial US Stances
The role Assange and his Wikileaks team has played in procuring and disclosing top-secret information in the public interest is well known. By revealing hidden truths on the "war on terror", he inflicted on the American military, security and political establishment arguably more embarrassment than it has ever had to face. The establishment's response has been one of unprecedented ferocity. In 2010, President Obama declared Assange's actions to be "deplorable". Robert Gibbs, then the White House Press Secretary, went on record saying "Wikileaks and people that disseminate information to people like this are criminals" (as the reporter wryly pointed out, this amounted to declaring Assange guilty even before charges have been framed). At a press briefing, P. J. Crowley, then Assistant Secretary at the State Department, accused him of pursuing a hidden political agenda and trying to undermine international cooperation. (Ironically, in 2011 Crowley himself resigned as State Department spokesperson over the harsh treatment of suspected Wikileaks source Bradley Manning.)
Not surprisingly, Republican leaders have been even more scathing in their criticism. Newt Gingrich has claimed he is engaging in terrorism; Muke Huckabee reportedly demanded he be given the death penalty. Sarah Palin seems to have gone a step further. According to the Christian Science Monitor, her tweets described Wikileaks's acts as "treasonous", and suggested the administration use "all necessary means to respond to and defeat WikiLeaks." It is not clear whether she considers "all necessary means" to include extra-legal measures such as kidnapping or assassination; however, the statement is certainly suggestive. But this is not to say such egregiousness is restricted to Republicans alone. Without doubt the finest gem I have encountered so far is a statement made on the Fox Business Show by Bob Beckel, a Fox News analyst close to the Democratic Party: "This guy's a traitor, he's treasonous, and he has broken every law of the United States. And I'm not for the death penalty, so...there's only one way to do it: illegally shoot the son of a bitch." It is difficult to say which idea is more amusing: that illegally killing a person is the right way to deal with a person who has supposedly broken "every law of the United States", or that the moral repugnance associated with lawful execution does not apparently extend to illegal assassination.
In contrast to the strong, at times over-the-top, reactions seen, the response of the US government appears surprisingly low-key. So far, its most visible actions are the dubious expedient of extra-judicially coercing banks and credit card companies into rescinding their contracts with Wikileaks. I had briefly referred to a prevalent contention that even the extradition case comprises a questionable tactic of this nature: the rape and other charges against him are a mere pretext to get him to Sweden, from where he can be extradited or "temporarily surrendered" (or some other euphemism-ed) to the United States. Extradition law experts such as Julian Knowles QC consider this possibility unlikely for a variety of reasons, including procedural issues and the overriding application of Article 10, ECHR and the First Amendment to the US Constitution. Regardless, the question still remains: why would US resort to such underhand tactics in the first place? If its case is anywhere near as strong as the statements in the previous paragraph suggest, then surely it can prosecute its interests in a legitimate manner?
Actually no, that is precisely where the US stance falters. Assange's guilt is still a matter of conjecture. Palin's and Beckel's claims of treason against America are clearly invalid, because treason can be committed only against one's own country, and Assange is a citizen of Australia (even the Christian Science Monitor report on Palin's tweets points this out). A Washington Post article dating back to 2010 points out that prosecution under the Espionage Act, 1917 will be difficult, since subsequent to its passing several Supreme Court decisions have expanded the ambit of First Amendment protections. Secondly, the documents leaked by Wikileaks have been published in several mainstream newspapers: hence "How do you prosecute Julian Assange and not the New York Times?" Notwithstanding these problems, the Post article reports several sources including Attorney General Eric H. Holder as saying investigations are ongoing and charges could be filed under the 1917 Act. That was two years ago. Till date, the US administration has neither formally instituted proceedings against him, nor even issued any authoritative statement as to which legal provisions he is supposed to have violated.
Recent reports, however, indicate US government lawyers have not only prepared a secret indictment, but have also convened a secret grand jury (see Dorling, Suroor). (Ironically, this information comes to us through further Wikileaks revelations.) If true, it only makes us wonder what purpose this cloak-and-dagger act is intended to serve. A possibility is that the indictment is based on grounds so weak that straightforward extradition requests based on it might not succeed. It might be speculated that this is also the reason behind the extraordinarily convoluted strategy of extraditing Assange first to Sweden and then to America, and then finally prosecuting him. Possession is truly nine-tenths of the law. In any case, the secrecy behind the indictment only succeeds in lending credence to theories that the rape charges are actually intended to get him to the United States.
3. The Justifications
From this increasingly murky scenario, we can identify two different sets of claims. The first restricts itself to the parameters of the law. It seeks that Assange should be executed, or at least severely punished; this necessarily presupposes Assange's acts are punishable under US law. The second postulates that regardless of what the law says, whatever Assange has done is just plain wrong, and he should be punished for it even if it means going beyond the ambit of the law. Though the two appear distinct, the space between the two is filled with several intermediate positions, comprising blends of the legal and the extra-legal in varying proportions. The preparation of a secret indictment suggests rendering Assange to US through indirect means, and then prosecuting him under law once he arrives in America. A variation on this theme entails trying him in secret, where he may possibly be denied certain due-process rights defendants are usually invested with in criminal trials. How far this is possible is a moot question, since Assange is not a member of the US military, and is therefore subject to the jurisdiction of civilian courts.
The character of the claims determine the justification they require. Those claims that restrict themselves to within the law must derive justification through the law. Those that recommend extra-legal measures must establish that the concerned acts are so heinous as to render extra-legal measures ethically and morally acceptable if legally doubtful. This may be applied mutatis mutandis to hybrid claims also; each separate element within the claim will then need to be justified according to its legal or extra-legal character. It is not necessary to go into the specifics of this issue. All we need to acknowledge is that justifying any action against Assange comprises an onerous task. And secondly, notwithstanding these difficulties, it is necessary in the interests of free society for state and international agencies to justify their actions in this manner. Doing otherwise will only validate Pilger's comment on descending into totaliarianism.
As against this, how much substantiation has actually been provided in the Assange matter? Here we encounteer several problems. How do you justify secret indictments or extradition arrangements? Official sources cannot do so, for they are, well, secret and hence cannot be acknowledged. Others are also handicapped by this secrecy, because they must justify not only the indictments and other measures, but also the secrecy behind them. Official and independent commentators alike are impeded in justifying legal measures generally: one cannot justify legal action unless it is known what crime Assange is charged with. Attempts like Marc Thiessen's 2010 article are typical. He begins by asserting: "Let's be clear: WikiLeaks is not a news organization; it is a criminal enterprise." Just two sentences later the assertion trails off into weasel-words and equivocations: "These actions are likely a violation of the Espionage Act, and they arguably constitute material support for terrorism." (emphasis added)
Then come justifications rooted not in law but in certain facts perceived as wrongs in themselves regardless of legal backing. Of them, the most reiterated equates Assange to a terrorist waging a cyber-war against US (McFarland, Sarah Palin quoted in Beckford). Another popular conjecture is that these leaks are jeopardising America's relations with other countries (see Huffman, Collins). Theissen's article suggests the murder of valuable collaborators, by revealing their identity, which extrapolates into a threat to the "War on Terror" in general. The problem with all these is that they are either so far-fetched as to not merit any serious consideration (example: cyber-terrorism) or mere conjectures which are yet to be verified in any meaningful sense of the term. Another class of justifications gather around the notion that harm caused to US interests constitute ipso facto a cause of action. This rather uninformed thinking fails to distinguish between legitimate and illegitimate threats to national interests. The first is indistinguishable from the facts-perceived-as-wrongs-in-themselves class of justification. And the second is no justification at all; one might as well declare China a threat to US economic interests merely because it produces goods cheaply.
To conclude, then, we find that there has been serious attempt made to justify projected US actions. This remains true notwithstanding that justifications are essential to the 'free world' of which America claims to be a leading member. It is against this backdrop that we must examine the legal issues involved in the Assange case.
[Continued in Part III]
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