April 1, 2020

Law and order

Viral injustice

By Alison Broinowski
Image of Julian Assange

Julian Assange being transported from Westminster Magistrates Court, January 13, 2020. © Henry Nicholls / Reuters

Julian Assange’s extradition trial continues as an attack on journalism

A collective shudder goes round the world as the coronavirus pandemic spreads. Effectively locked up for 10 years, Julian Assange has been living under the threat of a different pathogen.

“Spreading like a virus”, is how a WikiLeaks tweet described the “crack down on national security journalism” after Australian Federal Police raids on the media in June 2019. For exercising national security journalism, Assange has recently been shuttling between Belmarsh prison and Woolwich Crown Court in the United Kingdom, fighting extradition to the United States to face espionage charges.

On March 26 his legal team applied for Assange’s bail, citing his poor health. This was briskly refused by the same district judge who sat on his extradition case, Vanessa Baraitser, who asserted that he would be likely to abscond again, and dismissed the “high risk” posed to him in Belmarsh by COVID-19.

We find it easy to criticise foreign governments when we witness their bungles and cover-ups. But what about when the authorities perverting the truth are our own – in Australia – or those of our allies, the UK and the US? When they include banks, pharmaceutical companies, politicians, police and even judges? To what threat does that expose to us all?

In all three “rule of law” countries we hear of mismanaged investigations, mistrials, proceedings in closed courts, and prejudgement and vilification of whistleblowers. In Australia, telling the truth about an internal security operation, or even knowing about one, is now a criminal offence. At least four Australians who told the truth face secretive trials, all in Canberra.

The cases of former military lawyer David McBride, lawyer Bernard Collaery and his client, Witness K, are each before a closed court. Annika Smethurst, a News Corp journalist, may be charged too. Another, an unnamed serviceman, is imprisoned in the ACT without the public knowing what for or under whose orders.

In the US, embarrassing the authorities by revealing the truth is what Chelsea Manning was jailed for – more than once – what Edward Snowden is exiled in Russia for, and what the editor of news site The Grayzone, Max Blumenthal, was arrested for in October 2019 after reporting on opposition violence outside the Venezuelan Embassy in Washington.

American expatriate journalist Glenn Greenwald was charged in January 2020 with cybercrimes in Brazil for allegedly assisting a group of hackers who intercepted the mobile phones of public officials and prosecutors. Greenwald, co-founder of online news site The Intercept, allegedly helped spread leaked messages, embarrassing a task force that was supposed to investigate corruption. It was Greenwald, remember, who in 2013 helped Edward Snowden deliver his mega-leak on American intelligence-gathering. Remember too that hacking public officials’ phones was what WikiLeaks revealed Hillary Clinton did as Secretary of State.

To expose official lies requires a courageous whistleblower and a willing publisher. The example being made of Assange and WikiLeaks is designed to deter anyone harbouring such ideas. Having published US secrets in 2010–11, Assange has been in London evading extradition ever since. He was in diplomatic exile for seven years and is now in Belmarsh prison, and in bad shape, as a result of what UN Special Rapporteur Nils Melzer describes as psychological torture.

Assange knew he would be in danger for sharing Chelsea Manning’s cache of more than 700,000 classified US documents with five news organisations in 2010. When he mentioned the risk he was taking, his critics said he was paranoid. Some were jealous of his instant celebrity. Others were fascinated.

The leaked US cables revealed American war crimes in Iraq and Afghanistan, including the infamous Collateral Murder video of a helicopter crew joking while killing unarmed civilians and two Reuters journalists in Baghdad. They revealed that Hillary Clinton, as secretary of state, ordered spying on UN officials and diplomats. They confirmed that the US tortured prisoners at Guantánamo Bay and elsewhere, that the military knew the war in Afghanistan was a disaster, and that successive administrations lied to Americans and the world about it.

When Guardian journalists Luke Harding and David Leigh revealed the encryption key to the US State Department’s cable database in their 2011 book, they were not arrested. The Guardian, Harding and Leigh blamed WikiLeaks for not adequately protecting its data. Mark Davis, an Australian journalist who was sometimes present in the Guardian “bunker” at the time, confirmed last year that Assange himself redacted 10,000 names. Journalists from The Guardian and The New York Times then published the story about the cables two days before WikiLeaks did. Eight months later, Der Freitag published them in full, and was not prosecuted.

For 10 years, the US, the UK and Australia made Assange the scapegoat, with the help of compliant media. As prime minister, Julia Gillard declared that the acts of Assange and WikiLeaks were “illegal” but could not say under what law. Senator Joe Biden called Assange a “hi-tech terrorist”, and in 2010, the now US president, Donald Trump called for the “death penalty, or something”. His administration declared WikiLeaks a “non-state hostile intelligence service”.

In 2018, Britain’s then minister of state for Europe and the Americas, Sir Alan Duncan, called Assange a “miserable little worm”, and the district judge in his bail case in 2019, Michael Snow, said he was a narcissist. Some in the media, such as former Guardian editor Alan Rusbridger, helped manufacture the narrative. Rusbridger claimed that most people fell out with Assange, and said he found him “mercurial, untrustworthy and dislikable”. He half-changed his view in May 2019, realising that press freedom was at risk.

For seven years, a Spanish agency is alleged to have surveilled Assange while he lived in the Ecuadorian embassy in London, and passed the results to the CIA. That included communications with and between his lawyers. It didn’t prevent lies being published about those who visited him, and smears about how he treated his cat. Gradually, Assange was denied his public appearances on the balcony, his internet access and, finally, his shaving kit.

Australian governments, which have gone to great lengths for arrested journalists and convicted drug smugglers, and for soccer player Hakeem al-Araibi, would do little or nothing for Assange. Al-Araibi feared extradition to Bahrain, a country with a record of vicious human rights abuses and a punitive penal culture. Assange fears facing a similar fate.

Foreign Minister Marise Payne is doing her utmost with the Chinese government on behalf of Dr Yang Hengjun, an Australian academic who has been imprisoned on espionage charges for just over a year, in arduous conditions, and in poor health. Assange’s situation is the same, except he’s been locked up for longer, and it’s the US that wants to jail him – for up to 175 years. It’s hard to avoid the conclusion that the Australian government’s view of such cases depends on who the accuser is.

The British legal system has been grinding slowly towards extraditing Assange to the US, or having Sweden do so, to face trial under America’s Espionage Act for conspiracy to commit computer intrusion, and of receiving, obtaining and disclosing national defence information without authorisation. A further indictment also accuses Assange and WikiLeaks, by revealing sources’ names, of creating “a grave and imminent risk to human life”.

Yet an American brigadier-general confirmed in 2013 what a Pentagon spokesperson said in 2010, that there was no evidence that WikiLeaks’ revelations caused the death of any named person. An Australian Defence Department task force concluded similarly that WikiLeaks revealed no “significant details about operational incidents”. In May last year , the UN Working Group on Arbitrary Detention restated its 2015 opinion that Assange was arbitrarily detained.

Assange has often asserted, as has his Australian barrister, Jennifer Robinson, that “individuals have the right to privacy. The state does not.” It’s a contention that was echoed in 2013 by more than 500 writers around the world as signatories to a statement that: “A person under surveillance is no longer free; a society under surveillance is no longer a democracy.”

In November last year, Australian MPs Andrew Wilkie and George Christensen mustered the non-partisan Parliamentary Friends of the Bring Julian Assange Home Group. Wilkie, who was in London before Assange’s extradition hearing opened in February, said Boris Johnson, Scott Morrison, and Donald Trump have made Assange their “political plaything”. But if the legal process takes several years, and if public pressure mounts, it’s yet possible that Morrison will seek to bring the Australian “ratbag” home. Should the US demand his extradition from Australia, that will be another story. The ambiguities between UK law and the UK/US extradition treaty don’t exist in Australia, and extradition may be easier. Still, the politics would be fraught.

At the late February extradition hearing in Woolwich Court, adjacent to Belmarsh prison, there were only 16 seats for the public. Four US representatives were present, one of whom made an opening statement. An Australian consular official attended for some of the time. Present throughout was former British ambassador Craig Murray, who reported in detail in his blog. Australian academic Binoy Kampmark summarised each day for the news and opinion website OffGuardian.

Every contrivable arrangement favoured the prosecution and disadvantaged Assange. He could not privately consult his lawyers, whose conversations with him had been monitored in any case. The district judge, Vanessa Baraitser, repeatedly interrupted defence counsel but not the prosecution, who had occasion to correct her on one or two points. On the final day, Baraitser read her concluding statement from a document that Murray says he saw her bring in at the start of the trial.

The defence demolished the prosecution’s case that Assange had conspired with Chelsea Manning, and that he had recklessly harmed people by releasing the documents. The prosecution argued that Assange’s actions were covered by the UK’s Extradition Act of 2003, which does not bar extradition for crimes of a political nature. The US and UK extradition treaty of 2007, which applies in all US cases, bars extradition for political offences but is not incorporated into UK law. The US representatives sought for the UK act to apply to Assange, rather the treaty.

Assange’s publications were not intended to overthrow any government, the defence said. They argued that espionage itself is a political act, and that the terms of the treaty banning extradition should apply, as should the European Convention on Human Rights.

The hearing will resume in April, for two or three more weeks. Arguments will be advanced about whether any imprisonment in the US would allow for parole, and whether Assange is fit to travel and stand trial in the first place. A long appeal process will follow, to the UK High Court and Supreme Court, with either the US or Assange as the appellant.

It is hard to see the proceedings against Assange as anything but a show trial, a long, slow process to reach a politically predetermined conclusion. If Baraitser finds for the prosecution, the Woolwich Crown Court will be widely regarded as a courtier of the United States.

Alison Broinowski

Dr Alison Broinowski, a former Australian diplomat and academic, writes on terrorism and related topics.

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