[Prefatory Note: This is a modified text of responses to questions posed by a Washington-based AlJazeera journalist, Mohamed Elmenshawy, about the plea bargain release of Julian Assange (6/25/24)]
ASSESSING THE PUNITIVE ‘RELEASE’ OF JULIAN ASSANGE
1-What do you make of the plea deal reached between the US Government and Assange?
The release of Julian Assange is long overdue, although it would have been more widely welcomed at this time if it had not been achieved within the framework of a plea bargain. More appropriate, and far less ambivalent, would have been a presidential pardon that kept the door open for future investigative journalists with the courage to reveal and comment upon inconvenient truths.
As it was, Assange after being released from prison was obliged to stop in the small city of Saipan in an Northern Marianas Island in the Western Pacific, which is actually US territory, and face espionage charges in a criminal court. To gain his freedom after 14 years on the run and in various types of confinement, Assange’s guilty plea bargain required him to plead guilty on one of a series charges against him. The US Government seemed content with Assange’s acceptance of the charge of conspiring unlawfully to obtain and disseminate classified materials.
Despite securing this guilty plea, the prosecution had agreed that it would not seek to have Assange made subject to any further punishment. His time in the UK maximum security prison at Belmarsh Prison for the past five years was apparently treated as sufficient jail time, allowing the government to claim that US espionage laws were being enforced in response to Assange’s unlawful behavior. Assange’s long confinement in the Ecuador Embassy in London for the nine years preceding confinement in Belmarsh during the long extradition legal process amounted also to a punishment for the dubious contention that Wikileaks rather than being dissident journalism was espionage, despite Assange’s diligent redaction of any material that might endanger the safety of persons named in the released classified documents. Assange was also imprisoned for 50 weeks in the UK after jumping bail to avoid being extradited to Sweden to face some alleged criminal charges of an ambiguous sexual assault.
While there exist humanitarian and principled political reasons to celebrate Assange’s freedom there are also grounds for concern and criticism. To begin with there were rather well-sourced reports that the CIA considered kidnapping or even assassinating Assange during his prolonged stay in Ecuador’s Embassy. These concerns were aggravated by insinuations that the US had helped engineer a change of government in Ecuador that resulted in the withdrawal of its grant of asylum to Assange in London. The most damaging materials that was disclosed by Wikileaks came to Assange by way of a US Army Intelligence Officer, Chelsea Manning (previously known as Bradley Manning), who transmitted 750,000 classified and diplomatic documents to Assange relating to various incidents in the Iraq and Afghanistan wars that confirmed and documented US reliance on criminal tactics that amounted to international war crimes. Manning was court-martialed for violating the Espionage Laws and was imprisoned from 2010-1017 for leaking classified materials to Assange. Her prison sentence was commuted by Obama in 2017, releasing Manning from serving out her sentence.
By treating such disclosures as espionage, as is the effect of Assange’s guilty plea, is to send all dissident journalists an intimidating signal that they could be subject to a criminal prosecution in the future. Mainstream journalists frequently address pro-government issues that are shaped by privileged access to classified government documents without facing such threats. The difference in treatment of dissident journalists whose views rarely are represented on influential establishment media platforms in the West arises from their political slant rather than from their classified character. In this instance the media performs, especially in relation to foreign policy and national security, operate as an instrument of state propaganda. In contrast, Wikileaks is primarily motivated by a radical anti-state, left populist orientation supportive of greater transparency with respect to government policy in the conduct of foreign policy.
This dissident identity leads some commentators on the political right to consider Assange to be an ‘anarchist hacker’ rather than a true journalist, and as such, deserving of punishment to the full extent of the law. They even object to the current arrangement governing his release as endangering future national security interests and the safety of those citizens who might be exposed by public disclosure, as well as those with whom US intelligence, diplomatic, and military personnel collaborate in foreign countries.
Other notable commentators argue that there exists an inevitable fuzzy line separating journalism from espionage, ‘a gray zone’ that exhibits overlapping tensions between guarding legitimate state secrets and protecting free expression. Noah Feldman of Harvard Law School has described this as a tension between ‘national security hawks’ and ‘First Amendment absolutists,’ implying that those sensible moderates who allegedly determine policy must make contextual judgments based on the character of information disclosed, the sincerity and prudence of the actor charged with release, and the effects on US credibility and security of the disclosures.
Such reasonableness, in my judgment, undermines the importance of safeguarding those that take risks to inform the citizenry about the wrongdoings of government, which contributes to the democratic quality of state/society relations. There are limits to permissible disclosure, but they should be administered with a due regard for restoring democratic vitality in an era where most of what governments hide is to keep these inconvenient truths from being known by the national citizenry and to avoid accountability procedures by what social forces ensure that government policy is respectful of applicable law. In this sense, the whistleblowing rationale challenges government claims that state secrets are integral to national security. Statist apologists purport to be concerned about sensitive information being accessed by foreign enemy governments in ways that hamper the discretion of the state to adopt pragmatically justified policies and practices.
The balancing of relevant opposing interpretations would be more persuasive if it took account of the specific identity of the state whose secrets were being revealed and the purposes of the disclosure. In this instance, the United States was acting extraterritorially in ways that harmed the people and public interests of a variety of foreign states. This is quite different from the effort of vulnerable countries, such as Iran, to view breaches of its national security plans and capabilities as crimes that deserved punishment. Such distinctions lend support to views that regard violations of constraints on disclosure as being in a grey zone that depends on interpretation and analysis of specific cases.
2-And what do you make of its timing?
It is impossible to separate the timing of this plea bargain from the presidential elections in the US. Releasing Assange relieves Biden of the burden of answering questions about a seemingly vindictive pursuit of a public spirited individual who as Australian citizen acting outside was arguably not even subject to US espionage laws, and has been forced to live a fugitive existence for the past 14 years. It is helpful to appreciate that Assange was a non-citizen acting outside the United States whose behavior and alleged criminal acts that would normally be treated as beyond the proper reach of US espionage laws, especially as the classified documents were voluntarily transmitted to him rather than stolen.
A final point powerfully made by Chris Hedges is that Assange owes his freedom, belated and grudging as it is, to the sustained support of people demonstrating on his behalf throughout the world. Without this display of people power exercised on behalf of the global public interest Hedges argues that there is every reason to suppose that if US prosecutors had earlier succeeded with their extradition efforts, Assange would be prosecuted and sent to jail for the rest of his life (he could potentially have been sentenced to 175 years in prison if found guilty by a court of all charges brought against him), or at best made to hide shamefully from American law enforcement efforts virtually forever. As important as it is to acknowledge the role of people in the streets demonstrating to demand Assange’s freedom is a recognition of the degree to which the demonstrators were affirming the acts of Assange as well as the individual. Assange was disclosing to the world what citizens of a genuine democratic world order were entitled to know and act upon.
The Assange case, following the example of Daniel Ellsberg in relation to the publication of the Pentagon Papers, shows us above all, how important it is to have brave individuals dedicated to transparent governance that is respectful of international law. It also reveals the strong support ordinary people lend to those truth-tellers and whistleblowers like Assange and Chelsea Manning. A viable democracy, more than ever in this digital age of robotics and AI, depends on governmental truthfulness and maximum transparency, this depends on protecting the role of dissident journalism and engaged citizenries. A frightening dimension of danger in these days are growing credible fears of stumbling into World War III. This is becoming a major public concern in the US and elsewhere as war mongers in Washington seem to be pushing tension toward military confrontations in a whole series of flashpoints around the world. The UN Secretary General, Antonio Guterres, has repeatedly warned of such dangers, suggesting the world is but one calculation away from a war fought with nuclear weapons.
Especially, in relation to geopolitical actors, formally freed from a legal duty to act within the framework of the UN Charter, we the people need to lend populist forms of support to the Assanges and Ellsbergs among us.
Global Justice in the 21st Century 
Julian Assange: Criminal or Benefactor?
14 AprJulian Assange: Criminal or Benefactor?
I suppose it is of interest that Donald Trump and Hillary Clinton have found something to agree about—the criminal indictment of Julian Assange. Trump is acutely vulnerable to the exposure of truth and Clinton blames her electoral defeat in 2016 partly on what WikiLeaks disclosed about her improper use of a government computer to send private emails. Such are the perverse ways of the deeply unjust.
The liberal media is not happy with this indictment, although it also wants to distance itself from justifications for Assange’s claims of journalistic privilege, viewing him as a lone wolf with rogue traits. There are solemn assessments evaluating the narrowly framed government indictment charging cyber-crime, that is, publishing illicitly obtained classified documents from a digital source, apparently an apolitical everyday occurrence for government employees. What is apparently at legal issue is deciding whether or not Assange should be protected by reference to freedom of expression or prosecuted as a cyber-criminal without reference to his motivation.
A few commentators have noted that the main reason to go after Assange is to discourage whistleblowing of the sort most prominently associated with the disclosures of Daniel Ellsberg and Edward Snowden. Here Assange is accused of conspiring with another heroic American whistleblower, Chelsea Manning, in obtaining the documents that featured 800 Guantanamo Bay ‘detainee assessment briefs’ and more than 400,000 cables and documents relating to the wars in Afghanistan and Iraq. A particularly damaging document was a video showing deliberate bombing of civilians in Iraq by American pilots, clear evidence of a serious war crime.
WikiLeaks, co-founded by Julian Assange in 2006, has been dedicated all along to the ideal of transparency in state/society relations as promoted by civil society initiatives. As such, it can be viewed as a service institution of robust democracy, a needed contemporary check on gross misuses of governmental secrecy. We know from a reading of the Pentagon Papers that what made publication so provocative was the degree to which the truths about the Vietnam War were being hidden from the American people through the misuse of classification protocols. There was little in the original twelve volumes of the Pentagon Papers that the Vietnamese ‘enemy’ did not know already. The inflammatory message of the Papers was how and why the war in Vietnam was going badly while the government was disseminating to the world a rosy picture of how well things were proceeding, which had the political effect of extending an unlawful war by years at the cost of tens of thousands American and Vietnamese lives. I remember hearing George Ball speak off the record a few days after he resigned as LBJ’s Under Secretary of State for Economic and Agricultural Affairs in the late 1960s about why he dissented from the Vietnam policies. He started his talk by saying “I only began to understand the Vietnam War when I stopped reading the cables from Saigon.” In other words, the patterns of deception were withinthe government as well as betweenthe government and the public.
We are up against a basic challenge posed by the digital age where the government operates as a citadel of surveillance, collecting meta-data on its own citizenry as well as on masses of foreigners, threatening dissent, privacy, and theessence of freedom itself. It was these concerns that led Snowden to do what he did a few years ago, and yet be pursued around the world as if a dangerous criminal, and not at first by the Trumpist right, but by the moderate center that was in political control of the government during the Obama presidency.
The republican idea of governance, that is, the founding principles of the American system of constitutional governance, relied on ‘checks and balances’ and ‘separation of powers’ to restrain excesses and abuses of power by the state. Such governance was reinforced by the first ten amendments to the U.S. Constitution that conferred an array of rights on the citizenry both as protection against an overreaching state and as protection against various manifestations of ‘the tyranny of the majority.’
The WikiLeaks role is especially important in the war/peace context as war-mongering governments tend to exaggerate, if not lie, to mobilize public support. This vital dimension of republicanism, designed to distinguish the American political undertaking from monarchies where war was often regarded as ‘the sport of kings,’ was entrusted to Congress, the legislative branch of government most directly connected with the people. The modern security state has moved away from restraints on war making as Congress has virtually abandoned its initially vital constitutional role of authorizing recourse to war. To revitalize this kind of republican democracy requires new instruments of transparency and validation of truth telling public servants. Otherwise, as in the Trump era, democratic constitutionalism can succumb to pre-fascist demagoguery.
A reinforcing observation in the American context arises from the corporatization of the media, as well as an appreciation of the unseemly recent closeness of the media to the intelligence and security governmental establishment. This has definitely weakened the independent and watchman role of journalism, especially TV, as part of the checks and balances framework in relation to the war/peace agenda, including the most trusted media outlets. Listeners of CNN, let alone FOX, know too well how debate on controversial foreign policy issues is almost exclusively entrusted to ex-generals, admirals, CIA officials, and think tank hawks. It is rare to have the opportunity to hear the views of a civil society progressive or an articulate critic of global militarism, American style.
In contrast, WikiLeaks is independent of corporations, media, and governments, and has since its inception been devoted to the publication of materials incriminating governments and their private sector allies. We need to affirm WikiLeaks and whistleblowing as part of the legitimate architecture of constitutional democracy in the digital age. By criminalizing anti-war or human rights whistleblowing the political system is ratifying the suicide of substantive democracy.
Admittedly, this generalized endorsement of such transparency assumes that the government or the private sector have no legitimate secrets. I think there should be protection of legitimate state secrets wherein the criminality of unauthorized disclosures would require the government to sustain a burden of truth beyond a reasonable doubt that the material released was not in the public interest. This is bound to be a controversial line to draw conceptually and in practice. In quite different circumstances the release of the full Mueller Report tests whether transparency will lose out to those anti-democratic forces trying to hide, or at least obscure by redaction, the extent of wrongdoing by the Trump administration.
In the background should be the realization that whistleblowers rarely, if ever, act without a deeply felt sense that information crucial for the public to know about is being wrongfully withheld. Even without legal repercussions there are often high costs incurred by whistleblowers in relation to career and reputation. You are forever feared as the opposite of ‘a team player,’ so important for the morale and standard operating procedures of almost all bureaucracies, but especially those of government. I know this the personal experience of friends. Dan Ellsberg and Tony Russo, the Pentagon Papers whistleblowers were forever non-legally tainted by their brave acts of true patriotism. They realized at the time that they were taking big risks of prison and would in any event pay a high price though informal dynamics of exclusion, and yet acted out of their profound feelings of loyalty to America’s professed values. And it is true that Ellsberg, in particular, has been ‘compensated’ by being lionized in civil society as an offset to being permanently invalidated as a high-level civil servant.
What is mainly forgotten in relation to these whistleblowing incidents is the truly incriminating content of the disclosures. In each of these prominent instances the material released there was exposed criminal conduct by the government of a kind that threatens millions of lives and confirms the most shocking suspicions about government conduct in war zones or through malicious encroachments on public liberty.
It seems apt to recall President Franklin Roosevelt’s 1944 message on German war crimes directed at the German people in the midst of World War II: “Hitler is committing war crimes in the name of the German people. I ask every German and every man everywhere under German domination to show the world by his action that in his heart he does not share these insane criminal desires. Let him hide the victims, help them to get over their borders, and do what they can to save them from the Nazi hangman. I ask him also to keep watch and to record the evidence that will one day be used to convict the guilty.” (emphasis added) Is this not precisely what Chelsea Manning and Julian Assange have been doing?
As the U.S. Chief Prosecutor at Nuremberg, Justice Robert H. Jackson, reminded the world in his opening statement at the trials, if prosecution, conviction, and punishment of the defendants is “to serve a useful purpose” it must in the future condemn similar lawlessness by others “including those who sit in here in judgment.” In effect, if the rule of law is to govern human behavior with respect to war crimes and crimes against humanity, the sort of ‘victors’ justice’ applied to the German and Japanese losers must in the future be replaced by ‘justice,’ that is, the application of law to all who violate it. Of course, this Nuremberg Promise has been repaeatedly broken in spirit and substance, and most defiantly by the Trump/Bolton attacks on the very existence of the International Criminal Court.
The UN Membership unanimously affirmed that the Nuremberg Judgment was a desirable development of international law in General Assembly Resolution 95(I). In addition, the International Law Commission, the most authoritative body entrusted with the codification and development of international law formulated
The Nuremberg Principles in 1946 to formalize the impact of the trials on international criminal law. Of particular relevance is final Principle VII: “Complicity in the commission of a crime against the peace, a war
crime, or a crime against humanity..is a crime under international law.” Fairly read, this proposition would suggest that the U.S. Government moves to prosecute Assange are themselves crimes, while the acts of Assange are commendable efforts to prevent international crimes from continuing.
Such reasoning should also be relevant to the British judicial response to the formal American request for extradition. Of course, extradition should be denied because ‘political crimes’ are by treaty arrangement not extraditable, and if there ever was a political crime it is this apparently failed attempt by Assange to hack the password of a government computer so as to hide the identity of the whistleblower, Chelsea Manning.
In the context of antiwar activism during the Vietnam War I made the argument that there existed a ‘Nuremberg Obligation’ that had moral, if not legal authority. In effect, the Nuremberg Obligation in light of the material discussed above means that every person has the rightand is subject to the dutyto contribute to the exposure of violations of international criminal law in war/peace and human rights contexts. Additionally, this moral right/duty could be reasonably construed as a legal obligation.
Julian Assange should be judged against this background. This applies not only to the underlying criminal charge, but to withdrawal of asylum status by the government of Ecuador that led to Assange’s unseemly arrest London and to the judicial treatment of the extradition request by the British judiciary.
Tags: Assange, Chelsea Manning, Ellsberg, international criminal law, Nuremberg Obligation, patriotism in the digital age, republicanism, whistleblowing