This article was originally published at Truthout.org
By Marjorie Cohn
In a stunning development earlier this week, The New York Times, the Guardian, Le Monde, DER SPIEGEL and El País signed a joint open letter calling on the U.S. government to dismiss the Espionage Act charges against Julian Assange for publishing classified military and diplomatic secrets.
“Publishing is not a crime,” the letter states. “The U.S. government should end its prosecution of Julian Assange for publishing secrets.”
This forceful statement in support of Assange comes in a moment when other powerful advocates globally have also stepped forward in defense of the WikiLeaks publisher. Both Brazilian President-elect Lula da Silva and Australian Prime Minister Anthony Albanese are calling for dismissal of the charges against Assange. “May Assange be released from his unjust prison,” Lula said.
Assange’s appeal of the order to extradite him to the United States is pending in the U.K. High Court. For the past three and a half years, Assange has languished in a London high-security prison while he fights extradition to answer charges under the Espionage Act. Assange faces 175 years in a maximum-security U.S. prison if convicted.
In 2010, the five media outlets that signed the open letter worked in collaboration with WikiLeaks to publish “Cable gate.” It consisted of 251,000 confidential U.S. State Department cables that “disclosed corruption, diplomatic scandals and spy affairs on an international scale.” These documents, according to The New York Times, told “the unvarnished story of how the government makes its biggest decisions, the decisions that cost the country most heavily in lives and money.”
No publisher has ever been prosecuted under the Espionage Act for disclosing government secrets. “This indictment sets a dangerous precedent, and threatens to undermine America’s First Amendment and the freedom of the press,” the letter says.
WikiLeaks Published Evidence of U.S. War Crimes
In 2010, Chelsea Manning, then a U.S. Army intelligence analyst, provided WikiLeaks with “Cable gate” and other documents containing evidence of U.S. war crimes. They included the Iraq War Logs: 400,000 field reports describing 15,000 unreported deaths of Iraqi civilians, as well as systematic rape, torture and murder after U.S. forces “handed over detainees to a notorious Iraqi torture squad.” They also contained the Afghan War Diary, which included 90,000 reports of more civilian casualties by coalition forces than the U.S. military had reported, and the Guantánamo Files — 779 secret reports with evidence that 150 innocent people had been held at Guantánamo Bay for years, and 800 men and boys had been tortured and abused, in violation of the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Manning also provided the notorious 2007 “Collateral Murder Video,” which depicted a U.S. Army Apache attack helicopter targeting and killing 11 unarmed civilians, including two Reuters journalists and a man who came to rescue the wounded. Two children were injured. The video contains evidence of three violations of the Geneva Conventions and the U.S. Army Field Manual.
The Obama administration indicted more whistleblowers under the Espionage Act than all prior administrations combined. But it made the decision not to indict Assange because of what is known as the “New York Times problem.” The letter says, “they would have had to indict journalists from major news outlets too. Their position placed a premium on press freedom, despite its uncomfortable consequences.”
In 2018, the Trump administration’s Department of Justice filed a secret indictment charging Assange with one count of violating the Computer Fraud and Abuse Act, which carries a five-year sentence. It alleged that Assange offered to help whistleblower Chelsea Manning access a secure computer network.
Trump’s Justice Department filed a superseding indictment with 17 charges under the Espionage Act, stemming from WikiLeaks’s 2010-2011 release of the Iraq War Logs, the Afghan War Diary and “Cable gate.”
In a second superseding indictment, the Trump administration (apparently mindful that if Assange was a publisher and journalist, the prosecution could run afoul of the First Amendment) endeavored to beef up the original computer charge by trying to portray Assange as a hacker instead of a journalist. It relied on statements that informant Siggi Thordarson made to the FBI. Thordarson later admitted to the Icelandic newspaper Stundin that he lied about Assange being a hacker in return for immunity from prosecution.
Rather than dismissing the Trump administration’s indictment and following the lead of the Obama administration, President Joe Biden’s Justice Department is vigorously pursuing the extradition and prosecution of Assange.
Assange Insisted on Redaction; WikiLeaks Was Not the First to Publish Unredacted Cables
The signatories to the letter “felt the need to publicly criticize [Assange’s] conduct in 2011 when unredacted copies of the cables were released.” But they used the passive voice, implying but not explicitly accusing Assange of releasing cables with names of informants who worked with the United States and could be endangered if their identities were revealed.
In fact, several witnesses testified at his extradition hearing in 2021 that Assange took great care to ensure that the names were redacted. Other outlets published the unredacted cables before WikiLeaks with no adverse consequences.
John Goetz, an investigative reporter who worked for DER SPIEGEL, testified that WikiLeaks underwent a “very rigorous redaction process” and Assange repeatedly told his media partners to secure communications and utilize encryption. Assange even tried to stop Der Freitag from publishing unredacted documents.
Indeed, Jakob Augstein, editor of Der Freitag, testified that Assange “feared for the safety of informants.”
John Sloboda, co-founder of Iraq Body Count, testified that Assange imposed a “very stringent redaction process” to protect named sources from potential harm. The “painstaking process,” Sloboda maintained, took “weeks.”
New Zealand investigative journalist Nicky Hager testified about WikiLeaks staff’s “careful and responsible process” to protect the identity of informants.
John Young, host of cryptome.org, also testified at the extradition hearing. He recently wrote in a Justice Department submission form, “Cryptome published the decrypted unredacted State Department Cables on September 1, 2011 prior to publication of the cables by WikiLeaks.” Young said that no U.S. law enforcement authority has told him this was illegal and added, “I respectfully request that the Department of Justice add me as a co-defendant in the prosecution of Mr. Assange under the Espionage Act. “
Digital experts testified that the publication of a password by Guardian journalists Luke Harding and David Leigh ultimately led to the unredacted publication.
Moreover, Brig. Gen. Robert Carr testified at Manning’s court martial that no one was harmed by the WikiLeaks releases.
“Cable Gate” Has Helped Journalists and Historians
The open letter cites the significance of Cable gate: “Even now in 2022, journalists and historians continue to publish new revelations, using the unique trove of documents.”
Sloboda noted in his testimony that, “10 years on, the Iraq War Logs ‘remain the only source of information regarding many thousands of violent civilian deaths in Iraq between 2004 and 2009.’”
But the U.S. government has pursued Assange with a vengeance.
In 2017, the CIA and U.S. government officials made “secret war plans” to kidnap and kill Assange while he was residing in the Ecuadorian embassy in London under a grant of asylum. Senior CIA and Trump administration officials asked for “sketches” or “options” to assassinate Assange. Trump himself “asked whether the CIA could assassinate Assange and provide him ‘options’ for how to do so,” according to an explosive report in Yahoo! News last year.
Attorneys and journalists who visited Assange in the Ecuadorian embassy sued the CIA and its former director, Mike Pompeo, in August for illegally spying on them during their visits. They alleged that Undercover Global, a security company, took their cellphones and laptops, downloaded the data and sent the images to the CIA.
“Holding governments accountable is part of the core mission of a free press in a democracy,” the media letter says. “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalised, our public discourse and our democracies are made significantly weaker.”
After the three-week hearing in 2021, U.K. District Judge Vanessa Baraitser denied extradition, finding that if Assange is extradited to the United States for trial, he is very likely to attempt suicide due to his mental state and the harsh conditions of confinement to which he would be subjected in U.S. prisons. Her ruling was reversed by the U.K. High Court, and the U.K. Supreme Court refused to review that ruling.
The High Court will soon decide whether to hear Assange’s appeal, which asserts that extradition is prohibited for a political offense. Attorney General Merrick Garland should drop the U.S. request for the extradition of Assange and dismiss the indictment. No less than the future of investigative and national security journalism is at stake.
Copyright © Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.