Prosecuting Julian Assange would threaten press freedom

The extradition hearing of Australian Julian Assange is under way in London. It will determine by June whether the WikiLeaks founder should be sent to the United States to face trial on one charge of conspiring to commit computer intrusion and 17 charges of violating the US Espionage Act, following the release of classified US documents a decade ago.

The former US army intelligence analyst Chelsea Manning was sentenced in the United States to 35 years imprisonment for her role (subsequently commuted to seven years by President Barack Obama, although she is currently in gaol for refusing to testify before a grand jury against Assange). If convicted, Assange faces up to 175 years in prison.

The decision to extradite will hinge on legal determinations, such as whether the request breaches a UK-US treaty by being “politically motivated” or whether Assange would be exposed to cruel and degrading treatment in America. It also raises the question of the extent of the freedom of the press (regardless of whether WikiLeaks is considered the press and Assange a journalist). Where is the line to be drawn?

The tension between the need for both press freedom and the protection of individuals was noted by the Australian journalist Peter Greste of the Sydney Morning Herald, who was himself incarcerated in Egypt for “damaging national security”.

“Wikileaks was clearly right to release the ‘collateral murder’ video from a US Apache helicopter gunship, showing the slaughter of at least a dozen unarmed civilians in Baghdad,” Greste wrote. “It was also right for them to publish files that exposed how US-led forces killed hundreds of civilians in Afghanistan. That’s what press freedom is all about: maintaining the capacity for the media to expose abuses of power by those we entrust to wield it on our behalf.”

He continued: “Press freedom comes with responsibilities. It does not include the right to reveal information that places the lives of innocent people at risk, or that unnecessarily exposes genuine national security secrets without a clear public interest. That is simply irresponsible and dangerous.”

In opening statements for the US, James Lewis, QC, argued that by releasing unredacted documents relating to US military actions in Iraq and Afghanistan, Assange had endangered the lives of human rights activists, dissidents, journalists and their families. “Reporting or journalism is not a licence for criminality,” Lewis told the court. “The defence seek to suggest that the risk to these individuals who, by having the individuals revealed as informants, is somehow overstated. I would remind the court that these were individuals who were passing on information on regimes such as Iran and organisations such as al-Qaeda.”

Representing Assange, Edward Fitzgerald, QC, said the release exposed the US killing of unarmed civilians, including Reuters journalists, and the torture of detainees in Iraq. “Such revelations,” Fitzgerald said, “obviously put him in the sights of the aggressive ‘America first’ ideologues of the Trump administration.”

Additionally, the defence has confirmed it will allege that President Donald Trump offered Assange a pardon if he said Russia was not involved in the Democratic Party email leak in the lead up to the 2016 presidential election.

Outside the court was a menagerie of supporters and observers, ranging from a group of parliamentarians from across Europe representing Bridges for Media Freedom to a dozen gilet jaune protesters who had travelled from Paris overnight. “It is not a crime to publish American war crimes,” said the fashion designer Vivienne Westwood. “It’s in the public interest, it is democracy, that he is allowed to do this. I feel really worried and frightened actually, really frightened.”

There is reason to be frightened. For the first time, the century-old Espionage Act is being used by the US to target media activities and could establish a precedent that criminalises future acts of national-security journalism. “The charges rely almost entirely on conduct that investigative journalists engage in every day,” Jameel Jaffer of Columbia University told the New York Times in May last year. “The indictment should be understood as a frontal attack on press freedom.”

The Obama administration decided against using the Espionage Act to prosecute Assange, recognising that it could lead to charges being brought against more reputable and established media organisations — such as the New York Times, the Washington Post and the Guardian — that published the WikiLeaks material. “The problem the department has always had in investigating Julian Assange,” said former US Justice Department spokesman Matthew Miller in 2013, “is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

“It is clear that under Trump,” Greste concluded, “Assange is highly unlikely to have his rights respected or get a fair trial, and those, too, are grounds to oppose his extradition. The manner in which US prosecutors are handling his case, and its implications for anybody who believes in democratic accountability, are too serious to let Assange be extradited without a fight.”

“If Assange would be extradited to the US,” said secretary general of Reporters Without Borders, Christophe Deloire, on Sunday, “it would be the sign that journalism is considered espionage and it would endanger all journalists who want to uncover the lies of governments whatever the country.”

Assange has been held on remand since September after completing his 50-week sentence for breaching bail and seeking refuge in Ecuador’s London embassy to avoid extradition to Sweden. He has been placed in solitary confinement for over 20 hours per day, raising concerns for his mental state should his incarceration during the hearing continue.

Assange’s father, John Shipton, has said his son’s extradition to the US would be akin to a “death sentence”.

The hearing will adjourn at the end of the week until May 18, when it will run for three more weeks.