Experts debunked the U.S. government’s case, argument by argument. Here’s a recap ahead of the judge’s verdict on January 4th.
The prosecution of WikiLeaks publisher Julian Assange would be a landmark test of the First Amendment right to publish if he were brought to trial in the United States, as press freedom groups, constitutional lawyers, and newsrooms across the board have sounded the alarm about the ways in which the U.S. indictment intends to silence investigative journalism around the world.
But Assange would first have to be extradited from the United Kingdom, where he has been imprisoned in HMP Belmarsh for over a year and a half. At Assange’s extradition hearing in London, comprising one week of oral arguments in February and four weeks of witness testimony in September, District Judge Vanessa Baraitser heard debate over the U.S.-U.K. Extradition Treaty’s ban on extraditing for ‘political offenses,’ the unprecedented nature and scope of the U.S. prosecution, and the threat sending Assange to a Supermax prison in the U.S. would pose to his health and even his life.
Judge Baraitser will issue her ruling on January 4th, and she is expected not only to approve or deny Assange’s extradition, but rather will lay out the ways in which she agrees or not with the government and defense’s many arguments. Here is what the government argued in court and what defense experts said on the stand.
Journalists & Source Protection
- U.S. government said: Julian Assange is not a journalist
- Experts said: Assange engaged in basic journalistic activity
That Julian Assange is a journalist should not be in dispute. Assange has earned dozens of journalism awards, from Amnesty International’s New Media Award in 2009 to the 2011 Walkey Award, the Australian equivalent of the Pulitzer Prize. WikiLeaks has been referred to in court as a journalistic outlet, and mainstream media organizations around the world now use the very same anonymous submission system that WikiLeaks pioneered. But there’s no need to wade into this semantic dispute in the first place — laws and amendments protect or criminalize types of actions, not types of people. A press pass doesn’t give you more or fewer freedoms: the First Amendment protects journalistic activity, not journalists, and what WikiLeaks has done in soliciting, redacting, contextualizing, and publishing the Iraq & Afghan War Logs, the State Department cables and the GTMO Detainee Assessment Briefs is pure journalistic activity.
Fellow journalists and press freedom experts alike explained this distinction. U. of Maryland Professor of Journalism Mark Feldstein called WikiLeaks’ actions “standard journalistic behavior.” Furthermore, Jameel Jaffer, director of the Knight First Amendment Institute at Columbia, testified:
“The indictment [of Julian Assange] focuses almost entirely on the kinds of activities that national security journalists engage in routinely and as a necessary part of their work-cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information. The indictment’s implicit but unmistakable claim is that activities integral to national security journalism are unprotected by the U.S. Constitution and even criminal.”
As Trevor Timm, founder of the Freedom of the Press Foundation, put it in court, “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter, he was engaging in journalistic activity.”
This journalistic activity is not limited to publishing the documents. The Assange indictment also attempts to make criminal every step in the reporting process, from journalist-source communications to possessing the files to finally making them public. In addition to the 17 charges under the Espionage Act, the 18th charge is under the Computer Fraud and Abuse Act, attempting to reframe normal reporter-source interactions as something nefarious and to paint Assange as a mastermind directing computer intrusions when he allegedly chatted online with whistleblower Chelsea Manning.
Computer forensic expert Patrick Eller testified that he found several important inaccuracies and technological misunderstandings in the government’s assessment of the Manning conversations and concluded that what the government alleges — an attempted password crack — wasn’t even technically possible and that if it were, it wouldn’t be for the purposes they allege. More fundamentally, he testified, the government couldn’t even prove that it was Assange himself that Manning was speaking to.
Even if the accusation held up, Trevor Timm explained, that this time of source communication is not only normal but essential for investigative journalism. “Material journalists often write about and print do not magically land on their desks,” he said. They talk to sources, they ask for clarification, and they ask for more information. “This is standard practice for journalists.”
Unredacted cables
- U.S. government said: Assange recklessly published names of informants
- Experts said: WikiLeaks redacted more than even the US government, Assange warned the State Department about unredacted release and was ignored, and WikiLeaks wasn’t even the first to publish unredacted
This argument has been completely debunked. Three of the charges against Assange are for “pure publication,” which is a dangerous attempt to set a precedent that criminalizes the publication of truthful information in the public interest. The government’s indictment ignores the painstaking redaction process that WikiLeaks engaged in starting in 2010. Veteran journalists who worked with WikiLeaks on the 2010 publications testified that Assange and WikiLeaks were ardent about redacting cables to protect innocents who might be named. John Goetz testified that he looked at a few specific files in the Iraq War Logs and compared them to the same documents that were later released by the US government itself, and he found that WikiLeaks’ redaction system — using a computer script to first redact every single name in the files and then working backward to inspect and unredact words that couldn’t be used to identify the individuals — actually redacted more than the U.S. government’s. Working on the State Department cables, Stefania Maurizi lauded WikiLeaks’ unprecedented security in protecting the files.
The government’s indictment ignores all of this and dishonestly tries to criminalize WikiLeaks’ 2011 publication of certain unredacted cables. As several experts testified, the indictment’s timeline is extremely misleading, obscuring how those disclosures came to pass in an attempt to deceive the judge and to paint Assange as reckless. The individuals responsible for initially publishing the unredacted cables were never charged. John Young, founder of the US-based leak site Cryptome, testified that he published the State Department cables first, and that the US government has never tried to prosecute him or asked him to take them down. When Assange learned that the unredacted files were available on the internet, he and other WikiLeaks officials immediately called the State Department’s emergency line to warn them. That Cryptome and John Young were never charged reveals how this is a blatant case of selective prosecution — political payback instead of an honest application of the law.
Assange is an Australian citizen who published WikiLeaks files while in Europe, so make no mistake: the U.S. government is claiming global jurisdiction and the right to dictate what is and isn’t published about it beyond its borders. Furthermore, it’s arguing that the First Amendment no longer protects the publication of truthful information in the public interest. A successful prosecution would spell the end of any legal protections journalists have left.
Politicized Prosecution
- U.S. government said: This is the culmination of a decade-long investigation
- Experts said: Obama explicitly declined to prosecute; Trump launched a war on the press
The question of whether the prosecution of Julian Assange is “politicized” is no theoretical debate; this is an important legal distinction: the US-UK Extradition Treaty explicitly bans extradition for “political offenses.” In this case, both the publication and the prosecution should be viewed as political. Assange’s defense team explained, “Espionage” is a textbook political accusation, the allegation of a crime done to a particular nation-state for political reasons. Experts in Assange’s hearing testified that Assange is an anti-war libertarian, and he published evidence of war crimes and corruption for the purpose of exposing and ending those unjust practices.
On the question of a politicized prosecution, the government has attempted to portray the Trump administration’s indictment as the natural conclusion of a years-long investigation into WikiLeaks. But as experts explained in court, President Obama’s Department of Justice looked closely at indicting WikiLeaks and explicitly decided not to indict, because they could find no meaningful difference between the actions of WikiLeaks and those of the New York Times. The Trump administration, by contrast, had no regard for these First Amendment concerns and decided to reopen the essentially closed investigation into Assange. Then-Attorney General Jeff Sessions said early in Trump’s tenure that arresting Assange was his personal “priority.” In April 2017, then-CIA Director Mike Pompeo delivered an extremely aggressive speech against WikiLeaks, declaring, “we can no longer allow Assange and his colleagues the latitude to use free speech values against us.”
At Assange’s extradition hearing, Carey Shenkman, an American human rights attorney and constitutional historian who is writing a book on historical analyses of the Espionage Act, testified, “I’ve never thought we would see something like [this indictment],” adding that most legal scholars agree that this use of the Espionage Act is “truly extraordinary.” The way the charges are framed and the timing of the indictment, he said, “really point to a highly politicized prosecution.”
Verdict
On January 4th, 2021, Judge Vanessa Baraitser will issue her ruling on whether to approve Julian Assange’s extradition. To accept the government’s arguments, she will have to disregard weeks of expert testimony debunking the prosecution’s legal theories, and she’ll have to accept its misleading timeline of events. These experts in journalism, the history of the Espionage Act, and the politicized application of the law gave her ample reason to shut this extradition process down.