The threat to freedom

Democratic presidential candidates Bernie Sanders and Elizabeth Warren have condemned the US incitement of WikiLeaks founder and publisher Julian Assange as a threat to freedom of the press guaranteed by the First Amendment to the sacrosanct US Constitution. The Justice Department has classified Assange as a publisher rather than a journalist and filed 17 charges against him under the 1917 Espionage Act adopted after the US entry into World War I. This is the first time this controversial law has been used against the press. Assange could face 175 years in prison if extradited to the US, tried and convicted.  

Sanders tweeted, “Let me be clear: it is a disturbing attack on the First Amendment for the Trump administration to decide who is not a reporter for the purposes of a criminal prosecution. Donald Trump must obey the Constitution, which protects publication of news about the government.”

Warren was more circumspect, calling Assange a “bad actor who has harmed US national security — and he should be held accountable. But Trump should not be using this case as a pretext to wage war on the First Amendment and go after the free press who hold the powerful accountable everyday.”

Assange is alleged to have violated the Espionage Act by publishing classified documents in 2010 and encouraging “sources (Chelsea Manning) to circumvent legal safeguards on information,” as classified, or secret.

The most graphic and disturbing material WikiLeaks exposed was the 2007 video of a US cheering helicopter crew shooting down innocent, unarmed Iraqi civilians, including two Reuters journalists, in Baghdad. Assange quite rightly said the video showed, “The behaviour of the (airborne gunners) is like a computer game.”

The publication of the video came after the Pentagon admitted that US special forces tried to cover up the killings in a raid of three Afghan women by removing the bullets from their corpses.

The latest charges expanded an earlier indictment, the original pretext used to demand Assange’s extradition for encouraging and aiding Manning’s efforts to break into Pentagon computers in order to access classified material.

At least two federal prosecutors employed by Justice Department, which is headed by Trump loyalists, opposed the determination that Assange breached the Espionage Act. The Obama administration discussed but did not take such a decision because damaging WikiLeaks material had been published by the New York Times, The Guardian, Le Monde, El Pais and Der Spiegel and picked up by other media. Prosecution of Assange could lead to indictments of influential western newspapers.

Using the Espionage Act to target publishers sets a new and particularly dangerous precedent at a time Trump is waging war on quality media in the US with the aim of curbing non-stop criticism of his erratic behaviour, making policy in tweets, and bullying. Trump repeatedly refers to the New York Times as the “enemy of the people.”

Writing in the New York Times Charlie Savage argued that the Assange case would “open the door to criminalising activities that are crucial to American investigative journalists who write about national security matters.” Discouraging damaging disclosures would suit the Pentagon, Homeland Security, and the Central Intelligence Agency which over-classify information which should be in the public domain, notably material on embarrassing cover-ups.  

As he is being investigated by numerous prosecutors and agencies Trump is particularly sensitive to leaks of cover-ups — as House Speaker Nancy Pelosi found last week when she brought up the subject. Naturally, the Justice Department has not charged Assange with leaking Russian-hacked e-mails of Trump’s rival Hillary Clinton during the 2016 presidential campaign. This activity may have helped get him elected.

Assange is currently serving 50 months in a British prison for skipping bail after Stockholm asked for his extradition on charges of sexual abuse laid by two Swedish women. Fearing once he answered charges in Sweden, he would be extradited to the US he took refuge in the Ecuadorian embassy in London where he remained a prisoner for seven years. He was arrested by British police after Ecuador, under US pressure, withdrew his right of asylum.

Although one Swedish woman dropped her case against Assange, the other has not. Sweden has reopened investigations into this case, asked for a European arrest warrant and pressed for extradition. A British judge has given the US until June 12th to make its case against Assange.

Home Secretary Sajid Javid — an ambitious hardcore Conservative who running for the post of prime minister soon to be vacated by Theresa May — will decide which request to accept if either.  

Assange’s lawyers are certain to argue that since the US seeks to charge him with publishing material received from a whistleblower, the offense is political in nature. While Britain allows extradition if the charge is political Sweden does not, but since the statute of limitations on the Swedish case expires in August 2020, transferring him to the US would invalidate this case. Both Britain and Sweden are parties to the European Convention on Human Rights which bars the death penalty and torture, making it unlawful for Assange to be extradited to the US if either is likely. The death penalty could be a possibility.

When Washington moved the goal posts by upgrading its extradition request to charges of espionage, the death penalty became an option. The US extradition application was initially on a charge of helping whistleblower Chelsea Manning access forbidden material, which could earn a sentence of five years in jail. The difference is stunning and shows that the Trump Department of Justice is keen to make a drama of the Assange trial if he is sent to Virginia. This, of course, would enable Trump to divert attention from his crimes and misdemeanors and his claim he is battling evil doers in the “enemy” press.