On 4 January 2021, judge Vanessa Baraitser ruled that WikiLeaks founder Julian Assange shouldn’t be extradited to the US. Her decision was based on the likelihood that Assange would take his own life once incarcerated in the merciless US supermax prison system. However, Baraitser refused bail for Assange, arguing he could abscond while awaiting an appeal by the prosecution.
But there’s been scant attention to the implications of the bulk of Baraitser’s ruling, which equates to a ringing endorsement of the US prosecution case.
Attack on journalists
Regarding Baraitser’s ruling, UN special rapporteur on torture Nils Melzer commented:
I am gravely concerned that the [Baraitser] judgement confirms the entire, very dangerous rationale underlying the US indictment, which effectively amounts to criminalizing national security journalism.
Should the US provide [via an appeal] assurances that Mr. Assange will be treated humanely, his extradition could potentially be confirmed on appeal without any meaningful review of the very serious legal concerns raised by this case.
It could also be argued that Assange’s prosecution was selective. In December 2020, Pulitzer prize winning journalist and film-maker Laura Poitras pointed out that she was: “guilty of violating the Espionage Act, Title 18, U.S. Code Sections 793 and 798. If charged and convicted, I could spend the rest of my life in prison”. But she hasn’t been charged.
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I confess that I — alongside journalists at The Guardian, The Washington Post and other news organizations — reported on and published highly classified documents from the National Security Agency provided by the whistle-blower Edward Snowden, revealing the government’s global mass surveillance programs. This reporting was widely recognized as a public service.
In 2019, journalists worldwide issued a stark warning on the prosecution of Assange:
If the US government can prosecute Mr Assange for publishing classified documents, it may clear the way for governments to prosecute journalists anywhere, an alarming precedent for freedom of the press worldwide.
In April 2019, in response to Assange’s arrest, Pulitzer Prize-winning journalist Chris Hedges argued that should Assange be extradited:
it will create a legal precedent that will terminate the ability of the press, which Trump repeatedly has called “the enemy of the people,” to hold power accountable. The crimes of war and finance, the persecution of dissidents, minorities and immigrants, the pillaging by corporations of the nation and the ecosystem and the ruthless impoverishment of working men and women to swell the bank accounts of the rich and consolidate the global oligarchs’ total grip on power will not only expand, but will no longer be part of public debate. First Assange. Then us.
Indeed, the judge’s ruling leaves open the possibility that US authorities could submit a new extradition request against Assange in a country that has an extradition treaty with the US. Or a country that could be pressured into handing over the WikiLeaks founder.
That would rule out Australia as a safe haven for Assange, unless certain conditions are met. Indeed, Greg Barns, barrister and adviser to the Australian Assange Campaign, told The Canary that:
Unless there is a pardon, then the US could seek to extradite Assange from Australia. Therefore there would need to be an undertaking by both countries that no extradition request would be filed or entertained in Australia.
Meanwhile, the Sydney Morning Herald reports that, according to government sources, “there was no intention to raise the matter [of a pardon for Assange] with either the Trump or the incoming Biden administration”.
It’s also reported that Mexico has offered Assange asylum – and hopefully a diplomatic passport, or a letter of safe passage – to be applied once the appeal hurdles have been cleared and Assange is free to exit the UK. But as Common Dreams points out: “Mexico is also the deadliest country in the western hemisphere for journalists, according to the Committee to Protect Journalists”. And anyway, the US could use Assange as a bargaining chip in its relations with the Mexican government over, say, migrant issues.
Even if a suitable country is found where Assange can seek asylum, the US could resort to intercepting a flight carrying him to his destination. This is not as fantastic as it sounds. In 2013, a plane from Moscow carrying Bolivian president Evo Morales was forced to divert by US allies to Austria. This was because it was suspected the plane was carrying NSA whistleblower Edward Snowden. Earlier that day, Morales indicated he was prepared to offer Snowden asylum. However, it turned out that Snowden was not on board the plane, but was still in Moscow airport, seeking refuge.
While the US could appeal the judge’s decision to refuse extradition, the defence may also seek to appeal other aspects of the ruling on matters of law. For example, Baraitser ruled that “the agreement between Mr. Assange and Ms. [Chelsea] Manning for her to obtain and disclose the information would amount to a conspiracy”.
Journalism historian Mark Feldstein cogently argued in his witness statement to the court that:
Good reporters don’t sit around waiting for someone to leak information, they actively solicit it; they push, prod, cajole, counsel, entice, induce, inveigle, wheedle, sweet-talk, badger, and nag sources for information—the more secret, significant, and sensitive, the better.
already had legitimate access to all the databases from which she downloaded the data… Logging into another user account would not have provided her with more access than she already possessed.
Eller added that Manning had access to the Secret Internet Protocol Network (SIPRNet). This is a secure network from where she could access diplomatic cables and information about Guantanamo detainees. When asked how many people would have access to SIPRNet, Eller answered “in the millions”.
The fight goes on
Following the judge’s ruling, a US Department of Justice spokesperson pointedly stated:
While we are extremely disappointed in the court’s ultimate decision, we are gratified that the United States prevailed on every point of law raised. In particular, the court rejected all of Mr Assange’s arguments regarding political motivation, political offence, fair trial, and freedom of speech. We will continue to seek Mr Assange’s extradition to the United States.
Australian independent MP Andrew Wilkie observed that: “regrettably it [Baraitser’s ruling] fails to address central issues like freedom of speech, media freedom and the US claim to extraterritoriality”.
Arguably, after Baraitser’s ruling, there’s nothing to stop any country issuing arrest warrants against journalists, anywhere in the world, for merely exposing injustices and wrong-doings of those in power. Thus the fight goes on.
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