Julian Assange’s Prosecution for Publishing Leaked Government Documents Is an Extremely Dangerous Precedent

Kevin Gosztola

The US government is trying to extradite and prosecute Julian Assange for publishing leaked US government documents. That should be extremely concerning to anyone who cares about holding governments and the powerful accountable.

Julian Assange faces seventeen counts of allegedly violating the Espionage Act. This law has never in its history been directed against a journalist or a publisher. (Espen Moe / Wikimedia Commons)

Interview by
Branko Marcetic

A trademark paradox of the Trump era is that many of the same quarters who have been the loudest in warning about the president’s authoritarianism and hostility to press freedoms have also been silent or even cheered on one of his most dangerous actions: his attempt to extradite and prosecute WikiLeaks founder Julian Assange for publishing leaked US government documents.

In a time when journalists soliciting leaks from high-level sources have been cast as the vanguard of the resistance to Trump, his efforts to criminalize that very practice seem to have been given a free pass.

Since 2016, Assange has become a bipartisan enemy of the state, hated by conservatives for exposing US government war crimes and general malfeasance, and hated by liberal politicians for exposing various misdeeds of the 2016 Hillary Clinton campaign, which they believe cost her the election.

This has given the Trump administration a prime opportunity to attempt to criminalize the publishing of US government secrets, a long-standing goal of the national security establishment. Jacobin recently talked about all this and more with Shadowproof’s Kevin Gosztola, who has been covering Assange’s extradition hearing this past month. This interview has been edited for length and clarity.


BM

What are the actual charges that are being leveled at Assange? What is he potentially facing if he does get extradited?

KG

Julian Assange faces seventeen counts of allegedly violating the Espionage Act. This law has never in its history been directed against a journalist or a publisher. There have been cases threatened against press, there have been cases threatened against individual journalists, but the charges have never been filed.

Three of the charges specifically target the disclosure of names of confidential human sources and people who may have been working as informants or providing information, at risk to themselves, to US Embassies. These three charges are ones the prosecutors have beat on heavily and emphasized during the extradition trial, so they can seem like it isn’t as much of an attack on journalism, but that they’re trying to go after what they would probably describe as “irresponsible journalism” or “reckless journalism.”

There is this false dichotomy that they’re creating for this trial. There’s the responsible journalist, the one that talks to the US State Department, talks to the Pentagon before publishing, finds out information about who could be at risk — is this program sensitive, does it need to be protected, what is its use to US foreign policy, what will happen if it’s compromised?

And then they have the reckless journalist that they’re painting a portrait of for Julian Assange, someone who doesn’t care about the lives of the people who assist the US government, somebody who they think wants to jeopardize, undermine what the US military is trying to do in war zones.

BM

Right, using these less broad charges as a Trojan horse to push through what would be a far more sweeping clampdown on publishing leaks.

KG

Yeah, and I would say that they’re deliberately misrepresenting their indictment in his extradition trial. [Pentagon Papers whistleblower] Daniel Ellsberg actually agrees with me: they are allowed to do it without the judge stopping the prosecutor, to say “Well no, you can’t argue that, that’s not what your indictment says.”

It does target journalism. It targets the mere receiving of information. Just possessing information is a crime that Julian Assange is committing because, as it says in the charge, he was a person that was unauthorized to receive the information. He did not have a security clearance.

This gets into something that we see in the prosecution and in the Espionage Act against whistleblowers. It surfaces, in this case, in a different way because those people who are whistleblowers usually have authorization to receive. They sign a contract, they are people with security clearances, and then they’re accused of releasing it to people unauthorized to receive it, those are the journalists that they work with.

So, take the high-profile case of Edward Snowden. Edward Snowden is the whistleblower, Laura Poitras, Glenn Greenwald, and Ewen MacAskill are people who are unauthorized to receive that information. They don’t have a security clearance, but they’ve never been threatened with prosecution and they haven’t been prosecuted.

Now in this case, prosecutors are saying Julian Assange is a journalist that Chelsea Manning gave information to. He was unauthorized to receive that information, and so he has committed a crime.

BM

Speaking of Assange, how has he been treated through all of this? He had the ordeal in the Ecuadorian Embassy, and we’ve heard some reports that this has really affected his mental and physical health pretty badly. But even beyond that, is he being given the same kind of rights and privileges any other defendant in his position would get in these extradition hearings? Or is he being treated worse?

KG

In my view, his due process rights have been systematically undermined in almost every step of the extradition process. The most glaring problem I have with what has unfolded is that he remains in this glass box during the extradition trial and during any hearing in this extradition case.

They actually challenged this during a one-week hearing in February 2020, which was in a different courthouse, and in that courthouse he could not hear, he had trouble following, he did not understand what was happening in the court proceedings. And so they made a request to the judge to allow him to sit with his attorneys, and it was rejected. Even though the prosecution was willing to allow him to sit with his defense, the judge refused to let him out.

BM

What did they say was the reason they wouldn’t let him?

KG

They say not only is it for the security of the court, against the threat of the defendant, but it could protect the defendant from anyone who might want to attack them. Those kinds of claims, just like protective custody in the US prison system, have a way of being carried out in an oppressive manner. The only way he can participate is to interrupt the trial, which puts him at risk of the judge deciding he’s going to get tossed, and not be allowed to attend and follow the witness testimony from the extradition trial.

The fact that he’s in jail during this extradition trial and not out on some home confinement or even just out on bail, like a nonviolent person routinely would be, is a part of the violation of his due process rights. She won’t even entertain the idea of putting an electronic tag on him, believing he’s some kind of super hacker who can probably Houdini his way out of the devices and then get on an airplane and end up in some other country without anybody noticing.

He was accused of jumping bail and violating those conditions of bail when he went and sought political asylum in the Ecuadorian Embassy. To me, that makes a mockery of the whole institution of political asylum, going after someone who is in fear for their life, as he was.

And as it’s now been shown, he was justified because his extradition has been carried out by the Trump administration. That did not factor in as a reason to abandon holding him accountable for jumping bail, so he did fifty weeks of jail time — almost the maximum time you can do for that kind of sentence. And they still didn’t release him.

Then they tried to get him released during the COVID-19 pandemic, because he was at risk and has extreme chronic respiratory infections, and they believed that he was someone who should be on the short list of people to let out during this pandemic. And that didn’t help things with the judge. So I think the callousness that has gone into this trial and case is pretty imperative [to know].

BM

What is the defense’s case, in trying to prevent Assange from being extradited to the United States?

KG

The defense’s case can be broken down by the witnesses that have been called during the extradition trial. We have witnesses that are trying to destigmatize and demystify the news-gathering process that WikiLeaks engaged in, and to show that it is indistinguishable from the standard practices of any American journalist, and really any Western media organization.

A good example of someone who helped make a judge understand this would be Mark Feldstein, author of Poisoning the Press. It’s a book about the Nixon administration and how they went to war against Jack Anderson and other journalists. He took the stand and said that soliciting leaks, asking sources to provide information, that’s pretty standard. If you’re not doing that, you’re probably not that good of a journalist.

We had Trevor Timm from the Freedom of the Press Foundation who, in my view, gave some of the most important testimony about this, showing how all of these media organizations now have secure drops, or have leak submission systems. This includes mainstream organizations like the Washington Post, USA Today, the New York Times, that are actually asking people to submit leaks to their organization. It’s the WikiLeaks model.

Another prong is that WikiLeaks exposed criminality on the part of the US government, and that, in effect, the Trump administration is retaliating against Julian Assange because of this. That’s not an abstract thing to allege in this trial: the Trump administration has sanctioned officials on the International Criminal Court for trying to investigate US military forces for torture and war crimes in Afghanistan.

Khalid El-Masri, who submitted testimony in support of Julian Assange at great risk to himself, was the target of CIA torture and rendition, and he pointed out that a WikiLeaks cable revealed the reason why the German government didn’t prosecute the thirteen-member CIA team behind it: because the US government pressured Germany into not pursuing that accountability. He used that in the European Court of Human Rights and won his case, and was granted damages.

This also happened with the High Court in Pakistan, where material from WikiLeaks factored into an ultimate decision that it was a war crime for drones to be assassinating and killing people in Pakistan. We saw in the next year or so that drone strikes slowed down because of that court decision.

Another part is the ways you discourage the judge from green-lighting something that will mean you are violating the person’s human rights. So you have, do not extradite Julian Assange because if he’s brought to the United States, he’ll be put in a prison and subject to cruel and unusual treatment, he’ll be put in pre-trial confinement, and be under special administrative measures. Special administrative measures are a way of restricting communication with anyone on the outside world: to eliminate your contact with your family, limit all contact with your attorneys, make it hard for you to put together your defense. And ultimately, these are effective in coercing the defendants to plead guilty, rather than go to trial. We know that the vast majority of cases end up being pleaded out instead of going to trial.

The final thing is they have these doctors that have treated and assessed and looked at Assange, and they say he’s deteriorating, has depression, and one doctor even diagnosed him with Asperger’s syndrome. There are two cases where the extradition of individuals accused of hacking to the United States were blocked because they were diagnosed with Asperger’s syndrome: Lauri Love and Gary McKinnon.

BM

It fascinates me that the nature of the US criminal justice system is itself an issue in this hearing. The criminal justice system that so many Americans have to face on a daily basis, is considered so unjust and unfair and terrible, that it’s actually a reason being given by lawyers to stop Assange’s extradition.

KG

Yeah, in the extradition trial we’ve heard evidence related to where Julian Assange would likely be detained before trial. He would be sent to the Alexandria Detention Center. It’s the same facility where Chelsea Manning was confined for about a year, because she resisted a grand jury subpoena that came from the same grand jury set up to investigate and, in my view, destroy WikiLeaks as a media organization.

The assistant US attorney, Gordon Kromberg in the Eastern District of Virginia, has made these assurances to the court that there are suicide protocols, and all these different amenities that the prison has to protect people. And yet, we have the example of Chelsea Manning not being stopped from trying to kill herself.

BM

Another dynamic that’s played out in the trial, and we’ve seen this before, is with the prosecutor trying to contrast Ellsberg, whose leak is considered heroic and who has been canonized under Trump in movies like The Post as this act of bravery, with Assange, who is the “irresponsible leaker.” What happened in the hearing when the prosecutor attempted to create this contrast between the two?

KG

First, I just want to make a point here, which is that he’s not the leaker. If we act like he’s the leaker, then we’re allowing them to discredit him as a journalist. But he didn’t actually have access to the information, he didn’t leak the information.

Daniel Ellsberg wanted to communicate to the judge why it was deeply troubling to bring this case against Julian Assange by relaying his experience of being prosecuted for the Espionage Act, and how specifically during his trial, he was not able to share why he disclosed the information. He himself says that if there hadn’t been government misconduct directed at him, then he may not have been acquitted, because he had no way to defend himself against the charges by describing why he did what he did.

The prosecutor came at him, trying to throw at him all of these myths about Chelsea Manning and Edward Snowden, and Julian Assange that were seemingly about them being bad, and Ellsberg being a good leaker. Ultimately, he had to set everything straight and say, “Well, in fact you can’t make a distinction between me and Julian Assange because you say that he was reckless because he released the names of informants and sources that were helping the military, and didn’t properly redact information.”

According to Dan, he didn’t redact anything in the Pentagon Papers when he provided them to the media, because he didn’t want anybody to look at the redaction and make it possible for government officials to suggest he’s hiding the good reasons for why we should be in a war in Vietnam. He even left in a clandestine CIA officer’s name.

BM

There’s been a lot of criticism of the mainstream media for failing to cover the hearing. What, in your opinion, does this say about the state of journalism in the United States, and about the glorification of press freedoms under Trump?

KG

There’s been some mainstream media attention to the extradition trial, but for the most part they’ve only been interested in the unruly defendant in the court room — times when Julian Assange has had outbursts, as they have described it. They don’t really show empathy for why he would be frustrated with the way the judge is handling the case, or why he would be furious at the prosecutor.

And then we’ve seen, in the third week of the extradition trial, that they’re interested in a storyline about him being a freak — the fact that he’s had psychotic breakdowns and he’s losing his mind. That’s something they’re attracted to, which is likely to make some good headlines, to splash all of these private details about his mental health.

I think it’s to their detriment that they don’t recognize what is at stake or don’t do a better job of emphasizing what’s going to happen if this case is successful. How will it be used as a tool against journalists? And not just against journalists here in the United States, but journalists around the world. Because I need to be very clear about what is so dramatic about the case that is being brought against Julian Assange.

Global press freedom organizations, including Reporters Without Borders, have been following this closely, because they understand that if this succeeds, anyone around the world who obtains US government documents that are sensitive, that involve national security, or involve US military affairs could be prosecuted. Especially if they’re in a country that would extradite those journalists to the United States. Or, it could be a case like this, where you have someone who’s Australian, but who’s in the UK.

You could see, potentially, the Saudi government or Israeli government or the Turkish government, or the Chinese or the Russian governments, or the Brazilian government defend their own documents to protect their own information, the same way the United States chooses to.

And we know that when we look to the bleak future that lies ahead for this world, with climate change, with all of the resource wars that are going to be evident, the massive refugee crisis, that there is going to be a lot of pressure on governments to follow the model the United States is creating, of clamping down on the flow of information, ensuring that anything involving national security or military operations is kept from the public, so that we can’t question what they’re doing.

Other governments are going to see that if the US government can do it, we would like to follow that and do it too. And I think that’s why people should pay more attention.

That said, let me invert that question and ask, what do I think about alternative and independent media who are diligently covering this case, and using the limited resources they have to call attention to what is important about this extradition trial? And I say that this is an example of why we need independent media. It’s an example of what people who exist outside of the corporate press can accomplish.

BM

We’re speaking on September 24. What are some of the most recent developments in the trial?

KG

The third week here has been primarily the mental health evidence that we have been hearing about Julian Assange. I’ve mentioned that he was diagnosed with Asperger’s syndrome. He was diagnosed with severe depression. One of the things that played out in the courtroom in the past week is this idea that Julian Assange is exaggerating his depression symptoms in order to help him in his US extradition request.

Prosecutors have come up with a conspiracy theory, which is that Julian Assange in prison is reading a British medical journal, and he’s getting ideas from it on how a psychiatrist might treat him. And then he is consulting with his attorneys on how to effectively present these symptoms or to talk about what he’s going through when he has his consultation with doctors.

BM

Is there any indication of how this thing might go? What are Assange’s chances to stay out of extradition, and if he doesn’t get extradited, what’s next?

KG

What’s likely to happen next is the judge will issue a ruling, and then depending on the outcome, the US government is going to appeal. Or Julian Assange’s team will appeal. So, it’s going to go through at least one or two higher level courts before it is over and done with. That will involve challenging the way the case was handled and managed by the judge. It won’t involve new evidence. It’ll be arguments over abuse of process. After that, if he runs out of avenues for appeal, then if he has lost, he’ll be brought to the United States.

I can feel the possibility that the political shift in the White House may have some impact on what happens next in Julian Assange’s case. However, I don’t think that it’s going to be that much different with Joe Biden, because the way the Obama administration justified the prosecutions that they brought, of which there were a record number, was to say that so many had been inherited from George W. Bush’s administration. They acted like they weren’t even theirs, but they had an obligation to complete work that was started by Bush’s justice department.

If Assange ultimately loses, it’s going to be two, three years later. Then we might see that choice come where Biden has to decide whether to abandon the case against Assange or allow him to be brought to the United States to be put on trial. In the meantime, we have a forty-nine-year-old man who is very vulnerable, has deteriorating health, mentally and physically, and there is the question of, will he survive the next three years in the condition that he is in?