Assange – A Dangerous Precedent

JUSTICE, 29 Apr 2019

Courtenay Barnett – TRANSCEND Media Service

The arrest of Julian Assange is of special interest to me for three distinct reasons:

  1. Along with my legal colleague, Lloyd Rodney ( activist like his famous cousin, Dr. Walter Rodney),  I was arrested under British jurisdiction for publicly petitioning against incompetence and corruption within the judicial system. ( See: Footnote i)  ).
  2. When my daughter was approaching her senior year in high school, the school had a practice of inviting parents to address the seniors to explain what the parent’s  job, profession, vocation or career entailed and to give a talk on any subject of choice. My choice was the history of the First Amendment under the US Constitution and its origins dating back to the Glorious Revolution and the Bill of Rights 1688.
  3. As defence Attorney and a human rights activist I am acutely aware of the importance of legal protection for the right to speak via the media, both print and electronic, to bring public attention to matters of administrative, governmental and other official wrongdoings.

So, I have followed Mr. Assange’s WikiLeaks endeavours and his challenges, pending trial and tribulations for years.

Before I turn to the meat of the matter in this article, namely, what I term the Phase III stage of Assange’s ordeal – his arrest in London, I would have found it ironic, if not amusing, to note the somersaults of President Trump in his reactions to the WikiLeaks publications. But he is, the one and only, President Donald Trump (if I have not come to understand him so well – I would otherwise be taking his every utterance – totally seriously).

First, when candidate Trump, he simply adored WikiLeaks. It is noteworthy that the Department of Justice under the Obama administration thought it unwise to prosecute Assange, for reason of likely First Amendment infringements (more anon on that legal aspect).

Next, under the Trump administration there is an indictment and in London, the arrest of Julian Assange, on Thursday, the 11th day of April, 2019:  Trump: “I know nothing about WikiLeaks”. Now, for clarity’s sake, it helps to outline the phases that Assange might, or probably most likely shall pass through in the main:

Phase I – Accusations of rape against him by two Swedish women (maybe to be revived).

Phase II – His departure from Sweden to London and his long political asylum from 2012 in the Ecuadorian Embassy ended as of the 11th day of April, 2019

Phase III – His arrest and arraignment within the British justice system.

Phase IV – Extradition proceedings to a final decision under British justice.

Phase V   – An anticipated pre-determined extradition to the United States of America; and

Phase VI – A further anticipated overloading of the existing US indictment and a long prison sentence.

N.B.: See conclusion for specific explanation of this Phase VI legal aspect.

It is Phase III that our attention is here directed to.

Phase III

The arrest and the arraignment can be viewed under two discrete headings:-

Arrest: Already considered in relation to the breach of the UK Bail Act (see:

http://blog.effectivelearning.net/julian-assange-revisited/ ).

Arraignment: This is where in relation to the US indictment the charge is put to Mr. Assange in the dock, for his to plea “Guilty” or “Not Guilty”. Then, the proceedings shall grind on, there having been a “Not Guilty” plea.

The indictment and the Judge, Michael Snow, hearing the plea, are worthy of special comment.

District Judge Michael Snow: Assange had said nothing during his brief hearing of 15 minute and then the “Not guilty” plea and then the impartial Judge says – “His assertion that he has not had a fair hearing is laughable. And his behaviour is that of a narcissist who cannot get beyond his own selfish interests.”

N.B. Need I say more as regards impartiality?

The indictment: It can be read in its entirety here (https://www.justice.gov/usao-edva/press-release/file/1153481/download).

The US Government has laid one count in the indictment amounting to a charge for computer hacking to obtain classified information.

The indictment states that Chelsea Manning ( assumed then Bradley Manning) worked along with Assange ( ‘conspired’ to convey the true criminal allegation of the US Government against Assange) to hack into US government computers.

So, contrary to US law, Assange is facing one count of conspiracy to commit computer intrusion.

The co-conspirator, Manning, was sentenced in the US and imprisoned, but had his/her prison sentence commuted by President Obama. Presently, Manning is back in prison, for reason of refusing to testify about and/or against WikiLeaks and Julian Assange.

Do I believe that if extradited the US Government will add more charges? Answer provided in the Conclusion below.

Discussion

Above is stated the facts anticipated to unfold within the existing legal framework and/or frameworks of justice systems, at Phase III,  if Assange is to be extradited to face US justice.

Now, my concerns which I wish to share.

Compromise and/or intimidation of freedom of expression/speech and of the press: This specifies my greatest fear and concern, not just for WikiLeaks and Julian Assange, but for newspapers, writers, journalists, editors, activists, authors, online and hard copy publishers all the way across the board and right down to street corner activists across the world. The Assange case has the quite serious and real potential of sending a resoundingly bad message across the world – depending on what the UK Court’s decision ultimately is. “Bad message” admittedly from my perspective and mind-set; “good message” if state wrongdoing is deemed more important to be protected, such as war crimes. See this video over truth telling to citizens:

Paragraph 9 of the indictment is stating that it was Manning who hacked into the computer. The charge to be proved is related to these considerations:-

  1. What evidence is there of direct assistance by Assange ( i.e. beyond mere encouragement and/or stated intent – the actus rea of Assange)?
  2. Is it that a ‘long-reach’ US statute, where Assange did nothing directly in the US (i.e. within and directly under its jurisdiction) – but, as alleged, by an extension from Manning  – is that how a cohate crime is to be established?
  3. So Manning through Assange, accessed the Linux operating system, which cracked the password and Manning accessed and Assange published. Is that the publication/journalistic crime?

Question: How were the ‘Pentagon Papers’ obtained (legally or illegally) to be published as a public service to expose the governmental wrongdoings under the Nixon administration?

Question: Is what is termed ‘national-defense’ in the US more or less important than ensuring that the Government itself is not in breach of the law? For, if there was no breach of the law governing us all under the ‘Rule of Law’, then there would be no embarrassment and/or need to be overly concerned – correct? To be fair, maybe spies names are discovered by such exposure, but that is not the actual gravamen of the Assange case as alleged – is it? It is fundamentally that US war-crimes and torture of Guantanamo Bay detainees, were fully exposed for the world to see. That seems to be Assange’s greatest ‘crime’ for which he, with the full force of the US government against him – shall pay for – correct?

Paragraph 16 of the indictment reads:

PURPOSE AND OBJECT OF THE CONSPIRACY

“16. The primary purpose of the conspiracy was to facilitate Manning’s acquisition and transmission of classified information related to the national defense of the United States so that WikiLeaks could publicly disseminate the information on its website.”

Cf. For the sake of historical record, do recall, “The Pentagon Papers, officially titled United States-Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense, were first released on the front page of the New York Times in 1971. These papers were released by Daniel Ellsberg, an American activist and former U.S. military analyst.”

I am old enough to recall the foregoing events. I can safely say that the publication of the Pentagon Papers had a monumental impact on the views of the American people based upon the words of their Government, which had lied to them. Further, having especial regard for the fact that, from President Truman all the way to Nixon, administration after administration had lied to the American people about the depth of the US involvement in the Vietnam War; so national shock waves rebounded.

The New York Times had started publication of the papers and then the Nixon administration obtained an injunction. The Court however ruled ultimately in the case of New York Times. Co. v. United States that the Times was free to publish.

By comparison – is Assange really doing much more than that  ( by reference to the US case of the Pentagon Papers – simply – exposing and stating the truth in a  similar way –  albeit – electronically and via  more effectively updated form)?

Legal question

At paragraph 25 of the indictment, it is confirmed that Assange said to Manning about the cracking of the code, “no luck so far”.

I don’t get it; did Assange assist Manning in a conclusive and choate manner to hack into the US Government’s computer (based on how the indictment is framed)?

Or, is this a charge for an ‘inchoate crime’?

So, I ask the questions above because since the single charge relates to Assange trying to assist and ending up unsuccessful in his effort – is this analogous  to ‘attempted murder’ ( e.g. he, Assange,  ‘attempted computer intrusion’)?

Conclusion

The legal turf upon which the Assange case will be fought in England, is the area separating the solicitation of matters of journalistic interest – versus – commission of a crime by way of obtaining ‘official secrets’ ( as termed under British law)/ ‘national security’ classified information under US law.

In the US, if Assange is extradited, the legal contest shall be framed as First Amendment rights – versus -privacy.

In response to the obtaining of secret government information, the courts in England and the US have generally lent on the side of ‘public interest’ and the public’s right to know over strict privacy.

In this case the US Government is trying to delineate between maintaining and ostensibly upholding the journalistic right to investigate and know and make public – versus – not being seen to be curtailing and/or infringing upon that First Amendment right; hence the indictment’s embrace of ‘conspiracy’ to again prise and delineate to say that Assange overstepped the legal line by encouraging Manning. A thin line indeed – yet to be determined under the law of Britain, which if there is a finding for extradition will unavoidably impinge upon the traditional areas of press freedom, inclusive of, but not limited to, the areas of sourcing, identity protection and  secrecy of investigative communications.

So far as the evidence goes, there is an FBI’s Officer’s supporting affidavit:-  https://www.documentcloud.org/documents/5911143-Julian-Assange-Affidavit-December-2017.html

From that evidence it appears that the US Government does not actually know whether or not Assange was successful in cracking the code, where the Officer states:

“Investigators have not recovered a response by Manning to Assange’s question, and there is no other evidence as to what Assange did, if anything, with respect to the password,”

FBI agent Megan Brown said.

So, without more concrete evidence, the case at present appears, in technical legal terms, to be one of reliance upon Assange’s offer to assist Manning as the constituent part of  the ‘conspiracy’  to get to illegality under the US Computer Fraud and Abuse Act. So the wheel turns back to the Manning trial in the US for reliance on the same evidence that initially convicted Manning.

On the question of additional charges being laid by the US, this can be noted.  Additional charges may be added before Assange’s extradition is sought. Once extradition is effected, under treaty and by reference to the ‘rule of specialty’ then the U.S. cannot change the charge at a later date. So, if the US is to abide by the rules, then upon extradition, Assange could only be tried for the charge for which he is extradited.

The Labour shadow Foreign Secretary, M.P. Diane Abbott, had this to say on the matter, “Julian Assange is not being pursued to protect U.S. national security; he’s being pursued because he has exposed wrongdoing by U.S. administrations and their military forces.”

The Assange case is already of global importance, not least because, there already has been a favourable legal ruling by the:

 ‘INTER­AMERICAN COURT OF HUMAN RIGHTS REQUEST  FOR AN ADVISORY OPINION SUBMITTED BY THE REPUBLIC OF ECUADOR’

Concerning “the institution of asylum in its different forms and to the legality of its recognition as a human right of every individual in accordance with the principle of equality and non­discrimination.”

Which, at the very least makes the legal opinion persuasive and informative to other international courts such as the European Court of Human Rights, of which the domestic court in England would have to be cognizant.

Put in reverse, if a US journalist  – or, even, US based journalist ( Khashoggi immediately comes  to mind) – were to report on the wrongdoings and illegalities within a foreign country, is it to be argued before a US court, upon an application from the foreign country that for so doing, the US journalist must be extradited to the offending foreign country? Stated at its simplest, this is the kind of ‘Alice in legal wonderland’ world that the Trump Administration’s extradition application for Assange is taking the US and the world into.

The British Court may choose to act as a vassal state subservient to the interests of US foreign policy. Whatever is the perceived choice of the British Judges ( based on the example of District Judge, Michael Snow, to date) there nevertheless remains  a real chance for credibility, rationality, integrity and most of all honesty, decency and independence to prevail and shine in a case such as this. There is, to my legal mind, but one core question to be answered:-

“Is it a crime to expose crimes already committed?”

That is the question.

The British Court shall in due time inform of precisely what is the extraditable offence and how so in point of existing law and under established journalistic practice.

******************

Footnote  i) :

It should be noted, by reference to the issues at hand, that the UK has dropped eleven places from 29/180 in 2013 to 40/180 in 2018 in ‘Reporters Without Borders’ World Press Freedom Index’; it is now ranked  in between Trinidad and Tobago and Burkina Faso.

The racist roots of UK colonial legal provisions were directed against myself and Attorney Lloyd Rodney to arrest us for having lawfully published a public Petition about the justice system’s injustices; so we were both charged for ‘scandalising’ the court;  an archaic and obsolete legal provision of which it was said in 1899:-

“Committals for contempt of Court by scandalising the Court itself have become obsolete in this country. Courts are contented to leave to public opinion attacks or comments derogatory or scandalous to them.”

Case: McLeod v. St. Aubyn [1899] Appeal Cases page 549 at page 561. Per. Lord Morris.

Question: So, why was I arrested; and- why was Rodney imprisoned?

Answer: And here comes the express administrative racism in answer, that was directed against the contemptnor in 1899 as it was a century later used against Rodney and myself:

“But, it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.” Per. Lord Morris.

Question: So Rodney is imprisoned for speaking truthfully; Assange finds himself speaking truthfully – and so – by parity of reasoning, in his ( Assange’s community of investigative journalists) – it becomes “absolutely necessary to preserve in such a community the dignity of and respect for the Court.” ( i.e. substitute there for the word “Court” the word “Country” – and place before the word “community” – “global community” – and the same sentiments and words thus expressed – echo through the ages  – and do they not become – colonialism and Empire on the march? :-

“… absolutely necessary to preserve in such a global community the dignity of and respect for the Country.”

Conclusion: If the UK Courts continue to act as a supplicant to US  foreign policy – the pride and vanity of both nations ( shamelessly  of the UK Court(s) if that were to be the result) shall presage really bad times for both countries and the world.

(The above referenced events in a UN affiliated report were published in an article entitled “Gadflys in the Turks and Caicos Islands – Lawyers Harassed,” by Laurie Wiseberg, published in the Human Rights Tribune, Vol 5, Nos. 1-2, April 1998.  Unfortunately the Human Rights Tribune has been discontinued for lack of funding, not leaving behind a web address; however, the author will furnish as documentation a PDF photocopy of the article (IMG_20190417_0001.pdf) via email upon request at his email address at  barnett46@hotmail.com. )

Footnote ii):

In consequence of the events reported internationally about the imprisonment of Attorney Lloyd Rodney, I sued on his behalf in two distinct actions, one for the shackling to his hospital bed, at a time after Amnesty International had directed that the British Government release him unconditionally; then I sued for the unlawful arrest. The first case was won and to avoid the further embarrassment, Her Majesty’s Government did ensure that Rodney received in full over US$200,000 compensation.

_______________________________________

Courtenay Barnett is a graduate of London University. His areas of study were economics, political science and international law. He has been a practising lawyer for over thirty years, has been arrested for defending his views, has been subjected to death threats, and has argued public interest and human rights cases. He lives and works in the Caribbean. barnett46@hotmail.com


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This article originally appeared on Transcend Media Service (TMS) on 29 Apr 2019.

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