Assessing the Punitive ‘Release’ of Julian Assange

TRANSCEND MEMBERS, 15 Jul 2024

Richard Falk | Global Justice in the 21st Century – TRANSCEND Media Service

9 Jul 2024 – This is a modified version of the questions/answers by Washington-based Al Jazeera journalist Mohamed Elmenshawy about the plea bargain release of Julian Assange.

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1- What do you make of the plea deal reached between the US government and Assange?

The release of Julian Assange is long overdue, although it would have been more widely welcomed at this time if it had not been achieved within the framework of a plea bargain. More appropriate, and far less ambivalent, would have been a presidential pardon that kept the door open for future investigative journalists with the courage to reveal and comment upon inconvenient truths.

As it was, Assange after being released from prison was obliged to stop in the small city of Saipan in an Northern   Marianas Island in the Western Pacific, which is actually US territory, and face espionage charges in a criminal court. To gain his freedom after 14 years on the run and in various types of confinement, Assange’s guilty plea bargain required him to plead guilty on one of a series charges against him. The US Government seemed content with Assange’s acceptance of the charge of conspiring unlawfully to obtain and disseminate classified materials.

Despite securing this guilty plea, the prosecution had agreed that it would not seek to have Assange made subject to any further punishment. His time in the UK maximum security prison at Belmarsh Prison for the past five years was apparently treated as sufficient jail time, allowing the government to claim that US espionage laws were being enforced in response to Assange’s unlawful behavior. Assange’s long confinement in the Ecuador Embassy in London for the nine years preceding confinement in Belmarsh during the long extradition legal process amounted also to a punishment for the dubious contention that Wikileaks rather than being dissident journalism was espionage, despite Assange’s diligent redaction of any material that might endanger the safety of persons named in the released classified documents. Assange was also imprisoned for 50 weeks in the UK after jumping bail to avoid being extradited to Sweden to face some alleged criminal  charges  of an ambiguous sexual assault.

While there exist humanitarian and principled political reasons to celebrate Assange’s freedom there are also grounds for concern and criticism. To begin with there were rather well-sourced reports that the CIA considered kidnapping or even assassinating Assange during his prolonged stay in Ecuador’s Embassy. These concerns were aggravated by insinuations that the US had helped engineer a change of government in Ecuador that resulted in the withdrawal of its grant of asylum to Assange in London. The most damaging materials that was disclosed by Wikileaks came to Assange by way of a US Army Intelligence Officer, Chelsea Manning (previously known as Bradley Manning), who transmitted 750,000 classified and diplomatic documents to Assange relating to various incidents in the Iraq and Afghanistan wars that confirmed and documented US reliance on criminal tactics that amounted to international war crimes. Manning was court-martialed for violating the Espionage Laws and was imprisoned from 2010-1017 for leaking classified materials to Assange. Her prison sentence was commuted by Obama in 2017, releasing Manning from serving out her sentence.

By treating such disclosures as espionage, as is the effect of Assange’s guilty plea, is to send all dissident journalists an intimidating signal that they could be subject to a criminal prosecution in the future. Mainstream journalists frequently address pro-government issues that are shaped by privileged access to classified government documents without facing such threats. The difference in treatment of dissident journalists whose views rarely are represented on influential establishment media platforms in the West arises from their political slant rather than from their classified character. In this instance the media performs, especially in relation to foreign policy and national security, operate as an instrument of state propaganda. In contrast, Wikileaks is primarily motivated by a radical anti-state, left populist orientation supportive of greater transparency with respect to government policy in the conduct of foreign policy.

This dissident identity leads some commentators on the political right to consider Assange to be an ‘anarchist hacker’ rather than a true journalist, and as such, deserving of punishment to the full extent of the law. They even object to the current arrangement governing his release as endangering future national security interests and the safety of those citizens who might be exposed by public disclosure, as well as those with whom US intelligence, diplomatic, and military personnel collaborate in foreign countries.

Other notable commentators argue that there exists an inevitable fuzzy line separating journalism from espionage, ‘a gray zone’ that exhibits overlapping tensions between guarding legitimate state secrets and protecting free expression. Noah Feldman of Harvard Law School has described this as a tension between ‘national security hawks’ and ‘First Amendment absolutists,’ implying that those sensible moderates who allegedly determine policy must make contextual judgments based on the character of information disclosed, the sincerity and prudence of the actor charged with release, and the effects on US credibility and security of the disclosures.

Such reasonableness, in my judgment, undermines the importance of safeguarding those that take risks to inform the citizenry about the wrongdoings of government, which contributes to the democratic quality of state/society relations. There are limits to permissible disclosure, but they should be administered with a due regard for restoring democratic vitality in an era where most of what governments hide is to keep these inconvenient truths from being known by the national citizenry and to avoid accountability procedures by what social forces ensure that government policy is respectful of applicable law. In this sense, the whistleblowing rationale challenges government claims that state secrets are integral to national security. Statist apologists purport to be concerned about sensitive information being accessed by foreign enemy governments in ways that hamper the discretion of the state to adopt pragmatically justified policies and practices.

The balancing of relevant opposing interpretations would be more persuasive if it took account of the specific identity of the state whose secrets were being revealed and the purposes of the disclosure. In this instance, the United States was acting extraterritorially in ways that harmed the people and public interests of a variety of foreign states. This is quite different from the effort of vulnerable countries, such as Iran, to view breaches of its national security plans and capabilities as crimes that deserved punishment. Such distinctions lend support to views that regard violations of constraints on disclosure as being in a grey zone that depends on interpretation and analysis of specific cases.

2- And what do you make of its timing?

It is impossible to separate the timing of this plea bargain from the presidential elections in the US. Releasing Assange relieves Biden of the burden of answering questions about a seemingly vindictive pursuit of a public spirited individual who as Australian citizen acting outside was arguably not even subject to US espionage laws, and has been forced to live a fugitive existence for the past 14 years. It is helpful to appreciate that Assange was a non-citizen acting outside the United States whose behavior and alleged criminal acts that would normally be treated as beyond the proper reach of US espionage laws, especially as the classified documents were voluntarily transmitted to him rather than stolen.

A final point powerfully made by Chris Hedges is that Assange owes his freedom, belated and grudging as it is, to the sustained support of people demonstrating on his behalf throughout the world. Without this display of people power exercised on behalf of the global public interest Hedges argues that there is every reason to suppose that if US prosecutors had earlier succeeded with their extradition efforts, Assange would be prosecuted and sent to jail for the rest of his life (he could potentially have been sentenced to 175 years in prison if found guilty by a court of all charges brought against him), or at best made to hide shamefully from American law enforcement efforts virtually forever. As important as it is to acknowledge the role of people in the streets demonstrating to demand Assange’s  freedom is a recognition of the degree to which the demonstrators were affirming the acts of Assange as well as the individual. Assange was disclosing to the world what citizens of a genuine democratic world order were entitled to know and act upon.

The Assange case, following the example of Daniel Ellsberg in relation to the publication of the Pentagon Papers, shows us above all, how important it is to have brave individuals dedicated to transparent governance that is respectful of international law. It also reveals the strong support ordinary people lend to those truth-tellers and whistleblowers like Assange and Chelsea Manning.  A viable democracy, more than ever in this digital age of robotics and AI, depends on governmental truthfulness and maximum transparency, this depends on protecting the role of dissident journalism and engaged citizenries. A frightening dimension of danger in these days are  growing credible fears of stumbling into World War III. This is becoming a major public concern in the US and elsewhere as war mongers in Washington seem to be pushing tension toward military confrontations in a whole series of flashpoints around the world. The UN Secretary General, Antonio Guterres, has repeatedly warned of such dangers, suggesting the world is but one calculation away from a war fought with nuclear weapons.

Especially, in relation to geopolitical actors, formally freed from a legal duty to act within the framework of the UN Charter, we the people need to lend populist forms of support to the Assanges and Ellsbergs among us.

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Prof. Richard Falk is a member of the TRANSCEND Network, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Power Shift (2016); Revisiting the Vietnam War (2017); On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (2019); and On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019). He is the author or coauthor of other books, including Religion and Humane Global Governance (2001), Explorations at the Edge of Time (1993), Revolutionaries and Functionaries (1988), The Promise of World Order (1988), Indefensible Weapons (with Robert Jay Lifton, 1983), A Study of Future Worlds (1975), and This Endangered Planet (1972). His memoir, Public Intellectual: The Life of a Citizen Pilgrim was published in March 2021 and received an award from Global Policy Institute at Loyala Marymount University as ‘the best book of 2021.’ He has been nominated frequently for the Nobel Peace Prize since 2009.

Go to Original – richardfalk.org


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One Response to “Assessing the Punitive ‘Release’ of Julian Assange”

  1. Andrew Hoffman says:

    Indeed the timing of the plea bargain may be inseparable the coming election but not for the reason the author suggests. Unfortunately the fate of Assange is not a motivating factor on the mind of more that a very few voters. Those who do care they will be voting against Trump in any case. Quite possibly Biden did this because he knew if Trunp was the next President Assange would spend the rest of his life in prison.

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