{"id":151759,"date":"2020-01-20T12:00:16","date_gmt":"2020-01-20T12:00:16","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=151759"},"modified":"2020-02-07T11:12:24","modified_gmt":"2020-02-07T11:12:24","slug":"the-prosecution-of-julian-assange-the-destruction-of-legality-and-the-rise-of-the-national-security-state","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2020\/01\/the-prosecution-of-julian-assange-the-destruction-of-legality-and-the-rise-of-the-national-security-state\/","title":{"rendered":"The Prosecution of Julian Assange, the Destruction of Legality and the Rise of the National Security State"},"content":{"rendered":"

15 Jan 2020 – <\/em>The extradition proceedings brought by the United States against Julian Assange are to commence in February 2020. The prosecution of Assange marks a new stage in the onslaught on core democratic rights and legality by the US, British and, indeed, global ruling class.<\/p>\n

Over the last two decades the ruling class has attacked the constitutional and legal foundations of bourgeois democracy. The rights of due process and free speech have been at the centre of this assault. There are new and dangerous elements in the prosecution of Assange.<\/p>\n

The US government historically has made efforts to undermine free speech and the ability of the press to report on the affairs of government and on due process. However, the political and legal attack on Assange represents a qualitative intensification of the destruction of core rights, and on legality itself as the mode of bourgeois rule.<\/p>\n

A veritable counter-revolution has been pursued by successive United States administrations in an effort to construct an authoritarian national security state.<\/p>\n

The US government now seeks to establish as \u201claw\u201d that journalistic activity, which discloses or publishes classified defence and other information, is criminal and amounts to espionage: that journalists will be imprisoned as spies.<\/p>\n

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Julian Assange<\/p><\/div>\n

The British government in its treatment of Assange has also run roughshod over Assange\u2019s innumerable fundamental legal rights\u2014including due process, customary legal practice, habeas corpus and the recognition of international law\u2014in the course of acting as America\u2019s prosecutorial handmaiden. This article seeks to address some of the broader political and legal significance of the defence of Julian Assange, and why the case raises immense historical issues for the future of mankind.<\/p>\n

The case of John Peter Zenger<\/strong><\/p>\n

It is almost 300 years since the famous trial of John Peter Zenger, a New York publisher who was charged with libel, an offence at the time of publishing information opposed to the government. The year was 1734 and America was a British colony. The Zenger case had momentous revolutionary implications at a time of the rising ascendency of a new progressive class, the American bourgeoisie.<\/p>\n

John Peter Zenger was a German immigrant and publisher of a journal titled the New York Weekly Journal<\/em>. The publication made harsh criticisms of the Colonial government and the Governor, William S. Cosby. Zenger accused the government of, amongst other things, rigging elections, and Governor Cosby of committing various crimes.<\/p>\n

Zenger had only published the material, the sources of the information were anonymous and Zenger refused to reveal their identities. He was thrown into prison for eight months by the Colonial authorities and badly treated, including being denied pen, ink or paper with which to communicate with the outside world and prepare his defence. The Governor arranged for the public burning of the New York Weekly Journal<\/em>.<\/p>\n

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A depiction of Andrew Hamilton defending John Peter Zenger in court.<\/p><\/div>\n

Zenger was charged with libel, the legal meaning of which, at the time, involved no question of truth or falsity, merely the publication of statements critical of the government. Zenger admitted to publication of the material but advanced a defence, for the first time in the history of the Colony, of a right of free speech. His lawyer, Andrew Hamilton of Philadelphia, addressed the jury on the momentous issue at stake in the trial. Given the actions of the American government today against Julian Assange, it is worth quoting Hamilton\u2019s brilliant and powerful address at length:<\/p>\n

It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbours upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow….<\/em><\/p>\n

Power may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived…<\/em><\/p>\n

You see that I labor under the weight of many years, and am bowed down with great infirmities of body. Yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my services could be of any use in assisting to quench the flame of prosecutions upon informations, set on foot by the government to deprive a people of the right of remonstrating and complaining, too, of the arbitrary attempts of men in power….<\/em><\/p>\n

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honour you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbours, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.<\/em><\/p><\/blockquote>\n

At the end of Hamilton\u2019s address, the jury was instructed to convict Zenger, but after deliberating for a very short period returned with a unanimous verdict of Not Guilty. Emerging from the Zenger case there subsequently developed a legal doctrine, ultimately finding concrete expression in the First Amendment to the US Constitution, that truthful information could never be libellous (or seditious) and that speech could not be curtailed by any government action.<\/p>\n

Gouverneur Morris, a major figure at the Constitutional Convention of 1787 described the Zenger case as \u201cthe germ of American freedom, the morning star of that liberty which subsequently revolutionized America.<\/em>\u201d<\/p>\n

Perhaps more than any other event, the Zenger trial began the process towards the American Revolution.<\/p>\n

Natural Law<\/strong><\/p>\n

Zenger\u2019s defence rested on conceptions of Natural Law which were considered the basis of rights. These conceptions, which were gaining ground in America, were the product of the English revolutions and the ideas of John Locke and the emerging Enlightenment, which went back to the classical philosophical debates of antiquity on the question of the meaning of law, and might versus right, as discussed for example in Plato\u2019s work, The Republic<\/em>.<\/p>\n

In the late 16th century the Dutch Jurist and humanist Grotius first advanced the modern conception of Natural Law. Grotius asserted that true law was not an accidental human creation, not an emanation of political society, the State or the Church, but a genuine and necessary characteristic of Man, reflecting his essential social nature. The concept of Natural Law faced two major obstacles\u2014the arbitrary power of Kingly rule, and the Church and its theological and hierarchical conceptions.<\/p>\n

In the course of the Enlightenment, conceptions of democratic rights based on natural law were advanced by great original thinkers, such as Locke, Montesquieu and Voltaire. In his revolutionary work The Spirit of Laws<\/em> published in 1748, Montesquieu wrote:<\/p>\n

Laws in their broadest sense, are the necessary relations which are derived from the nature of things: Once free from the yoke of religion, we should still be subject to the rule of Justice\u2026 Law, like mathematics has its objective structure, which no arbitrary whim can alter, before there were any enacted laws, just relations were possible. To say that there is nothing just or unjust, excepting that which positive laws command or forbid is like saying that before one has drawn a circle all of its radii were not equal.<\/em><\/p><\/blockquote>\n

The idea of an objective necessity in law expressing the social nature of Man was profoundly influenced by the scientific revolution that preceded these intellectual conquests. These conceptions of natural law and democratic rights were a momentous advance in human consciousness\u2014fundamental and vital to the ongoing progress and civilisation of Mankind. People everywhere revelled in the transformation that these ideas represented. Voltaire at the time likened the advance in consciousness to a child beginning to walk. These conceptions found their expression in the great democratic Declarations, which accompanied the American and French revolutions and formed the ideological basis for the Constitutional form of government they created. Several passages from Locke\u2019s The Second Treatise on Government<\/em> were reproduced verbatim in the Declaration of Independence, including the references to \u201cinalienable rights\u201d and \u201ca long train of abuses.\u201d<\/p>\n

Drawing on the Natural Law conceptions of the Enlightenment, the American revolutionaries set about creating a government and Constitution based on reason. The principal idea was that rights were not granted by any political power, but emerged from the nature of Man himself. As John Dickinson declared in 1766:<\/p>\n

Our rights and liberties are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establishes the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power, without taking our lives. In short, they are founded on the immutable maxims of reason and justice (quoted in Gordon S Wood; <\/em>The Creation of the American Republic 1776\u2013 1787. Chapel Hill, 1969 p. 293).<\/em><\/p><\/blockquote>\n

The nature of American democracy, created out of the revolution and embodied in its constitution, reflected both a unique and intense political outlook. The idea of the \u201cSovereignty of the People\u201d and the inalienability of their rights was radical through and through. As Gordon Wood wrote in his seminal work The Creation of the American Republic<\/em>:<\/p>\n

The trite theory of popular sovereignty gained a verity in American hands that European radicals with all their talk of all power in the people had scarcely considered imaginable except at those rare times of revolution. \u201cCivil liberty\u201d became for Americans \u201cnot \u2018a government of laws,\u2019 made agreeable to charters, bills of rights or compacts, but a power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure, to alter or annihilate both the mode and essence of any former government, and adopt a new one in its stead. (op. cit., p. 362).<\/em><\/p><\/blockquote>\n

Madison and Free Speech<\/strong><\/p>\n

James Madison, one of the American founding fathers, was the primary architect of the Bill of Rights and chief proponent of the need in a true democracy for the right of free speech to be absolute. Under the doctrine of Sovereignty of the People, Madison argued, \u201cfor the people to rule wisely, they must be free to think and speak without fear of reprisal.\u201d Initially opposed to the enumeration of rights separate to the structure of the Constitution, on the basis that an enumeration would imply a limitation, Madison however acknowledged the popular will expressed in the ratifying conventions, which had approved remedies to the Constitution and shaped them into the Bill of Rights.<\/p>\n

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James Madison<\/p><\/div>\n

On the right of free speech, and its absolute centrality to a free and democratic society, Madison was unequivocal and adamant. Public disclosure had to be utterly free and unfettered. Madison had a decided distrust of popular government; for that reason he insisted that political disclosure needed to be robust and vigorous so that the government could be freely criticised and its abuses exposed. \u201cPublic opinion\u201d he wrote in 1791 \u201csets bounds to every government, and is the real sovereign in every free one.\u201d<\/p>\n

According to democratic theory, it is the people, and only the people, who rule. And for the people to rule wisely they have to be able to communicate with one another\u2014freely without fear of governmental suppression. Freedom of speech and of the press were, therefore, essential preconditions for democratic government. Madison\u2019s commitment to free speech was absolute. His presidency (1809\u20131818) has not generally been viewed favourably, but it is significant that even in times of great crises (such as the war of 1812) Madison did not abridge rights, and insisted on the right of free speech even in time of war.<\/p>\n

Recognition of the critical status of free speech in a democracy was expressed in the right of free speech being the first of the enumerated rights in the Amendments to the Constitution.<\/p>\n

Free Speech in War<\/strong><\/p>\n

As a right protected under a bourgeois democratic constitution (as opposed to a socialist constitution), the ruling class has sought from time to time to abridge the right when it has felt imperilled, and the socialist and communist movements have usually been the primary targets of such suppression when they have opposed the imperialist war aims of the US. In 1917 and 1918, the US government passed the Espionage Act and the Sedition Act respectively, which were consciously directed against socialist opposition to the war.<\/p>\n

In the case of Schenk v United States, the Supreme Court, including Oliver Wendell Holmes and Louis Brandeis, upheld the conviction of Charles Schenk, a socialist activist for distributing anti-draft pamphlets. The Court held that the Espionage Act did not violate the First Amendment because the anti-draft activities of Schenk presented a \u201cclear and present danger\u201d to the military operations and national security of the US, including the draft. Clearly, the Supreme Court sought to support the imperialist war aims of the US against socialist opposition. The Supreme Court also unanimously upheld convictions in the famous cases of Debs v United States (1919) and Frohwerk v United States (1919). Both Debs and Frohwerk were prominent socialist opponents of the war, and Debs a four-time Presidential candidate for the Socialist Party.<\/p>\n

The Sedition Act of 1918 was enacted at the behest of Woodrow Wilson, and outlawed criticism of the Government\u2019s war aims, the military and \u201cthe promotion of principles contrary to the Act.\u201d More than two thousand cases were filed by the Government under the Espionage Act 1917 and the Sedition Act of 1918, and there were over one thousand convictions. The Sedition Act was repealed in 1920, however the Espionage Act remains largely in force and is relied upon by the US government in its indictment of Julian Assange. This is no accident, but a product of the same militarist drives of US imperialism that prompted the legislation a hundred years ago.<\/p>\n

America\u2019s Post-Soviet War Drive for World Hegemony<\/strong><\/p>\n

The persecution of Julian Assange for publishing the war crimes of the United States in Iraq must be examined in the historical context of the crisis of US imperialism, the deepening class conflict within the United States, the elites\u2019 fear of revolution, and the consequent assault upon democratic rights and constitutionalism over the last two decades.<\/p>\n

Following the collapse of the Soviet Union, the United States turned quickly to an aggressive military\u00a0foreign policy. At the same time, capitalist triumphalism could not conceal the deep underlying problems emerging in the US economy, arising from the hollowing out of industry, the spectacular rise in financial parasitism and corporate debt, and its accelerating loss of ground to major economic rivals. The Soviet Union had collapsed but the United States was in systemic irreversible decline. The first major post-Soviet symptomatic shock occurred in 1998, with the collapse of the $126 billion Long Term Capital Management hedge fund. (The head of LTCM was Myron Scholes, who the year before had been awarded the Nobel Prize in Economic Sciences for a method to determine the value of derivatives). Ten years later, with the collapse of Lehman Bros, the death agony of American capitalism was verified beyond any reasonable doubt.<\/p>\n

Commencing in the early 1990s, the US ruling class, military and national security establishment embarked on a course of seeking to defend US world hegemony through the use of military force. It pursued a strategy of preventing the emergence of any rival to challenge US hegemony. America would henceforth exercise unchallenged domination over key regions and resources against its major rivals in Europe and Asia, through the global projection of overwhelming military power.<\/p>\n

At the NATO summit in Rome in November 1991, the US presented a \u201cNew Strategic Concept\u201d for NATO, which emphasised the \u201cglobal context\u201d and the need for NATO to take a \u201cmore expansive and less defensive strategic military role.\u201d The US and Britain both proclaimed the right to conduct \u201chumanitarian interventions,\u201d involving the use of military force to resolve disputes within other nations and to halt \u201chuman rights violations.\u201d<\/p>\n

The quest of US imperialism to establish unrivalled supremacy over the globe, which accelerated through the 1990s, was expanded, particularly to the energy-rich regions of the Middle East and the Caspian basin.<\/p>\n

The 1992 Defence Department document entitled \u201cThe Defence Planning Guidance\u201d summarised the new imperialist doctrine thus:<\/p>\n

Our first objective is to prevent the re-emergence of a new rival. This is a dominant consideration underlying the new regional defence strategy and requires that we endeavour to prevent any hostile power from dominating a region whose resources would, under consolidated control, be sufficient to generate global power. These regions include Western Europe, East Asia, the territory of the former Soviet Union, and Southwest Asia.<\/em><\/p><\/blockquote>\n

The doctrine of preventive war was adopted as official policy of the US. This doctrine had been gaining ground since the early 1990s among intellectuals who supported a more aggressive US foreign policy. In 1992, for example, the liberal Michael Walzer circulated a document signed by sixty intellectuals formulating the tenets of a new conception of \u201cjust war.\u201d In his book Just and Unjust Wars\u00a0<\/em>(New York, 1992), Walzer argued that, when the US was confronted with \u201cunusual and terrible danger\u201d and a \u201cradical threat to human values,\u201d no restriction of an ethical or legal nature could apply, and any means of preventive destruction was morally legitimate.<\/p>\n

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The National Security Strategy of the United States 2002<\/p><\/div>\n

In the Quadrennial Defence Review Report<\/em>, September 30, 2001, and the National Security Strategy of the United States<\/em>, September 17, 2002, the US government set out in detail its new preventive war doctrine. The doctrine proclaimed the right of the US to unilaterally denounce other sovereign states, to force inspections in order to secure \u201cpreventive disarmament,\u201d and to use military force if and when it considered it necessary or desirable.<\/p>\n

The National Security Strategy<\/em> of 2002 also proclaimed the right of the US to act \u201cpre-emptively\u201d in circumstances of a perceived threat. The doctrines of preventive war, pre-emptive self-defence, humanitarian war and just war are all illegal in international law. The resort to force, to war, is prohibited following Nuremberg and its codification in international law charters and conventions. The adoption of these doctrines by the US represented, in historical terms, an immense regression in the ideological condition of Western civilisation.<\/p>\n

In 2003, the US planned and launched its aggressive war against Iraq. The alleged threats of \u201cweapons of mass destruction\u201d were proven to be fraudulent and, in any event, could not have formed a lawful foundation for the launching of war. According to the precedents established at Nuremberg, those civilian and military leaders who planned and carried out the aggressive war against Iraq should have been arraigned before a properly constituted judicial tribunal, afforded full and proper due process, and tried for crimes against peace, crimes against humanity, and crimes against the laws of war.<\/p>\n

The illegal invasion of Iraq in 2003 constituted an immense escalation of America\u2019s post-Soviet strategy. The criminality of America\u2019s actions, and its brutality, expressed in such heinous crimes as the destruction and killings in Fallujah, were reminiscent of the aggression, criminality and violence of Hitler\u2019s attack on Poland in 1939. Most of the information that was published by Assange through WikiLeaks, and is the subject of the indictment, concerned the illegal and criminal activities of the United States in the Iraq and Afghanistan wars, and the treatment of detainees of Guantanamo Bay. Millions of people around the world watched the \u201cCollateral Murder\u201d in Iraq video in horror when it was released in 2010.<\/p>\n

The Attack on Constitutionalism and Legality<\/strong><\/p>\n

Since 2000, militarism abroad in furtherance of America\u2019s drive for global hegemony has gone hand in hand with attacks on constitutionalism and democratic rights at home. The opening assault on constitutionalism was the stolen election in 2000, when Republicans, Democrats and the Supreme Court alike defrauded American citizens of their right to vote. Albert Gore may have understood the seriousness of the implications, but did not fight to defend the peoples\u2019 rights. In the following two decades, there has been a conscious drive by the bourgeoisie in the United States to disassemble the established constitutional order, implement a repressive legal regime and establish authoritarian rule.<\/p>\n

The George W. Bush administration seized on 9\/11 to use the pretext of the \u201cWar on Terror\u201d to vastly expand the powers of the State, advance Executive rule and eviscerate constitutionalism.<\/p>\n

Under cover of the \u201cWar on Terror,\u201d the Bush administration sought to place itself above the law in an unprecedented manner. The Guantanamo Bay legal black hole, designed to deny habeas corpus, was perhaps the most extraordinary anti-constitutional measure taken in centuries. The attack on constitutionalism was fully supported by the Democratic Party. Numerous steps were taken to advance authoritarian rule under cover of America\u2019s war drive in the Middle East, including:<\/p>\n