(London, U.K.) In what was the second day of hearings at the British High Court for Julian Assange, determining whether he would be permitted to appeal a previous decision that would see him extradited to the United States, lawyers on behalf of the U.S. government argued that Assange is no journalist and there was no public interest in the documents he published.
Clair Dobbin KC — in summarising the case presented by the U.S. government in their Second Superseding Indictment — told the court: “WikiLeaks is a website that solicits and publishes documents that have been stolen, obtained by illegal computer hacking, disclosed in violation of the law or otherwise obtained illegally.”
She then immediately turned to the U.S. allegation that Assange entered into a criminal conspiracy with Chelsea Manning — source of all the documents Assange is charged with publishing — by agreeing to attempt to crack a password hash. Dobbin said: “The appellant is alleged to have assisted a member of the U.S. Army by committing an unlawful computer intrusion in order to further the scheme of stealing classified documents from the U.S. and to publish them via WikiLeaks.” WikiLeaks went on to publish that information knowing that it was obtained illegally, she added.
Dobbin continued to state that these documents “disclosed to the world the unredacted names of human sources who had provided information to the United States, many of whom lived in war zones or repressive regimes.” These people would go on to be at risk of “grave and imminent harm,” as a result of the disclosures, Dobbin said.
There was also harm to the work of U.S. intelligence services, the barrister further stated.
All of this, Dobbins argued, distinguished Assange from any other journalist, and WikiLeaks from any other journalistic organisation. Particularly, she argued, as the website’s “Most Wanted List” encouraged insiders to “steal” information.
The submission ignored evidence presented at the lower court that neither the U.S. Constitution or the Espionage Act with which Assange is charged make any distinction between who is a journalist and who isn’t (see Trevor Timm; Carey Shenkman). It ignored evidence that Assange in fact took great lengths to redact the documents he’d go on to release (see John Goetz; John Sloboda; Nicky Hager). It also ignored the evidence that what the U.S. describes as “solicitation” is in fact routine newsgathering activity.
Mark Feldstein, a journalism historian and professor, submitted to the court in September 2020: “The government’s attempt to draw a distinction between passive and active newsgathering — sanctioning the former and punishing the latter — suggests a profound misunderstanding of how journalism works.
“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.”
The submission on behalf of the U.S. went further to wrongly assert that Manning responded directly to that so-called solicitation, ignoring evidence from her court martial and later retold in her memoir that she in fact contacted both The New York Times and The Washington Post before contacting WikiLeaks. It also ignored the fact Manning provided documents that were not in the “Most Wanted List” as well as disregarding her own motivations for disclosing the material.
Dobbin went on to allege that from the very founding of WikiLeaks, it actively sought to work with hackers in order to illegally obtain materials, pointing to statements contained in the Second Superseding Indictment that came from the informant “Teenager” which alleged: “Assange asked Teenager to commit computer intrusions and steal additional information, including audio recordings of phone conversations between high-ranking officials of the government of [a] NATO country.”
What that affidavit and Dobbins failed to mention, as has been publicly known since 2021, was that “Teenager” was in fact Sigurdur Thordarson — a short-term volunteer for WikiLeaks who after leaving the organisation went on to be charged with embezzlement, fraud and theft, as well as sexually abusing nine boys. An Icelandic court found that he was a sociopath with severe anti-social personality disorder who could not distinguish right from wrong. He confessed to Icelandic publication Stundin — which has since merged with another publication and rebranded to Heimildin — that his testimony, paid for by the FBI, was fabricated.
However, perhaps the height of the deception attempted by Dobbin was when she later told the court that the material published by Assange and WikiLeaks “advanced no public interest whatsoever.”
While lawyers for Assange did not make any representations with respect to Thordarson, they were quick to pick up the point about the public interest when they were given an opportunity to respond towards the end of the hearing.
Mark Summers KC, on behalf of Assange, said that in the course of Dobbin’s submissions, she made no effort to address the fact that the disclosures made by WikiLeaks regarded state-level criminality committed by the United States.
“One may think it an impressive feat to spend two-and-a-half hours on your feet promoting the prosecution of materials disclosing war crimes without acknowledging it or even mentioning it, but there we are,” he said.
Summers further argued that the lawyers on behalf of the U.S. made no effort to combat points raised the day earlier that by prosecuting Assange for documents that contained evidence of state wrongdoing, it demonstrated state retaliation “ordered from the very top.”
He further said lawyers for the U.S. did not seek to challenge how, after being dormant for six years, the prosecution only sought to bring a case against Assange only after after the International Criminal Court began investigating accusations of U.S. war crimes in Afghanistan as part of a pattern to shield U.S. officials from scrutiny. Nor did they adequately address that charges came directly after White House lawyers were concerned that to rendition Assange without charges, they would be unable to hold him, he said.
In addressing the public denunciations of Assange by U.S. officials, lawyers for the U.S. pointed to how former President Donald Trump occasionally made remarks praising the WikiLeaks publisher. However, Summers said they made no mention “of what we all now know” — in reference to a Yahoo! News article — that the former president was personally involved in plans to kill him.
Similarly, Summers argued, lawyers for the U.S. offered no defence against the assertion that Assange’s charges were “unforeseeable” — thus a violation of Article 7 of the European Court of Human Rights (ECHR).
Elsewhere in his representation, Summers pushed back against the opposing assertion that Assange would not be entitled to Article 10 protections on freedom of expression because he agreed to crack a password hash for Manning (though this attempt was unsuccessful and did not result in any further documents going towards WikiLeaks).
He said that American and European law is clear: if you engage in hacking or criminal behaviour, being a journalist is not a valid defence and you can still be prosecuted. However, he noted, there was nothing in either U.S. or European law to suggest that it is criminal to later publish the state secrets, even if they were obtained illegally.
Meanwhile, in his rebuttal on behalf of Assange, Edward Fitzgerald KC pushed back against on the assertions by lawyers for the U.S. that it is only the Extradition Act of 2003 — which contains no protections for political offences — which is the sole governing instrument for extradition.
Fitzgerald said this was covered in his first day of submissions in which he argued that the U.S. approach was a violation of ECHR’s Article 5 on arbitrariness — which is incorporated into the 2003 Act. “Arbitrariness can take many forms, but downright inconsistency on the part of the state must be a basis for saying there’s arbitrariness.”
By seeking to extradite someone on the basis of the Extradition Act of 2003, but ignoring the Anglo-American Treaty on Extradition which forms the basis of the extradition request, this was inconsistent on the part of the U.S., Fitzgerald said.
Judges’ Questions
Elsewhere in the proceedings, some of the strongest pushback against U.S. arguments in fact came from the judges themselves.
While Dobbin addressed the court on the publication of unredacted documents by WikiLeaks, Justice Jeremy Johnson — who was revealed by Declassified UK to have a security clearance and had represented Britain’s Ministry of Defence and MI6 in a previous role — interjected to seek a clarification from the barrister representing the U.S.
He rightly noted that others — including John Young of Cryptome — made the unredacted cables in question available on the internet before WikiLeaks had, but they were never prosecuted by the U.S. government.
Despite the inconsistency, Dobbin responded that Assange “was the person responsible, first of all, for that material having ended up in the hands of other organisations.”
Later, when Dobbin argued that under British law, Assange could be prosecuted under Section 5 of the Official Secrets Act — which applies to publishers as opposed to representatives of the state — and that it would be in accordance of ECHR Article 10, Justice Johnson again interjected: “In relation to your last point that if in this country, a journalist had information of very serious wrongdoing by the intelligence agencies and incited an employee of that agency to provide information, and then the information was provided and then published in a very careful way, do you say then that the prosecution would be compatible with Article 10?”
When Dobbin said she wasn’t sure if there was a “straightforward answer,” Justice Johnson added that according to her submission, there was no scope for a “balancing act” or “prosecutorial discretion,” when it came to the journalist. She was then forced to concede that “a prosecution would only get off the ground” if the journalist published something they “knew to be damaging,” hence satisfying the proportionality aspect of Article 10.
And once again, when Dobbin tried to argue away statements from prosecutor Gordon Kromberg and former CIA director Mike Pompeo suggesting that Assange would not be entitled to First Amendment rights under the U.S. Constitution if extradited — thus discriminating against him on grounds of his Australian nationality and violating Section 81(b) of the 2003 Extradition Act — Justice Johnson pointed out to Dobbin that the test under this section was not whether Assange “would be” discriminated against, but rather that he “might be.”
It was developments such as this that can give hope to those who believe that the prosecution of Assange is unjust and that it must come to an end. However, the judges reserved the right to make their ruling until a later date.
The case continues.