Strange Defenders: Assange and the Press

Photograph Source Elekhh – CC BY-SA 3.0

In recent days, in response to the Trump administration’s issuance on May 23 of a 17-charge indictment against WikiLeaks founder Julian Assange, a number of prominent liberal columnists and Democratic politicians have come out with highly critical comments. Understandably, many long-time supporters of Julian Assange have seized on these condemnations as a chink of light in the darkness of the U.S. Government’s decade-long pursuit of the trailblazing publisher, as a hopeful sign that, finally, it might be possible to move defense of Julian Assange into the mainstream.

However, such rejoicing may be misplaced, at best, and dangerously deluded, at worst. Who are these liberal icons taking a stand on behalf of Assange? They included Sens. Bernie Sanders (D-Vt.), Elizabeth Warren, (D-Mass.) and Ron Wyden (D-Ore.). They also included journalists such as Alan Rusbridger, former editor of the Guardian; Masha Gessen of the New Yorker; MSNBC host Rachel Maddow; and the editorial boards of the New York Times and the Washington Post. So, let’s take each of them, one by one.

First, there’s tribune of the people Bernie Sanders. Sanders had said nothing about the first indictment, issued on April 11, but came out with a strange tweet 24 hours after the issuance of the May 23 indictment:

“Let me be clear: it is a disturbing attack on the First Amendment for the Trump administration to decide who is or is not a reporter for the purposes of a criminal prosecution. Donald Trump must obey the Constitution, which protects the publication of news about our government.”

Sanders’s comments appeared in a re-tweet of an American Civil Liberties Union tweet:

For the first time in the history of our country, the government has brought criminal charges under the Espionage Act against a publisher for the publication of truthful information. This is a direct assault on the First Amendment.

The ACLU tweet was forthright and unambiguous. Not so Sanders’s tweet, which failed to name either Assange or WikiLeaks. Moreover, the issue Sanders that disturbs Sanders, namely, who is or is not a reporter, isn’t one raised by the ACLU, which states that the target of prosecution is a publisher of truthful information. However, without a mention of either Assange’s name or the recent indictment, Sanders’s intervention is unlikely to have much of an impact.

Then there’s Elizabeth Warren. She was quoted as saying, “Assange is a bad actor who has harmed U.S. national security—and he should be held accountable. But Trump should not be using the case as a pretext to wage war on the First Amendment and go after the free press who hold the powerful accountable everyday.” It’s hard to decide which is more objectionable: her characterization of Assange as “a bad actor,” without explaining why and what she means by the term; her insistence that he “be held accountable,” without explaining for what or in what way (lethal injection, perhaps?); or her transparent attempts to ingratiate herself with the press, who are supposedly holding “the powerful accountable everyday.”

Warren’s statement, like that of Sanders, oozes insincerity. The two presidential aspirants know perfectly well that the Democratic Party national leadership blames Assange for the 2016 electoral debacle, and would like to see him executed or, at the very least, chained to a wall in a Supermax prison for the rest of his life. Any statement from them that smacks even vaguely of a defense of WikiLeaks would mean instant excommunication. However, some of Sanders and Warren’s supporters do undoubtedly feel that Assange and WikiLeaks have been unjustly persecuted; hence the convoluted, and largely worthless, nonsense.

And that’s it. Not one presidential candidate, other than Rep. Tulsi Gabbard (D-Hawaii) and Sen. Mike Gravel (both of whom having spoken out in defense of Julian Assange long before the release of the superseding indictment) has said anything about Assange. So, not exactly a tidal wave of support. To his credit, Ron Wyden did issue a statement on the day of the new indictment, one that was mercifully free of the Sanders/Warren contrivances:

This is not about Julian Assange. This is about the use of the Espionage Act to charge a recipient and publisher of classified information. I am extremely concerned about the precedent this may set and potential dangers to the work of journalists and the First Amendment.

Wyden’s relative boldness is probably not unrelated to his not running for president, and hence to his not needing the help of Democratic Party.

Let us consider the journalists, who are supposedly now moving to Julian Assange’s side. Take the New York Times. On April 11, the day of Julian Assange’s arrest and the unsealing of the first indictment, the Times ran a classic smear job in its news pages. The story was packed with familiar allegations and insinuations, none supported by any evidence. As usual, the Times’s assertions went even beyond those of the zealous prosecutors. “Throughout the 2016 campaign,” the Times reporters claimed, “Mr. Assange played down accusations of Russian interference, and misled the public on his source for the damaging documents WikiLeaks released.” The slippery use of the word “misled” is based on at least two unsupported assumptions: the Russians were the source of the DNC/Podesta e-mails and that Assange knew that they were the source. (Neither President Obama nor the Mueller team has ever made the latter claim; Mueller implied it, but didn’t say so explicitly.)

In its editorial, published the same day, the Times, after first charmingly noting that “British police officers unceremoniously bundled the scraggly-bearded refugee off in a van,” explained why the indictment was heartening: “The administration has begun well by charging Mr. Assange with an indisputable crime.” A legal proceeding against Julian Assange would be useful, moreover, in that it “could help draw a sharp line between legitimate journalism and dangerous cybercrime. Once he’s in the United States, moreover, Assange could prove to be a useful source on how Russia orchestrated its attacks on the Clinton campaign.” No one could come away from reading this editorial without concluding that the Times was delighted that the U.S. Government was finally going after Assange.

So, did the Times change its position on Assange on May 23? Let’s first look at how the Trump Justice Department unrolled its indictment. Let’s look at the statement of Assistant Attorney General for National Security John C. Demers, in particular to the assertion that Assange is no journalist:

Some say that Assange is a journalist and that he should be immune from prosecution for these actions. The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting. Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources. Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers.

U.S. Attorney G. Zachary Terwilliger for the Eastern District of Virginia then chimed in:

Assange is charged for his alleged complicity in illegal acts to obtain or receive voluminous databases of classified information and for agreeing and attempting to obtain classified information through computer hacking. The United States has not charged Assange for passively obtaining or receiving classified information. The indictment alleges that Assange published in bulk hundreds of thousands of these stolen classified documents. But the United States has not charged Assange for that. Instead, the United States has only charged Assange for publishing a narrow set of classified documents in which Assange also allegedly published the un-redacted names of innocent people who risked their safety and freedom to provide information to the United States and its allies. These sources included local Afghans and Iraqis, journalists, religious leaders, human rights advocates, and political dissidents from repressive regimes.

In other words, the U.S. wasn’t charging Assange for publishing “stolen classified documents”; it was charging him for publishing classified documents in which he published the “un-redacted names of innocent people.” So, no reason for anyone to panic; no one’s going after “real” journalists.

The measure of the sincerity of media complaints about the new indictment would be the extent to which they echo or distance themselves from the words of the U.S. Government officials bringing it forward. Sure enough, the New York Times repeated the officials’ claims almost word-for-word. The editorial started off by asserting that Assange

released numerous documents without removing names of confidential sources, putting their lives in jeopardy. The government notes in its charging document that those put at risk included “journalists, religious leaders, human rights advocates, and political dissidents” living in repressive regimes who provided information to the United States.

The government’s claim that WikiLeaks’s disclosures put “in jeopardy” the lives of “confidential sources” is belied by the fact that during the 2013 court martial of Chelsea Manning, it failed to name even one “source” who had lost his life. The use of the word “sources” suggests foreigners risking their lives to help Americans. In reality, the “sources” named in the WikiLeaks documents refer to anyone to whom U.S. diplomats have talked. There is no reason why the tens, if not hundreds, of thousands of such people should enjoy anonymity in perpetuity.

The Times admits that it had worked with Assange in the past when the paper published WikiLeaks material. Those documents “shed important light on the American war effort in Iraq, revealing how the United States turned a blind eye to the torture of prisoners by Iraqi forces and how extensively Iran had meddled in the conflict.” What a relief then that the Times was able to expose malfeasance on the part of Iraqis and Iranians—the bad guys! Perhaps if it had been Iranians who had shot up the two Reuters war correspondents, the Times might have got around to mentioning the Collateral Murder video.

Be that as it may, the Times goes on, while WikiLeaks may have done some useful work in the past, the paper had always treated WikiLeaks as “a source,” never as “a partner.” Moreover, unlike WikiLeaks, the Times “does not condone breaking into government computers or irresponsibly publishing the identities of sources.” Nevertheless, the paper concludes, the Trump administration “has chosen to go well beyond the question of hacking to directly challenge the boundaries of the First Amendment.”

The editorial was a head-scratcher: If WikiLeaks is a “source” and not a publisher worthy of partnership with the Times, it’s hard to see why respectable media outlets should have anything to fear from a prosecution of Assange under the Espionage Act. According to the First Amendment doctrine continually espoused by U.S. media, sources are fair game for prosecutors, while the media are untouchable. This was precisely the point the Trump DOJ officials were making.

Let’s take a look at the Washington Post. Its editorial page purred with satisfaction on the day of Julian Assange’s arrest. His arrest was “a victory for the rule of law, not the defeat for civil liberties of which his defenders mistakenly warn.” The editorial accepted without question the prosecutors’ allegation against him. Assange, the Post said, obtained his documents “unethically…including… by trying to help now-former U.S. Army soldier Chelsea Manning hack into a classified U.S. computer system. Also unlike real journalists, WikiLeaks dumped material into the public domain without any effort independently to verify its factuality or give named individuals an opportunity to comment.”

This last statement is truly the height of insolence. WikiLeaks has never been shown to have published anything false. The same cannot be said about the Post. A few recent examples: Its blockbuster story about Russians’ supposedly hacking the U.S. electricity grid through a utility in Vermont; its smear of a story alleging that innumerable independent media were advertent or inadvertent tools of Russian propaganda; its exultant discovery of an e-mail sent by former Trump attorney Michael Cohen to Kremlin press secretary Dimitry Peskov—“the most direct interaction yet of a top Trump aide and a senior member of Putin’s government.” As Matt Taibbi wrote,

the whole episode was a joke. In order to further the Trump Tower project-that-never-was, Cohen literally cold-emailed the Kremlin. More than that, he entered the email incorrectly, so the letter initially didn’t even arrive. When he finally fixed the mistake, Peskov didn’t answer back.

As for unethical conduct, nothing WikiLeaks did surpasses for lack of ethics the Post’s disclosure of the contents of a telephone call between incoming National Security Adviser Michael Flynn and Russian Ambassador Sergey Kislyak that was listened in on by the National Security Agency. The unmasking of an American who is not the subject of surveillance is a crime, and without question morally dubious.

So, on April 11, the Post was extremely enthusiastic about Assange’s indictment. The sooner the U.S. Government could get its hands on him the better:

Britain should not fear that sending him for trial on that hacking count would endanger freedom of the press. To the contrary, Mr. Assange’s transfer to U.S. custody, followed possibly by additional Russia-related charges or his conversion into a cooperating witness, could be the key to learning more about Russian intelligence’s efforts to undermine democracy in the West. Certainly he is long overdue for personal accountability.

So, the British should transfer Assange into the custody of the U.S., which should then issue “additional Russia-related charges,” presumably additional to what’s stated in the extradition request. It’s not in accord with international law or domestic law, but who cares? There’s bigger fish to fry: “Russian intelligence’s efforts to undermine democracy in the West”!

In its May 24 editorial, the Post lamented that Assange could slip through U.S. hands. If only the Trump administration had kept to the original charge, “the federal government could have locked up Mr. Assange for years without challenging the First Amendment, chilling reporters’ activities or discouraging the British government, which is holding Mr. Assange, from extraditing him to the United States rather than to Sweden, where he faces a rape investigation.” Instead, the Trump administration is going after Assange under a legal theory that “could easily be applied to journalists,” though of course Assange no journalist.

The same theme—let’s nail Assange, but let’s leave the Espionage Act out of it—informed the column of Alan Rusbridger, former editor of the Guardian. He too starts with the obligatory personal attack: Assange is “mercurial, untrustworthy and dislikable.” He expressed disapproval of Assange’s “releasing unredacted material from the Manning trove in September 2011,” omitting naturally the Guardian’s role in the disclosure of the “unredacted material.” The unredacted material, including names of sources, became publicly available because two Guardian writers, David Leigh and Luke Harding, published in 2011 a cash-in book, WikiLeaks: Inside Julian Assange’s War on Secrecy, in which they, for reasons never explained, disclosed the password to all of the WikiLeaks files. Assange published the unredacted files in response to the Guardian’s disclosure of the password, in order to provide the named sources a measure of protection.

Nonetheless, Rusbridger argues, though Assange is a terrible and irresponsible person, “the attempt to lock him up under the Espionage Act is a deeply troubling move that should serve as a wake-up call to all journalists.” Rusbridger’s call of course leaves open the possibility that he would look on with favor an attempt to lock up Assange under something other than the Espionage Act. This is indeed the editorial position of the Guardian, which, following the release of the May 23 indictment, called on the U.K. Home Secretary to pack Assange off to Sweden to face “a rape charge process” there: “This is serious and deserves a proper trial.” The peculiar term “rape process” was a later addition. The editorial had originally said “rape charges.” In response to readers’ pointing out that no “rape charges” have ever been filed against Assange, the Guardian inserted that suggestive yet meaningless term.

Conveniently, the Guardian doesn’t insist on the Home Secretary’s imposing on any extradition of Assange to Sweden the condition that he not be transferred to the United States. Nor, significantly, does the paper express any readiness to see Assange walk free in the event that Sweden’s courts fail to press charges against him, that they acquit him or that they convict but release him within a couple of years.

The same odd combination of furious disavowal of Assange and apparent alarm over the new indictment informed the views of a number of liberal commentators. Consider the New Yorker’s Masha Gessen. Her article kicks off with the standard attacks on Assange: He “keeps terrible political company,” he is “power crazed and manipulative,” “he shared information that exposed people to danger.” Such attacks are of course a rhetorical device, introduced in order to show us what a fine, principled person the author is. Yes, X is the scummiest person to have walked this earth since Adolf Hitler, but I will fight to the death X’s right to say or do…whatever. This kind of stuff does wonders for the writer but very little for the purported object of the so-called principled defense. All a reader comes away with is that “X is the scummiest person since Adolf Hitler” and thus hardly merits time or attention.

Sure enough, Gessen’s anti-Assange vituperations segue into the predictable “One has to hold one’s nose while defending Assange—and yet one must defend Assange.”

Of course, what comes next is not any kind of a defense of Assange. There is no defense of the publication of critical material such as the Guantanamo Files, Afghan War Diary, Iraq War Logs, Cablegate. None of that is mentioned, not even Collateral Murder. So, what’s her defense of Julian Assange? Apparently, it’s that if the government goes after Julian Assange under the Espionage Act one day, it might go after an august publication such as the New Yorker or the New York Times under the same act the next. However, Gessen immediately undercuts her own argument by happily repeating, as the Times did, the Trump DOJ assertion that Assange is no journalist:

The government has argued that Assange is not a journalist. Most journalists would probably agree: the indiscriminate publication of classified information (or any other information, for that matter), with neither a narrative nor regard for people’s safety, is not journalism in any conventional understanding of the word.

So, if the U.S. Government says Assange isn’t a real journalist, and is only going after him for doing things that Gessen and others say real journalists don’t do, then why the anguish? Well, she says, “The last thing we want the U.S. government, or any government, to do is to start deciding who is and who is not a journalist.”

So, once again, Assange is a terrible person and not even a real journalist at that, yet we must defend him because one day the Trump administration might go after a real journalist. OK, but what if it doesn’t? What if the government is telling the truth and intends only to go after Assange? (That may be true. As the Nixon administration found, going after the New York Times isn’t worth the hassle.) Would that make the prosecution of Assange acceptable? If your answer is yes, then you aren’t really interested in the freedom to publish. In any case, whether the government goes after “real” journalists is scarcely the issue. The First Amendment protects everybody who thinks, writes, expresses an opinion or argues with his neighbor. There is no special carve-out for journalists. For Gessen and the New York Times to get into this semantic debate over who is and who isn’t a journalist means they have already accepted the terms of the debate as the U.S. government has set them.

Then, there is also the interesting case of Rachel Maddow, the prime exhibit in the case that the tide is shifting in favor of Julian Assange. On the evening of May 23, rumors began to swirl that Maddow had come out fiercely against the new indictment and embraced the cause of press freedom. Caitlin Johnstone wrote excitedly:

Rachel Maddow has aired a segment condemning the new indictment for 17 alleged violations of the Espionage Act. Yes, that Rachel Maddow. Wow. Make no mistake, this is a hugely significant development….Now that she’s recognized that this could actually hurt her and her network directly, she’s finally feeding her audience a different narrative out of sheer enlightened self-interest….Maddow’s credulous audience would eat live kittens if she told them to, so the way she’s pushing back against a dangerous legal precedent in language they can understand will make a difference in the way American liberals think about Assange’s predicament….She actually chose to do the right thing. I’m gobsmacked, and it’s not an exaggeration to say that my hope for humanity sparked up a little today.

Wow! Gobsmacked! Let’s take a look at what Maddow actually said. On April 11, she did a long segment about Assange’s arrest, focusing exclusively on the question of whether Assange would be put on trial for his “major role in the Russian military intelligence operation that monkey wrenched the 2016 election.” She was of course alarmed that he wouldn’t be:

I think if they are going to charge anything about Assange and his role in that attack, if they are going to charge anything against Assange other than what they`ve already put in this initial indictment, the way I read this, I think, they`re going to have to do so really, really quickly like imminently, like this isn`t going to linger….After you`re extradited, no more charges.  The extraditing country has to know exactly what you`re facing before they make the decision to send you over here, the Rule of Specialty….As far as I understand this, if U.S. prosecutors do intend to file any more charges against Julian Assange, they really won`t have much more time to get that done because the U.K. will extradite him in short order and that`s a full stop on anything else being added to the charges against Assange

So, what mattered to her wasn’t the issue of press freedom; what mattered, as always, was Russia. She was concerned that the Trump administration was dawdling, avoiding charging Assange with Russia stuff. On May 23, she returned to this theme, making clear that she did not believe the Trump administration was serious about extraditing Assange:

Now today, apparently, the United States government has decided maybe they don`t want the U.K. to extradite Julian Assange here to ever face trial. Or at least that would appear to be the intriguing, fascinating and very worrying bottom line of this remarkable thing that the Justice Department did today when they unsealed a new superseding indictment, so an additional indictment against Assange.

Pay close attention to what she is saying here. What’s “fascinating” and “very worrying” is not that Assange will be prosecuted. It’s that he won’t be prosecuted. She then continues her lament by pointing out that a successful prosecution of Assange under the Espionage Act is virtually impossible:

These new charges are trying to prosecute Assange for publishing that stolen secret material, which was obtained by somebody else. And that is a whole different kettle of fish than what he was initially charged with.  There has never in this country been a successful prosecution under the Espionage Act of some third party for publishing something that somebody else stole or something that otherwise made its way out of the government while the government was trying to keep it secret. We`ve never in this country successfully charged somebody for publishing secret material.

Her point is that the DOJ knows full well that the U.K. courts will almost certainly not grant its extradition request, and that’s precisely the reason why Trump made it. He wants the extradition process to fail because he doesn’t want to bring Assange to the United States. That’s why Trump’s new charges are not about what they should be about: They are not about Assange’s

working with Russian intelligence material in 2016 to try to help Trump win the election and to try to hurt Hillary Clinton.  This is not about WikiLeaks and Julian Assange personally strategizing with Trump campaign staffers about how to beat Hillary Clinton as they were releasing all of that information stolen by the Russians.

In other words, Trump doesn’t want Assange over here to disclose all of the grimy details of their collusion with Russia. Hence, the issuance of an indictment guaranteed to be rejected by the U.K. There is nothing whatsoever here about the right to publish.

The first thing to take note about this alleged tidal wave of support for Julian Assange among liberals is that no one is actually expressing any support for Julian Assange or WikiLeaks. There were no criticisms of the first indictment of Assange that the U.S. unsealed on April 11, despite the none-too-subtle hints in it that an Espionage Act prosecution was in the works. There have been no condemnations of the indefinite detention of Chelsea Manning on no ground other than that she refuses to testify against Assange. The media as usual dismiss any concern about her fate, adopting the smug attitude that, as a “source,” she’s not really entitled to the legal protections afforded to journalists by the First Amendment. Using that logic, it would have been perfectly fine to imprison Daniel Ellsberg for decades even as the New York Times was collecting its Pulitzers.

There is something wildly implausible about the idea that liberal commentators will now be manning the barricades on behalf of Julian Assange and Wikileaks, that as a result of the issuance of the superseding indictment, the scales have fallen from their eyes. It is hard to believe that during all of those years that Assange was holed up in the Ecuador embassy, warning that the Swedish extradition request was simply a ruse to ship him to the United States, it never occurred to liberal commentators that issues of the freedom of the press and the First Amendment were at stake.

Now, it is possible that these liberal commentators did not believe that Julian Assange would ever be prosecuted. Maybe they really did think that he was confined for years in the tiny Ecuador embassy because he was afraid of going on trial in Sweden or serving a few months for bail jumping. Maybe so, but if that is the case, then their silence during the years when key figures in the U.S. political establishment were calling for his execution and/or imprisonment was deafening. There were no calls for his release or for a clarifying statement from either the Obama or the Trump administration as to whether it intends to prosecute Assange.

The truth is that for most liberal commentators the only problem they have with any indictment and obviously lengthy imprisonment of Assange is the use of the Espionage Act to get there. If the Trump administration were to come up with some other mechanism, if it could charge him with something other than violation of the Espionage Act, everything would be fine.

There is every likelihood that this will happen. The grand jury in the Eastern District of Virginia is still sitting. Chelsea Manning is still in prison for refusing to testify against Assange. That the grand jury has not been dissolved and that Manning has not been released, even after the release of the indictments, indicate strongly that additional indictments against Assange are pending.

Then there is RussiaGate. So far, the Eastern District of Virginia has focused on 2010 stuff. It could well shift its attention to 2016. Recall that in July 2018, Mueller charged 12 alleged members of the GRU with “conspiracy to commit an offense against the United States.” These GRU officers

knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the “Conspirators”), to gain unauthorized access (to “hack”) into the computers of U.S. persons and entities involved in the 2016 U.S. presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere with the 2016 U.S. presidential election.

Well, Julian Assange was part of that conspiracy, says Mueller. It is surely only a matter of time before Assange is formally charged with involvement in this conspiracy with the GRU to sabotage the U.S. election. Also significant is the transfer of Assange’s personal belongings by Ecuador to the U.S. The U.S., at this very moment, is doubtless sifting through Assange’s hard drives and flash drives and probably fabricating discoveries (“new evidence”) that will find their way into any new indictment.

Should the Eastern District of Virginia prosecutors will now issue an indictment of Assange charging him with interference in the U.S. election on behalf of the GRU, there will be cries of glee and rejoicing, not only in the studios of MSNBC but in the offices of the DNC, the Democratic caucus on Capitol Hill, the editorial offices of the New York Times and Washington Post, and on the Twitter feed of every single liberal commentator in the country. This will indeed be a tidal wave of support.