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Judge's Decision in Assange Case 'Casts a Shadow Over Investigative Journalism', Critics Warn

© Photo : Mohamed ElmaaziThe Old Bailey 5 September 2020 by Mohamed Elmaazi
The Old Bailey 5 September 2020 by Mohamed Elmaazi - Sputnik International
A review of Judge Baraitser's 132-page judgement reveals that she considers the alleged behaviour of the WikiLeaks publisher to be akin to a "co-conspirator" with US Army whistleblower Chelsea Manning and not that of a "proper journalist".

The judge in Julian Assange’s extradition hearing decided that the WikiLeaks publisher should not be extradited to the United States on the grounds that he is at “high risk” of suicide or self-harm on 4 January 2021. District Judge Vanessa Baraitser’s reasoning was based upon the pre-trial and post-trial conditions Assange would likely be subjected to in America, namely solitary confinement and Special Administrative Measures.

However, the judge’s decision has still come under heavy criticism for its acceptance of the overall legitimacy of the US prosecution’s claims. Namely, that the charges against the award-wining journalist do not pose a threat to freedom of speech and freedom of the press and that should he be extradited he could and should challenge the US government’s claims and raise any arguments in his defence at trial.

In particular, the court decided that:

  • Assange’s alleged conduct went above and beyond that of a “responsible” journalist and, if proven, his actions should not be protected by the right to freedom of speech and press, which are themselves not absolute rights.
  • Assange’s alleged actions put the lives of US government sources and informants at risk.
  • Assange could potentially raise arguments that his disclosures caused no harm at trial.
  • Alleged surveillance of Assange’s lawyer-client conversations is either unproven or immaterial.
  • There is no evidence that the prosecution of Assange is “politically motivated”.

Assange's alleged actions crossed the line, behaving more like a 'co-conspirator’ than a 'proper' journalist, judge says

Judge Baraitser made clear that "in my judgment, Mr. Assange’s alleged activities went beyond the mere encouragement of a whistle-blower". In allegedly seeking to encourage US Army whistleblower Chelsea Manning to pass on classified documents to him, Assange went beyond the actions of a "proper journalist", the judge writes. "[C]urious eyes never run dry in my experience", Assange is alleged to have messaged to Manning when seeking to encourage her to disclose further material. This quote between someone at WikiLeaks (presumed to be Assange) to Manning was referenced by the judge three times in her written decision as well as during her brief oral summary the morning she handed down her judgement. 

“During their contact over many months, [Assange] encouraged [Manning] to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him", Judge Baraitser writes in her judgement.

"If the allegations are proved", she continues, "then his agreement with Ms. Manning […] took him outside any role of investigative journalism”.

In support of her decision, the judge makes reference to rules under the UK Officials Secrets Act that would permit the British government to not only prosecute leakers but also those who receive national security documents. “The scheme of the [Official Secrets Act] would be undermined if the disclosures made by a Crown servant, in this case by Ms. Manning to Mr. Assange, were treated differently to the disclosures of her co-conspirator", the judge opines.

Judge Baraitser therefore makes clear that she considers Assange to be a "co-conspirator" if his encouragement of Manning in securing documents from her is proven. Under such circumstances, the judge sees no problem with extending criminal charges to a publisher like Assange.

"To find otherwise would be to provide a route to disclosure by a Crown servant which Parliament through the scheme of the Act has expressly denied", she explains. Therefore, by Judge Baraitser's way of thinking, if UK law permits prosecution of journalistic publishers of classified information, which in her view it not only does but it should, then there is no inherent issue with subjecting Assange to a US prosecution for publishing classified information.

Significantly, Judge Baraitser adds that had Assange "decided not to assist Ms. Manning to take the information in the various ways described above, and merely received it from her, then the Article 10 [of the European Convention on Human Rights guaranteeing the right to freedom of expression and information] considerations would be different”.

Multiple experts in journalism testified in September that investigative journalists don’t simply wait for information to fall in their lap but in fact often seek out information and even encourage sources to provide more information. For example, Trevor Timm, the director of the Freedom of the Press Foundation, told the Court "I myself have advocated for leaks in cases where the US secrecy system is hiding abuse, corruption, or illegal acts". As an example, he described a 2014 article he wrote "specifically calling for the leak" of the classified version of the Senate Committee report on CIA Torture.

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The alleged attempt by Assange to help Manning crack a password hash on her US military computer system,  albeit unsuccessfully, relates to the single count of “conspiracy to commit computer intrusion” under the Computer Fraud and Abuse Act filed against him.

The prosecution alleges that the hash cracking agreement, which never came to fruition, was to assist in hiding Manning's identity so that she could evade detection. This they say proves a criminal conspiracy. For the defence's part, they presented testimony from journalistic experts Timm, Professor Mark Feldstein and Nicolas Hager explaining that aiding sources in protecting their identities is standard journalistic practice and even arguably an "obligation". The judge's decision shows that she was ultimately unconvinced by these arguments. Judge Baraitser writes in her judgement that the defence "submits that the hash-cracking agreement was merely an attempt to protect the anonymity of Ms. Manning as his source". However, as the closing submissions filed with the court make clear, the defence's position is that "the true use to which this password hash ‘cracking’ could actually have been directed" was to install programmes "to play movies and music".

The defence's submitted technical evidence from Mr Patrick Eller, a former US Army digital forensic criminal investigator, that cracking the password hash as alleged by the US government was neither possible nor necessary. Mr Eller also explained that the idea that Manning needed to crack a password hash to hide her identity was not supported by the evidence. He also told the court that Manning’s apparent attempt to crack a password hash was consistent with the argument that she was seeking to gain access to an entertainment website that was blocked from use by the US military to its service personnel. The court also heard that Manning, along with tens of thousands of others in the armed forces, already had access to all the documentation that she ultimately leaked to WikiLeaks.

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Ultimately, Judge Baraitser only referenced Mr Eller twice in her whole judgement and determined that whether the hash-cracking was possible or conceivably had anything to do with the transmission of classified documents are "matters for a trial". Though she also noted that it is apparently "well-settled under US law that impossibility is not a defence to a conspiracy charge".

Assange could challenge at trial allegations that he endangered the lives of US informants, says judge

It is alleged in some of the charges against Assange that his disclosures put the lives of US government assets at risk in countries such as Afghanistan and Iraq. Although the US admitted it has no proof that any actual harm occurred as a result of the disclosures – most of which followed a nine-month process of extensive redactions by WikiLeaks during which time the US State Department was aware of the upcoming publications – the judge accepted that the risk of harm existed. Judge Baraitser writes:

“In order to determine the issue, the trial court [in the US] would examine the impact of the Wikileaks disclosures”.

This suggests that Assange would be able to defend himself in a US trial by pointing to a lack of evidence of harm resulting from his disclosures. But the wording of the relevant legislation does not actually require the state to prove harm, merely that the accused “has reason to believe” the information they disseminate “could be used to the injury of the United States or to the advantage of any foreign nation”. On top of which, as the judge herself notes, even the condition that such national defence information “could be used” in an injurious manner to the US is not a requirement under most of the criminal charges levied against Assange under the Espionage Act.

The charges against Assange are, in effect, “strict liability” offences in that no damage or injury needs to be proven and the “motivations” of the accused is legally irrelevant. Either one obtained, possessed and published the documents in question or they did not. Therefore, any arguments about the nature of journalism or the public interest would presumably, as a matter of law, be considered wholly irrelevant by any US court. A point that was raised during the substantive extradition hearings by multiple witnesses.

Evidence presented by former US Pentagon Papers whistleblower Daniel Ellsberg in September 2020 confirms this reading of the Espionage Act. Ellsberg testified on behalf of Assange that during his own trial in 1973, when he was charged under the Espionage Act, any attempt to explain to the jury his motivations in leaking the materials that he did were consistently disallowed by the judge as irrelevant, since the Espionage Act does not provide for a defence. The case against Ellsberg ultimately collapsed due to improper conduct on the part of the US government.

Judge rejects relevance of alleged CIA-linked surveillance and finds no evidence of a “politically motivated prosecution”

The judge also considered and rejected evidence that Assange, his lawyers and his lawyer-client conversations were spied upon directly and indirectly by the Central Intelligence Agency and Spanish security firm UC Global. “In my judgment, it would be inappropriate for this court to make findings of fact on allegations still being investigated in Spain and on the basis of partial and incomplete evidence”, the judge writes, explaining that the criminal case against the CEO of UC Global, David Morales, is still ongoing.

​But Judge Baraitser went further. She also determined that even if there was surveillance of the Ecuadorian embassy, Assange and his legal communications, there is still “no reason to assume this related to [the US case against him]”. She added that the US government “would be aware that privileged communications and the fruits of any surveillance would not be seen by prosecutors assigned to the case” and that any such evidence “would be inadmissible at Mr. Assange’s trial as a matter of US law”.

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The fact that the government might gain an undue advantage against Assange due to their recording of his legal conversations and could modify their case against him was not addressed by the judge. Nor did she consider the possibility that such surveillance would in and of itself be evidence of abuse of power or political interference with or political motivation behind the prosecution of Assange. Instead, she suggests that any surveillance of the WikiLeaks publisher could be understood as reflecting the intelligence community’s “perception that Mr. Assange remained a risk to their national security”.

Ultimately, Judge Baraitser determined that the defence failed to establish that Assange “has been the target of a politically motivated prosecution”. While she has “no doubt that the intelligence community regard him as a threat to the national defence”, she found “no indication” that animosity from organisations like the CIA has “translated into hostility from the Trump administration” or that “officials from the administration put improper pressure on federal prosecutors to bring these charges”. “I have no reason to find that prosecutors did not make their decisions in good faith", the judge concluded.

Judge's decision casts "a shadow over investigative journalism" First Amendment expert says

Although the judgement in Assange’s case is certainly a victory for those that want to see him freed and returned to his family, it is clear that the nature of the judge’s decision is a matter of great concern to campaigners, lawyers, rights groups and journalists worldwide.

​Jameel Jaffeer, director of the Knight First Amendment Institute at Columbia University and former Deputy Legal Director of the American Civil Liberties Union, summed up the feeling among those who remain critical of the judge’s decision. “[Judge Baraitser] makes clear that [she] would have granted the U.S. extradition request if not for concerns about Assange’s mental health, and about the severe conditions in which the U.S. would likely imprison him”, Jaffer wrote on Twitter. The result, in Jaffer’s opinion, is that “the indictment of Assange will continue to cast a shadow over investigative journalism”, representing “an unprecedented attack on press freedom” calculated to “deter journalists and publishers from exercising rights that the First Amendment should be understood to protect”, he concluded.

Assange remains incarcerated at Belmarsh prison while his lawyers prepare a renewed bail application to be heard at Westminster Magistrates' Court on the morning of 6 January 2021. The US Department of Justice has called for Assange to remain at Belmarsh, as they intend to appeal the judge's decision.

*This article was amended on 7 January 2021 to make clear Trevor Timm is not a professor

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