Julian Assange: Criminal or Benefactor?

14 Apr

Julian Assange: Criminal or Benefactor?

 

I suppose it is of interest that Donald Trump and Hillary Clinton have found something to agree about—the criminal indictment of Julian Assange.  Trump is acutely vulnerable to the exposure of truth and Clinton blames her electoral defeat in 2016 partly on what WikiLeaks disclosed about her improper use of a government computer to send private emails. Such are the perverse ways of the deeply unjust.

 

The liberal media is not happy with this indictment, although it also wants to distance itself from justifications for Assange’s claims of journalistic privilege, viewing him as a lone wolf with rogue traits. There are solemn assessments evaluating the narrowly framed government indictment charging cyber-crime, that is, publishing illicitly obtained classified documents from a digital source, apparently an apolitical everyday occurrence for government employees. What is apparently at legal issue is deciding whether or not Assange should be protected by reference to freedom of expression or prosecuted as a cyber-criminal without reference to his motivation.

 

A few commentators have noted that the main reason to go after Assange is to discourage whistleblowing of the sort most prominently associated with the disclosures of Daniel Ellsberg and Edward Snowden. Here Assange is accused of conspiring with another heroic American whistleblower, Chelsea Manning, in obtaining the documents that featured 800 Guantanamo Bay ‘detainee assessment briefs’ and more than 400,000 cables and documents relating to the wars in Afghanistan and Iraq. A particularly damaging document was a video showing deliberate bombing of civilians in Iraq by American pilots, clear evidence of a serious war crime.

 

WikiLeaks, co-founded by Julian Assange in 2006, has been dedicated all along to the ideal of transparency in state/society relations as promoted by civil society initiatives. As such, it can be viewed as a service institution of robust democracy, a needed contemporary check on gross misuses of governmental secrecy. We know from a reading of the Pentagon Papers that what made publication so provocative was the degree to which the truths about the Vietnam War were being hidden from the American people through the misuse of classification protocols. There was little in the original twelve volumes of the Pentagon Papers that the Vietnamese ‘enemy’ did not know already. The inflammatory message of the Papers was how and why the war in Vietnam was going badly while the government was disseminating to the world a rosy picture of how well things were proceeding, which had the political effect of extending an unlawful war by years at the cost of tens of thousands American and Vietnamese lives. I remember hearing George Ball speak off the record a few days after he resigned as LBJ’s Under Secretary of State for Economic and Agricultural Affairs in the late 1960s about why he dissented from the Vietnam policies. He started his talk by saying “I only began to understand the Vietnam War when I stopped reading the cables from Saigon.” In other words, the patterns of deception were withinthe government as well as betweenthe government and the public.

 

We are up against a basic challenge posed by the digital age where the government operates as a citadel of surveillance, collecting meta-data on its own citizenry as well as on masses of foreigners, threatening dissent, privacy, and theessence of freedom itself. It was these concerns that led Snowden to do what he did a few years ago, and yet be pursued around the world as if a dangerous criminal, and not at first by the Trumpist right, but by the moderate center that was in political control of the government during the Obama presidency.

 

The republican idea of governance, that is, the founding principles of the American system of constitutional governance, relied on ‘checks and balances’ and ‘separation of powers’ to restrain excesses and abuses of power by the state. Such governance was reinforced by the first ten amendments to the U.S. Constitution that conferred an array of rights on the citizenry both as protection against an overreaching state and as protection against various manifestations of ‘the tyranny of the majority.’

 

The WikiLeaks role is especially important in the war/peace context as war-mongering governments tend to exaggerate, if not lie, to mobilize public support. This vital dimension of republicanism, designed to distinguish the American political undertaking from monarchies where war was often regarded as ‘the sport of kings,’ was entrusted to Congress, the legislative branch of government most directly connected with the people. The modern security state has moved away from restraints on war making as Congress has virtually abandoned its initially vital constitutional role of authorizing recourse to war. To revitalize this kind of republican democracy requires new instruments of transparency and validation of truth telling public servants. Otherwise, as in the Trump era, democratic constitutionalism can succumb to pre-fascist demagoguery.

 

A reinforcing observation in the American context arises from the corporatization of the media, as well as an appreciation of the unseemly recent closeness of the media to the intelligence and security governmental establishment. This has definitely weakened the independent and watchman role of journalism, especially TV, as part of the checks and balances framework in relation to the war/peace agenda, including the most trusted media outlets. Listeners of CNN, let alone FOX, know too well how debate on controversial foreign policy issues is almost exclusively entrusted to ex-generals,  admirals, CIA officials, and think tank hawks. It is rare to have the opportunity to hear the views of a civil society progressive or an articulate critic of global militarism, American style.

 

In contrast, WikiLeaks is independent of corporations, media, and governments, and has since its inception been devoted to the publication of materials incriminating governments and their private sector allies. We need to affirm WikiLeaks and whistleblowing as part of the legitimate architecture of constitutional democracy in the digital age. By criminalizing anti-war or human rights whistleblowing the political system is ratifying the suicide of substantive democracy.

 

Admittedly, this generalized endorsement of such transparency assumes that the government or the private sector have no legitimate secrets. I think there should be protection of legitimate state secrets wherein the criminality of unauthorized disclosures would require the government to sustain a burden of truth beyond a reasonable doubt that the material released was not in the public interest. This is bound to be a controversial line to draw conceptually and in practice. In quite different circumstances the release of the full Mueller Report tests whether transparency will lose out to those anti-democratic forces trying to hide, or at least obscure by redaction, the extent of wrongdoing by the Trump administration.

 

In the background should be the realization that whistleblowers rarely, if ever, act without a deeply felt sense that information crucial for the public to know about is being wrongfully withheld. Even without legal repercussions there are often high costs incurred by whistleblowers in relation to career and reputation. You are forever feared as the opposite of ‘a team player,’ so important for the morale and standard operating procedures of almost all bureaucracies, but especially those of government. I know this the personal experience of friends. Dan Ellsberg and Tony Russo, the Pentagon Papers whistleblowers were forever non-legally tainted by their brave acts of true patriotism. They realized at the time that they were taking big risks of prison and would in any event pay a high price though informal dynamics of exclusion, and yet acted out of their profound feelings of loyalty to America’s professed values. And it is true that Ellsberg, in particular, has been ‘compensated’ by being lionized in civil society as an offset to being permanently invalidated as a high-level civil servant.

 

What is mainly forgotten in relation to these whistleblowing incidents is the truly incriminating content of the disclosures. In each of these prominent instances the material released there was exposed criminal conduct by the government of a kind that threatens millions of lives and confirms the most shocking suspicions about government conduct in war zones or through malicious encroachments on public liberty.

 

It seems apt to recall President Franklin Roosevelt’s 1944 message on German war crimes directed at the German people in the midst of World War II: “Hitler is committing war crimes in the name of the German people. I ask every German and every man everywhere under German domination to show the world by his action that in his heart he does not share these insane criminal desires. Let him hide the victims, help them to get over their borders, and do what they can to save them from the Nazi hangman. I ask him also to keep watch and to record the evidence that will one day be used to convict the guilty.” (emphasis added) Is this not precisely what Chelsea Manning and Julian Assange have been doing?

 

As the U.S. Chief Prosecutor at Nuremberg, Justice Robert H. Jackson, reminded the world in his opening statement at the trials, if prosecution,  conviction, and punishment of the defendants is “to serve a useful purpose” it must in the future condemn similar lawlessness by others “including those who sit in here in judgment.” In effect, if the rule of law is to govern human behavior with respect to war crimes and crimes against humanity, the sort of ‘victors’ justice’ applied to the German and Japanese losers must in the future be replaced by ‘justice,’ that is, the application of law to all who violate it. Of course, this Nuremberg Promise has been repaeatedly broken in spirit and substance, and most defiantly by the Trump/Bolton attacks on the very existence of the International Criminal Court.

 

The UN Membership unanimously affirmed that the Nuremberg Judgment was a desirable development of international law in General Assembly Resolution 95(I). In addition, the International Law Commission, the most authoritative body entrusted with the codification and development of international law formulated

The Nuremberg Principles in 1946 to formalize the impact of the trials on international criminal law. Of particular relevance is final Principle VII: “Complicity in the commission of a crime against the peace, a war

crime, or a crime against humanity..is a crime under international law.” Fairly read, this proposition would suggest that the U.S. Government moves to prosecute Assange are themselves crimes, while the acts of Assange are commendable efforts to prevent international crimes from continuing.

 

Such reasoning should also be relevant to the British judicial response to the formal American request for extradition. Of course, extradition should be denied because ‘political crimes’ are by treaty arrangement not extraditable, and if there ever was a political crime it is this apparently failed attempt by Assange to hack the password of a government computer so as to hide the identity of the whistleblower, Chelsea Manning.

 

In the context of antiwar activism during the Vietnam War I made the argument that there existed a ‘Nuremberg Obligation’ that had moral, if not legal authority. In effect, the Nuremberg Obligation in light of the material discussed above means that every person has the rightand is subject to the dutyto contribute to the exposure of violations of international criminal law in war/peace and human rights contexts. Additionally, this moral right/duty could be reasonably construed as a legal obligation.

 

Julian Assange should be judged against this background. This applies not only to the underlying criminal charge, but to withdrawal of asylum status by the government of Ecuador that led to Assange’s unseemly arrest London and to the judicial treatment of the extradition request by the British judiciary.

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14 Responses to “Julian Assange: Criminal or Benefactor?”

  1. Frances April 14, 2019 at 4:50 pm #

    Julian Assange was arrested for publishing evidence of US war crimes, after the US government bribed the Ecuadorian government to break international law, the law the US is constantly ignoring and breaking.

  2. Gene Schulman April 14, 2019 at 10:35 pm #

    One of the more sane analyses of US and British Stalin-style kidnappings. Maybe Julian and Chelsea need a lawyer of Philippe Sands’ (East West Street) and Falk’s stature to join up on their defense team. Justice must be hiding somewhere in the dark recesses of our present day dystopia.

    • Richard Falk April 15, 2019 at 8:33 am #

      Gene: Especially Philippe for Assange would be excellent. Do you mind if I forward
      your suggestion to him. We are friends, although not often in contact. Greetings, Richard.

      • Gene Schulman April 15, 2019 at 11:20 pm #

        Richard, I couldn’t hope for a better outcome to my suggestion. By all means, if you can put such a team together with Sands, I’d support you 100%.

  3. Kata Fisher April 15, 2019 at 8:42 am #

    Dear professor Falk,

    If not for Australians – nothing would be relevant from history history past and present.

  4. Beau Oolayforos April 15, 2019 at 6:01 pm #

    Dear Professor Falk,

    As you infer, it was a supposedly moderate, centrist government that chased Snowden into Putin’s arms. But it took the machinations of the current White House to ‘capture’ Assange…awhile back, you wrote a piece on the Bolsonaro/Pompeo/Netenyahu confab…these things aren’t unrelated, right?

    • Richard Falk April 15, 2019 at 6:23 pm #

      Of course, you are right, and it was my preoccupation with the immediate situation
      that led me away from geopolitical proximate causes. Thanks for awakening. me. I will
      try to make amends in the near future. With my greetings, Richard

  5. Dr. Dayan Jayatilleka April 16, 2019 at 2:16 am #

    Assange and the democratic republic. A deeper as well as more fine-grained consideration than any other I’ve read. Vintage Richard Falk.

    • Richard Falk April 16, 2019 at 7:20 am #

      Thanks, Dayan. I hope you are doing fine in these turbulent times! Warmest greetings, Richard

  6. Kata Fisher April 16, 2019 at 10:20 pm #

    Professor Falk, I was recently reflecting that when Bush administration rush-recruited and trained unqualified and incompetent personnel to the armed forces – a much of those footages that were published has shoven just that. Not actual armed forces. Still, entire world saw what they saw. It’s just terrible what took place. I wonder if that was actual war-tactic what they have planned to achieve by letting extremely while and uncheck individuals into the armed forces. I just had reflection on that and about that. K.F.

  7. PrayThroughHistory May 16, 2019 at 9:14 am #

    Good thoughts! I cringe when I think of the daisy chain of lies and cover-ups leading to his detainment.
    He clearly denounced that he got info from a state actor. In all probability, it was Seth Rich who GAVE Assange the data. Then was killed, conveniently, on the streets of DC shortly after. The investigation of his death has been hampered by state actors, and a Private Investigator, to my recollection, has also been killed for challenging the state narrative.
    HRC 2016’s campaign cheated Bernie Sanders during the primary process allegedly. Rich, being a Sanders supporter, was rightfully incensed at the DNC’s heavy handed suppression of grassroots energy. Why does this matter to the Assange case?
    The whole premise of detaining him is based on “hacking”. But Assange did not hack, but merely published, to my knowledge. I finding it extremely chilling to those who don’t buy the corporate or establishment narratives meant to corral our lives. Bravo Julian! You are beyond a hero!

Trackbacks/Pingbacks

  1. The Moral Right to Govern | New Antarctica - April 14, 2019

    […] Perhaps the conclusion can  best  be left to  a quote from President Roosevelt in 1944 and  recently re-quoted by  the courageous and articulate Richard Falk: It seems apt to recall President Franklin Roosevelt’s 1944 message on German war crimes directed a… […]

  2. Julian Assange: Criminal or Benefactor? — Global Justice in the 21st Century – WeatherEye - April 14, 2019

    […] via Julian Assange: Criminal or Benefactor? — Global Justice in the 21st Century […]

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