July
21 2018, 5:17 p.m.
Photo: Niklas Halle'n/AFP/Getty
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ECUADOR’S PRESIDENT Lenin Moreno traveled to London on Friday
for the ostensible purpose of speaking at the 2018 Global Disabilities Summit (Moreno has been using a
wheelchair since being shot in a 1998 robbery attempt). The concealed,
actual purpose of the President’s trip is to meet with British officials to
finalize an agreement under which Ecuador will withdraw its asylum protection
of Julian Assange, in place since 2012, eject him from the Ecuadorian Embassy
in London, and then hand over the WikiLeaks founder to
British authorities.
Moreno’s itinerary also notably
includes a trip to Madrid, where he will meet with Spanish officials still seething over Assange’s denunciation of human rights
abuses perpetrated by Spain’s central government against protesters
marching for Catalonia independence. Almost three months ago,
Ecuador blocked Assange from accessing the internet, and Assange has not
been able to communicate with the outside world ever since. The primary factor in Ecuador’s decision to silence him was Spanish
anger over Assange’s tweets about Catalonia.
Presidential decree signed on July 17
by Ecuadorian President Lenin Moreno, outlining his trip to London and Madrid
A source close to the Ecuadorian
Foreign Ministry and the President’s office, unauthorized to speak publicly,
has confirmed to the Intercept that Moreno is close to finalizing, if he has
not already finalized, an agreement to hand over Assange to the UK within the
next several weeks. The withdrawal of asylum and physical ejection of Assange
could come as early as this week. On Friday, RT reported that Ecuador was preparing to enter into such an
agreement.
The consequences of such an agreement
depend in part on the concessions Ecuador extracts in exchange for withdrawing
Assange’s asylum. But as former Ecuadorian President Rafael Correa told the Intercept in an interview in May, Moreno’s government has
returned Ecuador to a highly “subservient” and “submissive” posture toward
western governments.
It is thus highly unlikely that
Moreno – who has shown himself willing to submit to threats and coercion from
the UK, Spain and the U.S. – will obtain a guarantee that the U.K. not
extradite Assange to the U.S., where top Trump officials have vowed to prosecute
Assange and destroy WikiLeaks.
The central oddity of Assange’s case
– that he has been effectively imprisoned
for eight years despite
never having been charged with, let alone convicted of, any crime – is
virtually certain to be prolonged once Ecuador hands him over to the U.K. Even
under the best-case scenario, it appears highly likely that Assange will continue
to be imprisoned by British authorities.
The only known criminal proceeding
Assange currently faces is a pending 2012 arrest warrant for “failure to
surrender” – basically a minor bail violation that arose when he obtained
asylum from Ecuador rather than complying with bail conditions by returning to
court for a hearing on his attempt to resist extradition to Sweden.
That offense carries a prison term of three months and a fine, though it
is possible that the time Assange has already spent in prison in the UK could
be counted against that sentence. In 2010, Assange was imprisoned in Wandsworth Prison, kept in isolation, for 10 days until he was released
on bail; he was then under house arrest for 550 days at the home of a
supporter.
Assange’s lawyer, Jen Robinson, told
the Intercept that he would argue that all of that prison time already served
should count toward (and thus completely fulfill) any prison term imposed on
the “failure to surrender” charge, though British prosecutors would almost
certainly contest that claim. Assange would also argue that he had a
reasonable, valid basis for seeking asylum rather than submitting to UK
authorities: namely, well-grounded fear that he would be extradited to the
U.S. for prosecution for the act of publishing documents.
Beyond that minor charge, British
prosecutors could argue that Assange’s evading of legal process in the UK was
so protracted, intentional and malicious that it rose beyond mere “failure to
surrender” to “contempt of court,” which carries a prison term of up to two years. Just on those charges alone,
then, Assange faces a high risk of detention for another year or even
longer in a British prison.
Currently, that is the only known
criminal proceeding Assange faces. In May, 2017, Swedish prosecutors announced they were closing their investigation into the sexual
assault allegations due to the futility of proceeding in light of
Assange’s asylum and the time that has elapsed.
THE FAR MORE IMPORTANT question that will determine Assange’s future is
what the U.S. Government intends to do. The Obama administration was eager to
prosecute Assange and WikiLeaks for publishing hundreds of thousands of
classified documents, but ultimately concluded that there was no way to do so without either
also prosecuting newspapers such as the New York Times and the Guardian which
published the same documents, or create precedents that would enable the
criminal prosecution of media outlets in the future.
Indeed, it is technically a crime
under U.S. law for anyone – including a media outlet – to publish certain types
of classified information. Under U.S. law, for instance, it was a
felony for the Washington Post’s David Ignatius to report on the contents of telephone calls, intercepted by the NSA,
between then National Security Adviser nominee Michael Flynn and Russian
Ambassador Sergey Kislyak, even though such reporting was clearly in the
public interest since it proved Flynn lied when he denied such contacts.
That the Washington Post and Ignatius
– and not merely their sources – violated U.S. criminal law
by revealing the contents of intercepted communications with a Russian
official is made clear by the text of 18 § 798 of the U.S. Code, which provides (emphasis added):
“Whoever knowingly and willfully
communicates … or otherwise makes available to an unauthorized
person, or publishes … any classified information … obtained
by the processes of communication intelligence from the communications of any
foreign government … shall be fined under this title or imprisoned not more
than ten years, or both.”
But the U.S. Justice Department has
never wanted to indict and prosecute anyone for the crime of publishing such
material, contenting themselves instead to prosecuting the government sources
who leak it. Their reluctance has been due to two reasons: first, media outlets
would argue that any attempts to criminalize the mere publication of classified
or stolen documents is barred by the press freedom guarantee of the First
Amendment, a proposition the DOJ has never wanted to test; second, no
DOJ has wanted as part of its legacy the creation of a precedent that
allows the U.S. Government to criminally prosecute journalists and media
outlets for reporting classified documents.
But the Trump administration has made
clear that they have no such concerns. Quite the contrary: last April, Trump’s
then-CIA Director Mike Pompeo, now his Secretary of State, delivered a deranged, rambling,
highly threatening broadside against WikiLeaks. Without citing any evidence,
Pompeo decreed that WikiLeaks is “a non-state hostile intelligence service
often abetted by state actors like Russia,” and thus declared: “we have to
recognize that we can no longer allow Assange and his colleagues the
latitude to use free speech values against us.”
The long-time right-wing Congressman,
now one of Trump’s most loyal and favored cabinet officials, also explicitly
rejected any First Amendment concerns about prosecuting Assange,
arguing that while WikiLeaks “pretended that America’s First Amendment
freedoms shield them from justice . . . they may have believed that, but they
are wrong.”
Pompeo then issued
this bold threat: “To give them the space to crush us with
misappropriated secrets is a perversion of what our great Constitution stands
for. It ends now.”
Trump’s Attorney General Jeff
Sessions has similarly vowed not only to continue and expand the Obama
DOJ’s crackdown on sources, but also to consider the prosecution of media
outlets that publish
classified information. It would be incredibly shrewd for Sessions to lay
the foundation for doing so by prosecuting Assange first, safe in the knowledge
that journalists themselves – consumed with hatred for Assange due to personal
reasons, professional jealousies, and anger over the role they believed he
played in 2016 in helping Hillary Clinton lose – would unite behind the
Trump DOJ and in support of its efforts to imprison Assange.
During the Obama years, it was a
mainstream view among media outlets that prosecuting Assange would be a serious
danger to press freedoms. Even the Washington Post Editorial Page, which
vehemently condemned WikiLeaks, warned in 2010 that any such prosecution would “criminalize the
exchange of information and put at risk” all media outlets. When Pompeo and
Sessions last year issued their threats to prosecute Assange, former Obama DOJ
spokesperson Matthew Miller insisted that no such prosecution could ever
succeed:
For years, the Obama DOJ searched for
evidence that Assange actively assisted Chelsea Manning or other sources in the
hacking or stealing of documents – in order to prosecute them for more
than merely publishing documents – and found no such evidence. But even that
theory – that a publisher of classified documents can be prosecuted for
assisting a source – would be a severe threat to press freedom, since
journalists frequently work in some form of collaboration with
sources who remove or disclose classified information. And nobody has ever
presented evidence that WikiLeaks conspired with whomever hacked the DNC and
Podesta email inboxes to effectuate that hacking.
But there seems little question that,
as Sessions surely knows, large numbers of U.S. journalists – along with many,
perhaps most, Democrats – would actually support the Trump DOJ in prosecuting
Assange for publishing documents. After all, the DNC sued WikiLeaks in April for
publishing documents –
a serious, obvious threat to press freedom – and few objected.
And it was Democratic Senators such as Dianne Feinstein who, during the Obama years, were urging the
prosecution of WikiLeaks, with the support of numerous GOP Senators. There is no doubt that, after 2016, support among
both journalists and Democrats for imprisoning Assange for publishing documents
would be higher than ever.
IF THE U.S. DID INDICT Assange for alleged crimes relating to the
publication of documents, or if they have already obtained a sealed indictment,
and then uses that indictment to request that the U.K. extradite him to
the U.S. to stand trial, that alone would ensure that Assange remains in
prison in the U.K. for years to come.
Assange would, of course, resist any
such extradition on the ground that publishing documents is not a cognizable
crime and that the U.S is seeking his extradition for political charges that,
by treaty, cannot serve as the basis for extradition. But it would take at
least a year, and probably closer to three years, for U.K. courts to
decide these extradition questions. And while all of that lingers, Assange would
almost certainly be in prison, given that it is inconceivable that a British
judge would release Assange on bail given what happened the last time he was
released.
All of this means that it is highly
likely that Assange – under his best-case scenario – faces at
least another year in prison, and will end up having spent a decade in
prison despite never having been charged with, let alone convicted of, any
crime. He has essentially been punished – imprisoned – by process.
And while it is often argued that
Assange has only himself to blame, it is beyond doubt, given the Grand Jury convened by the Obama DOJ and now the threats of Pompeo and Sessions, that
the fear that led Assange to seek asylum in the first place – being
extradited to the U.S. and politically persecuted for political crimes – was
well-grounded.
Assange, his lawyers and his
supporters always said that he would immediately board a plane to Stockholm if
he were guaranteed that doing so would not be used to extradite him to the
U.S., and for years offered to be questioned by Swedish investigators inside
the embassy in London, something Swedish prosecutors only did years
later. Citing those facts, a United Nations panel ruled in 2016 that the actions of the U.K. government
constituted “arbitrary detention” and a violation of Assange’s fundamental
human rights.
But if, as seems quite likely,
the Trump administration finally announces that it intends to prosecute
Assange for publishing classified U.S. Government documents, we will be faced
with the bizarre spectacle of U.S. journalists – who have spent the last two
years melodramatically expressing grave concern over press freedom due to
insulting tweets from Donald Trump about Wolf Blitzer and Chuck Todd or his
mean treatment of Jim Acosta – possibly cheering for a precedent that would be
the gravest press freedom threat in decades.
That precedent would be one that
could easily be used to put them in a prison cell alongside Assange for the new
“crime” of publishing any documents that the U.S. Government has decreed should
not be published. When it comes to press freedom threats, such an indictment
would not be in the same universe as name-calling tweets by Trump directed at
various TV personalities.
When it came to denouncing due
process denials and the use of torture at Guantanamo, it was not difficult for
journalists to set aside their personal dislike for Al Qaeda sympathizers to
denounce the dangers of those human rights and legal abuses. When it comes to
free speech assaults, journalists are able to set aside their personal contempt
for a person’s opinions to oppose the precedent that the government can punish
people for expressing noxious ideas.
It should not be this difficult for
journalists to set aside their personal emotions about Assange to recognize the
profound dangers – not just to press freedoms but to themselves – if the U.S.
Government succeeds in keeping Assange imprisoned for years to come, all due to
its attempts to prosecute him for publishing classified or stolen documents.
That seems the highly likely scenario once Ecuador hands over Assange to the
U.K.
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