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
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.
WikiLeaks and the Pentagon Papers
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
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 within the government as well as between the government and the public.
Secrecy, governance and democracy
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 the essence 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
The
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.
The closeness of media to the security state
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
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
This is bound to be a controversial line to draw conceptually and in practice. In different
Even without legal
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
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.
The importance of what has been revealed
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
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.”
Is this not precisely what Chelsea Manning and Julian Assange have been doing
Nuremberg and international law
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
Of course, this Nuremberg Promise has been repeatedly 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 right and is subject to the duty to 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 also to the
Credit
The photo on top via Paradigma
TFF also recommends
Richard Rubenstein
Julian and Martin: Reflections on the arrest of Assange
Joe Emersberger
Assange’s ‘conspiracy’ to expose war crimes has already been punished
John Pilger
The Assange arrest is a warning from history
David Swanson, TFF Associate
Ten reasons Assange should walk free
