The most important press freedom case of the 21st Century is about to resume in London’s Old Bailey this coming Monday.
After years of background noise swirling around the founder of WikiLeaks, Julian Assange, it is sometimes hard to focus on exactly how blindingly simple the issue at the heart of this hearing remains.
It is this: should the Trump administration be able extradite Julian Assange to the US and put him on trial under the 1917 Espionage Act for revealing material about the Afghan and Iraq wars, Guantanamo Bay prison, and diplomatic communications between states?
The Trump government’s justification for this unprecedented use of the Espionage Act is that in the words of Secretary of State and former boss of the CIA, Mike Pompeo, WikiLeaks acted as a ‘non-state hostile intelligence service’.
This designation has huge consequences. It allows the US to extend the territorial reach of its punitive legislation while simultaneous refusing its targets the right to free speech under the provisions of the First Amendment to the US Constitution.
But a moment’s thought reveals that Pompeo’s categorisation of WikiLeaks as a ‘non state intelligence service’ is either a nonsense or an unintended compliment.
The whole point of espionage is that it is carried out by one state against others. It is intended to find out secrets, keep them secret except to the state doing the spying, and thereby give that state a political, economic, or military advantage over its rivals.
What (some) journalism does is to openly publish material that the state (or others) would prefer to keep secret so that it can be known and evaluated by an informed public debate. This journalism acts on behalf of the public, not a rival state. And it does so openly, not in secret.
Pompeo’s use of the words ‘non-state’ admits half this case and, in doing so, undermines the other half of the case. A non-state actor intent on publication cannot be spying in any normal sense of the word.
Using a century-old espionage act in such circumstances is simply an attempt to criminalise journalism.
And this is indeed, in the minds of the Trump administration, the real crime that WikiLeaks has committed. It has placed information in the public domain. This is what angers them, this is what drives their multi-million-pound pursuit of Assange.
But for this persecution to reach its zenith Assange has first to be extradited to the US and put on trial in the Eastern District Court of Virginia where the state has never lost an espionage case, not least because jurors are chosen from a population of whom 80 percent work at the nearby CIA and NSA headquarters or the Pentagon.
The British Tory government has been all too willing to expedite the US extradition request. Former Home Secretary Savid Javid signed off on it, as he was required to do, without a moment’s hesitation. His viciously right-wing successor, Priti Patel, could be a Trump family adoptee.
But beyond the global politics at stake, Assange’s treatment by the justice system betrays a political class that is happy for him to disappear into the deepest of black holes.
Leaving aside the fact that he should not be in prison while he awaits his hearing, let alone in Belmarsh high security prison, his access to his lawyers has been restricted to the point which makes a full and fair trial impossible. One moment in the opening week of the hearing in February provided a stark demonstration of this situation.
Assange’s legal team requested that he be brought out of the glass cubicle at the rear of the court room so that he could sit with his lawyers and communicate effectively with them. The judge prevaricated. Then the prosecution’s QC intervened to remind the judge that this was a decision well within her powers to take and that the prosecution had no issue with Assange sitting with his defence team as this was normal practice. The judge still refused on the basis that she had to consult with the private security company that guards the court.
Assange was never allowed to sit with his legal team. He remained incarcerated at the back of the court, as much a participant in his own trial as, he said, ‘a spectator at Wimbledon’.
It is hard to overestimate what is at stake in this case. There is of course plenty of bad journalism out there. Plenty of churnalism that simply regurgitates government and corporate press releases and gossip from the Westminster bubble blowers. But for those journalists actually trying to reveal information that the rich and powerful would like to keep hidden, indeed for any whistle-blower that wants to reveal dangers to the public, Assange’s extradition would be a devastating blow.
And if it’s a devastating blow to journalists and whistle-blowers it’s a devastating blow to us all. To give only the most recent example: how much less would we have known about the true numbers of deaths in the Covid crisis, the disaster in our care homes, the standing disgrace of Do Not Resuscitate notices issued to the vulnerable, or the failure of track and trace, let alone Dominic Cumming’s tour of Britain, if whistle-blowers and journalists had not told us the facts that the government wanted hidden.
The years spent claiming asylum against extradition to the US in the London embassy of Ecuador, the year spent awaiting this hearing in Belmarsh, make it seem as if the Assange case must be reaching its conclusion. But it is not. In many ways it is just beginning.
It is a peculiarity of the British legal system that extradition cases are first heard in Magistrates Courts. These are no jury lesser courts more familiar with motoring offences than freedom of speech cases with global political ramifications.
The judge in the Assange case is clearly terrified of making any, even procedural, decision that could later be criticised. She knows that any decision, whether to extradite Assange or not, will be appealed to a higher court by the losing side.
So this titantic struggle will not be over until this hearing is over and a subsequent appeal is heard.
The tide has begun to turn over the Assange case. A once supportive paper turned hostile, the Guardian, is now supportive again, running editorials opposing extradition. So is the Telegraph, and even the Daily Mail and the Sun run neutral reports. Every major NGO, from Amnesty to Human Rights Watch and Pen, are opposed to extradition. But opinion needs to be turned into power. For that to happen all those who wish to see the punitive power of the American Leviathan contained, all those that want to see freedom of speech and freedom of the press preserved have a single, urgent task. That is to create a wave of public mobilisation that can force the Tory government to exercise a power that it does in fact possess: to refuse the extradition of Julian Assange to the US.