[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. succeeds in keeping Assange imprisoned for years to come]



 Glenn Greenwald 
 July 21, 2018
The Intercept

	* [https://portside.org/node/17745/printable/print]

 _ 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. succeeds
in keeping Assange imprisoned for years to come _ 

 , Niklas Halle'n/AFP/Getty Images 


ECUADOR’S PRESIDENT Lenin Moreno traveled to London on Friday
for the ostensible purpose of speaking at the 2018 Global
Disabilities Summit
[http://www.internationaldisabilityalliance.org/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
[https://www.theguardian.com/world/2018/may/16/julian-assange-ecuador-spain-catalan-independence-meeting-separatists] Assange’s denunciation
of human rights abuses perpetrated by Spain’s central
government against protesters marching for Catalonian independence.
Almost three months ago, Ecuador blocked Assange
[https://www.washingtonpost.com/world/ecuadoran-embassy-in-london-cuts-off-julian-assanges-internet/2018/03/28/10322e9c-32ae-11e8-b6bd-0084a1666987_story.html?utm_term=.60d667f9234b] from
accessing the internet, and Assange has not been able to communicate
with the outside world ever since. The primary factor
[https://www.thelocal.es/20171217/assange-told-not-to-interfere-in-catalonia-ecuador-president] 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 U.K.
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
[https://www.rt.com/news/433783-wikileaks-assange-ecuador-uk/] 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
[https://theintercept.com/2018/05/16/ecuadors-ex-president-rafael-correa-denounces-treatment-of-julian-assange-as-torture/] in
an interview in May, Moreno’s government has returned Ecuador to a
highly “subservient” and “submissive” posture toward western

It is thus highly unlikely that Moreno — who has shown himself
willing to submit to threats and coercion from the U.K., 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
[https://www.telegraph.co.uk/news/worldnews/wikileaks/8579350/WikiLeaks-Julian-Assanges-excessive-and-dehumanising-house-arrest.html] 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
[https://www.sentencingcouncil.org.uk/offences/item/bail-failure-to-surrender/] of three
months and a fine, though it is possible that the time Assange has
already spent in prison in the U.K. could be counted against that
sentence. In 2010, Assange was imprisoned in Wandsworth Prison
[https://www.nytimes.com/2010/12/17/world/europe/17assange.html], 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 U.K. 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 U.K. was so protracted,
intentional and malicious that it rose beyond mere “failure to
surrender” to “contempt of court,” which carries a prison term
[https://www.legislation.gov.uk/ukpga/1981/49/crossheading/penalties-for-contempt-and-kindred-offences] 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

Currently, that is the only known criminal proceeding Assange faces.
In May 2017, Swedish prosecutors announced they were closing
[https://theintercept.com/2017/05/19/sweden-withdraws-arrest-warrant-for-julian-assange-but-he-still-faces-serious-legal-jeopardy/] their
investigation into the sexual assault allegations due to the futility
of proceeding in light of Assange’s asylum and the time that has

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
[https://www.washingtonpost.com/world/national-security/julian-assange-unlikely-to-face-us-charges-over-publishing-classified-documents/2013/11/25/dd27decc-55f1-11e3-8304-caf30787c0a9_story.html?utm_term=.710506f98e0c] 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 creating 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
[https://www.washingtonpost.com/opinions/why-did-obama-dawdle-on-russias-hacking/2017/01/12/75f878a0-d90c-11e6-9a36-1d296534b31e_story.html?utm_term=.05839fdc78c4] 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
[https://www.law.cornell.edu/uscode/text/18/798], 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
[https://theintercept.com/2017/04/14/trumps-cia-director-pompeo-targeting-wikileaks-explicitly-threatens-speech-and-press-freedoms/] 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 longtime 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

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.”

Click here to view video [https://youtu.be/0067wS26n_E]

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
[https://www.reuters.com/article/us-usa-trump-sessions-leaks/trump-administration-goes-on-attack-against-leakers-journalists-idUSKBN1AK1UR] 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
[http://www.washingtonpost.com/wp-dyn/content/article/2010/12/11/AR2010121102564.html] 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_
[https://theintercept.com/2018/04/20/the-dncs-lawsuit-against-wikileaks-poses-a-serious-threat-to-press-freedom/] —
a serious, obvious threat to press freedom — and few objected.

And it was Democratic senators such as Dianne Feinstein
[https://www.wsj.com/articles/SB10001424052748703989004575653280626335258] 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
[https://www.salon.com/2011/04/27/wikileaks_26/] by the Obama DOJ
[https://www.theguardian.com/media/2011/may/11/us-opens-wikileaks-grand-jury-hearing] 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

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
[https://www.theguardian.com/media/2016/feb/04/julian-assange-wikileaks-arrest-friday-un-investigation] 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.

_Glenn Greenwald is one of three co-founding editors of The
Intercept. He is a journalist, constitutional lawyer, and author of
four New York Times best-selling books on politics and law. His most
recent book, “No Place to Hide,” is about the U.S. surveillance
state and his experiences reporting on the Snowden documents around
the world. Prior to co-founding The Intercept, Glenn’s column was
featured in the Guardian and Salon. He was the debut winner, along
with Amy Goodman, of the Park Center I.F. Stone Award for Independent
Journalism in 2008, and also received the 2010 Online Journalism Award
for his investigative work on the abusive detention conditions of
Chelsea Manning. For his 2013 NSA reporting, he received the George
Polk Award for National Security Reporting; the Gannett Foundation
Award for investigative journalism and the Gannett Foundation Watchdog
Journalism Award; the Esso Premio for Excellence in Investigative
Reporting in Brazil (he was the first non-Brazilian to win), and the
Electronic Frontier Foundation’s Pioneer Award. Along with Laura
Poitras, Foreign Policy magazine named him one of the top 100 Global
Thinkers for 2013. The NSA reporting he led for the Guardian was
awarded the 2014 Pulitzer Prize for public service._

_The Intercept depends on the support of readers like you to help keep
our nonprofit newsroom strong and independent. Join The Intercept 

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