Hans Thoolen on Human Rights Defenders

….Although the Swedish investigation has now been dropped, the threat of arrest persists. The London police have indicated they will arrest Assange for failure to appear in a London Magistrates Court if he leaves the embassy. Britain would then likely extradite Assange to the United States for possible prosecution.

Attorney General Jeff Sessions declared in April that arresting Assange is a “priority” for the Department of Justice, even though the New York Times indicated that federal prosecutors are “skeptical that they could pursue the most serious charges, of espionage.” The Justice Department is reportedly considering charging Assange with theft of government documents. A decision to prosecute Assange would mark a 180-degree change of direction for President Trump. During the 2016 presidential campaign Trump declared, “I love WikiLeaks” after it published confidential emails from the Democratic National Committee that some U.S. intelligence agencies claim were obtained by Russian hackers (although Assange denies getting the material from Russia).

In March, WikiLeaks published CIA documents containing software and methods to hack into electronics. This was the beginning of WikiLeaks’ “Vault 7” series, which, Assange wrote in an op-ed in The Washington Post, contained “evidence of remarkable CIA incompetence and other shortcomings.” The publication included “the agency’s creation, at a cost of billions of taxpayer dollars, of an entire arsenal of cyber viruses and hacking programs – over which it promptly lost control and then tried to cover up the loss,” Assange added. “These publications also revealed the CIA’s efforts to infect the public’s ubiquitous consumer products and automobiles with computer viruses.”

CIA Director Michael Pompeo called WikiLeaks “a non-state hostile intelligence service often abetted by state actors like Russia.” Pompeo said, “We have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” Pompeo declared, “Julian Assange has no First Amendment privileges. He is not a U.S. citizen.” But, the Supreme Court has long held that the Constitution applies to non-Americans, not just U.S. citizens. And, when the Obama Justice Department considered prosecuting WikiLeaks, U.S. officials were unable to distinguish what Wikileaks did from what the Times and Guardian did since they also published documents that Manning leaked. WikiLeaks is not suspected of hacking or stealing them.

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As Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, wrote at Just Security, Comey was drawing the line “not between leaking classified information and publishing it, but between publishing it for ‘good’ reasons and publishing it for ‘bad’ ones.” And, “[a]llowing the FBI to determine who is allowed to publish leaked information based on the bureau’s assessment of their patriotism would cross a constitutional Rubicon,” Goitein wrote.

Other advocates for civil liberties also defended WikiLeaks as a news organization protected by the First Amendment. “The U.S. government has never shown that Assange did anything but publish leaked information,” Kenneth Roth, executive director of Human Rights Watch, told the Times. Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project, stated in an interview with the Times, “Never in the history of this country has a publisher been prosecuted for presenting truthful information to the public.”

Assange’s Detention Called Unlawful [see also: https://humanrightsdefenders.blog/2016/02/07/on-assange-there-is-more-to-the-decision-than-knee-jerk-reactions/]

In 2016, following a 16-month investigation, the United Nations Working Group on Arbitrary Detention concluded that Assange’s detention by Britain and Sweden was unlawful. It stated, “[A] deprivation of liberty exists where someone is forced to choose between either confinement, or forfeiting a fundamental right – such as asylum – and thereby facing a well-founded risk of persecution.”….Thus, the U.N. group concluded that Assange’s continued stay in the embassy “has become a state of an arbitrary deprivation of liberty,” in violation of the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights

….Even some mainstream news organizations that have been critical of WikiLeaks for releasing classified U.S. information have objected to the idea of criminal prosecution. A Washington Post editorial in 2010 entitled “Don’t Charge Wikileaks” said: “Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered.”

In the U.S. government’s continued legal pursuit of WikiLeaks, there is much more at stake than what happens to Julian Assange. There are principles of press freedoms and the public’s right to know. By publishing documents revealing evidence of U.S. war crimes, emails relevant to the U.S. presidential election and proof of CIA malfeasance, Assange did what journalists are supposed to do – inform the people about newsworthy topics and reveal abuses that powerful forces want concealed. Assange also has the right to freedom of expression under both U.S. and international law, which would further argue for Great Britain dropping the failure-to-appear warrant and allowing Assange to freely leave the embassy and to finally resume his life.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website at http://marjoriecohn.com/ and follow her on Twitter https://twitter.com/marjoriecohn.