Terrorist or Journalist?

This is an old conflict — the authorities wish to conceal as much as they can, not only what is necessary, while society and the media wish to uncover as much as possible. A conversation with Prof. Wojciech Sadurski:*

Since June 19, 2012, the founder of WikiLeaks, Julian Assange, has been holed up in the embassy of Ecuador in London, where he asked for asylum. He had been under house arrest in Great Britain since December 2010. He has, therefore, been deprived of liberty for two and a half years. His situation seems hopeless.

Ewa Siedlecka: Tom Flannagan, former adviser to the Canadian prime minister, said: “I think Assange should be assassinated, actually;” Peter King, the chairman of the Congressional Committee for National Security, demanded that WikiLeaks be declared a terrorist organization. Is Assange a prisoner of conscience or an anarchic terrorist for whom information is a weapon?

Prof. Wojciech Sadurski: He is not a terrorist. But I don’t see him as a prisoner of conscience; we should reserve this designation for people who struggle against nondemocratic regimes in the name of ideas and are persecuted for it. In the case of Assange, one can probably talk of persecution, yet rather for publishing materials which governments wish to conceal than for ideas. He’s a civil libertarian who insists on respect for the principle that the actions of the authorities should be transparent — a principle without which there can be no public oversight. There is no particular ideology behind this.

Ewa Siedlecka: Not entirely. His manifesto states that he wishes to uncover mechanisms of power, which have less and less to do with democracy and more and more with finance. Assange speaks of the power of the great corporations. This is a partly leftist ideology and a partly anarchic-libertarian one. It isn’t without reason that the Outraged and Occupy movements support him.

Prof. Sadurski: To me, however, he is a civil libertarian who wants to keep the authorities in check. He’s also a journalist of the new media who demands the right to publish documents that the authorities might wish to conceal.

In the jurisprudence of the United States Supreme Court — the country most hostile to Assange — we have precedents making it possible to recognize him as a journalist. At the very least, the famous Pentagon Papers case of 1971, in which Daniel Ellsberg carried away 7,000 pages of a secret report concerning the war in Vietnam. The report showed, among other things, that politicians knew America could not win the war and yet they sent people to their deaths and misled the public. Ellsberg turned the documents over to The New York Times. The Nixon administration attempted to block their publication and succeeded in obtaining a court order. The Supreme Court overturned it 15 days later, arguing that this was the best way of controlling power and its abuses. Assange is the modern Ellsberg, but he has access to technology with a worldwide reach. His publications cannot be blocked.

I am not saying he did everything well. For example, he failed to remove the names of people who could be exposed to persecution or even death after publication. He promised absolute discretion to informants — something that turned out to be illusory because security services are able to break safeguards. This can be held against him. But if it weren’t for the WikiLeaks publications, we would not know of the conditions in Guantanamo or about the abuse, torture and murder of innocent civilians by U.S. soldiers during the Iraq and Afghanistan wars. WikiLeaks wasn’t criticized as long as it disclosed the dark secrets of other countries, such as China’s nuclear policies.

Ewa Siedlecka: When WikiLeaks uncovered assassinations and disappearances involving the government of Kenya, it received the 2009 Amnesty International Media Award. When it began divulging the secrets of the West, it was pursued by Interpol, the CIA, the intelligence services of Sweden and Great Britain and the entire international law enforcement apparatus.

Prof. Sadurski: This determination indicates that Assange has touched upon very sensitive matters. Every center of power has something to hide and each has secrets to protect. The problem is that they don’t only wish to hide what’s necessary. This is an old conflict — the authorities wish to conceal as much as they can, not only what is necessary, while society and the media wish to uncover as much as possible.

Ewa Siedlecka: In many countries, including the U.S., there are laws protecting whistle-blowers — people who, exposing themselves to personal risk, uncover abuses. It is said that Edward Snowden could take advantage of American regulations concerning whistle-blowers. He raised the alarm about abuses at the National Security Agency (NSA), the organization for which he worked. Is Assange also a whistle-blower?

Prof. Sadurski: A whistle-blower or a journalist? The latter, I think. He is entitled to the same protection given to journalists. From the legal point of view, this is a great problem for the Americans. They are sending signals that they could demand Assange’s extradition on the basis of the Espionage Act. But in American legal tradition and precedents, the Espionage Act can only be used against American citizens who have breached national security, or against foreign spies acting against the United States. But Assange is neither an American citizen, nor are there any reasons to think he is working for some intelligence service. He has also never been active on U.S. soil, but only in virtual space — on the Internet. Therefore, there are no grounds — or precedents — to charge him under this act.

Perhaps he will be charged with criminal conspiracy with Bradley Manning [a U.S. Army private who turned over half a million Iraq and Afghanistan battle reports and thousands of diplomatic dispatches to WikiLeaks]. But in such a case, it will have to be proven that he not only took delivery of those documents from Manning, but also that he encouraged the latter to steal them.

Ewa Siedlecka: But WikiLeaks, on its site, incites web surfers to send in documents and even created specially ciphered channels so that intelligence services could not track such people.

Prof. Sadurski: If incitement to send and a promise to publish documents are to be a crime, then each and every journalist is a potential criminal. This is the crux of the relationship between a journalist and his source — the journalist receives materials in exchange for a promise of publication and protection for the source.

For this reason, in order to legally assess Assange’s actions, it is crucial to settle whether a medium such as WikiLeaks constitutes journalism or not. Press law is adapted to the realities of the classic media of the 20th century. But we live in a world of blogs and portals where everyone can be at once author and reader. If we wish to make use of 20th century definitions — and in my view we should, if only to protect the right to information — we should recognize WikiLeaks as being part of the press.

Ewa Siedlecka: WikiLeaks claims that it has created a new type of journalism — scientific journalism. It publishes documents and their analysis so that people can make up their own minds.

Prof. Sadurski: For the authorities, the disclosure of sources, that is facts, is far more dangerous than even the most insightful analysis. The obstinacy with which the authorities are attacking Assange is telling. When Hillary Clinton says that it “is an attack not only on the United States but also the international community,” it is pure hysteria. Before he became president, Obama praised bloggers and said that acts of leaking are manifestations of civil courage. Now he fights against the blogger Assange.

Ewa Siedlecka: WikiLeaks and Assange have also been attacked by financial and business institutions whose informal and undemocratic influence on the authorities WikiLeaks has pointed out. Visa, MasterCard, Western Union and PayPal suspended payments to WikiLeaks. This is painful; WikiLeaks is financed by voluntary contributions from Internet surfers, i.e., in the most “civic” and independent manner.

Prof. Sadurski: Facebook has also blocked him.

Ewa Siedlecka: … criticized by Assange for having compiled the world’s largest database containing profiled personal information accessible by the secret services. Assange revealed information about the PRISM system long before Snowden.

Prof. Sadurski: These companies don’t want to fall out with the powers that be because it isn’t in their interest. Let’s recall Google’s stance with regard to China’s zealous censorship [Google’s Chinese division agreed to block certain search terms and rebelled only when the Chinese secret services began hacking into their system]. And Yahoo turned blogger Shi Tao over to the Chinese authorities [he had revealed how the Chinese authorities had prepared for the pacification of the Tiananmen massacre commemorations]. It is sheer opportunism: Ideas don’t count, only business.

Ewa Siedlecka: This means that Assange was right when he claimed that collusion between political and financial power is a threat to democracy. And now he is facing charges of rape [Assange is accused of having unprotected sex with a woman and of having sexually abused another one].

Prof. Sadurski: I am unable to assess to what degree this is a pretext. This is reminiscent of Al Capone’s trial for tax evasion. On the other hand, I have read opinions from Norwegian and Swedish feminists who are outraged by the ridiculing of these allegations.

Ewa Siedlecka: But to use an international arrest warrant to pursue a man for unprotected sex?! With such determination that Great Britain even considered a special forces assault on the Ecuadorean embassy in which Assange has found refuge?

Prof: Sadurski: This can indeed give cause for surprise. But the authorities protect their secrets. They have the right to do so; we can’t expect everything to be disclosed or assume that, among the documents revealed by WikiLeaks, there aren’t any that shouldn’t, for reasons of national security, be made public.

Ewa Siedlecka: On the other hand, the disclosure of a secret document which provides proof that the authorities have broken the law should not be seen as a crime.

Prof. Sadurski: Of course. For this reason, in market theory — where the authorities strive toward greater secrecy, while the media and whistle-blowers try to wrest information from them — the public interest is the ultimate criterion determining the legality of the actions taken by either side. In this manner, a certain balance, even if imperfect, in such matters can be maintained.

Ewa Siedlecka: It seems like this time the authorities went a bit too far in this free market game. It appears that if Assange does not want to land in jail, he will be endlessly imprisoned in the Ecuadorean embassy.

Prof. Sadurski: It is for this reason that it is crucial to recognize Assange as a journalist. Then the repressions he is facing will constitute a violation of the controlling role of the media.

Ewa Siedlecka: Why hasn’t Assange been given protection by Australia, his home country?

Prof. Sadurski: This is a manifestation of opportunism and of intergovernmental solidarity for the protection of an ill-conceived raison d’état. Australia has not met its obligations with regard to its own citizen. It hasn’t moved a finger in his case.

Ewa Siedlecka: We have heard of raison d’état in the European Union during work on the [Anti-Counterfeiting Trade] Agreement. It would seem “unthinking people” have no means to assess what is right.

Prof. Sadurski: ACTA is a good example to show that it is increasingly difficult to assess and protect raison d’état in the age of the Internet, globalization and information, when available information can be published immediately all over the world. It is not without reason that WikiLeaks’ servers were placed, among other locations, in Belgium and Sweden, where the law provides strong protections for the secrecy of communications and protects journalistic sources.

Ewa Siedlecka: In the Internet age, raison d’état is an increasingly weak argument in the face of demands for greater transparency — simply because secrets are difficult to keep. Have the right to be informed, the right to access information and the freedom to share it not become one of the most important of civic rights in the IT civilization — comparable to the universal right to vote?

Prof. Sadurski: I agree entirely: Without full information and the unfettered circulation of information and opinions, democracy is illusory, even if free elections are held with a multitude of competing parties. Most important is what goes on in the mind of the voter. As early as the 1940s, the American philosopher Alexander Meiklejohn wrote that unlimited freedom to information is justified by the fact that everyone is entitled to know about all opinions expressed in our society, so as to be able to choose in an entirely rational manner. We can’t turn over to anyone the right to select “appropriate” information — as we cede the right to representatives to vote laws in our name — because everyone has to know who is competing for his vote and what his program is. Information methods and techniques have changed since that day, but the principle itself has not.

*Translator’s note: Wojciech Sadurski holds the Challis Chair of Jurisprudence at the University of Sydney; he is a professor at the European Center of the University of Warsaw and an expert on freedom of speech with the Helsinki Foundation for Human Rights.