At the outset we are confronted with a dilemma of sorts: given that our
primary focus is on the legal case against Assange, how much weightage
should we give to Assange’s and Wikileaks’s ongoing political battle
with the US administration, the outermost layer so to speak? There are
some who argue that the two are not connected, and that Assange’s
persecution derives exclusively from his alleged sexual misconduct.
This view is shared by even those who style themselves liberals, such
as Kevin Huffman of The Washington
Post. Responding to Michael Moore’s $20,000 contribution towards Assange’s bail, he
writes, “Moore asserts that Assange
is under attack solely because he had the courage to expose
American war crimes . . .. Well, that and allegedly assaulting innocent
women (one awake and one asleep).” In the very next paragraph, he goes
on to say:

The problem here is that it is inaccurate on two major counts. Assange
has not been accused of rape in any formal sense: not till date, and
certainly not in 2010 when the article was written (the author himself
betrays some confusion on the point, since in the preceding paragraph
he describes Assange as allegedly
assulting women). Furthermore, when was the last time America started a
“unilateral war” (whatever that means) because its efforts at diplomacy
were frustrated by document leaks? Thus Huffman’s perspective fails as
a general critique of Assange and also, and more important to us, as a
justification for separating the legal aspects of the Assange case from
the political. In fact he achieves the opposite of what presumably he
had set out to do: he focusses attention on the shortcomings of the
views he espouses. If the legal basis of the action against Assange is
so tenuous, then why at all has it been undertaken? Is it to satisfy
objectives that lie beyond the legal, perhaps even in the realm of the
political? And equally pertinently, why is there so much misinformation
spread about Assange? The very existence of these issues urges a closer
look at the political background, if only to serve as the context in
which the legal issues should be examined.

2. Official and Unofficial US Stances

The role Assange and his Wikileaks team has played in procuring and
disclosing top-secret information in the public interest is well known.
By revealing hidden truths on the “war on terror”, he inflicted on the
American military,
security and political establishment arguably more embarrassment than
it has ever had to face. The establishment’s response has been one of
unprecedented ferocity. In 2010, President Obama declared Assange’s actions to be “deplorable”.
Robert Gibbs, then the White House
Press Secretary, went on record
saying “Wikileaks and people that
disseminate information to people like this are criminals” (as the
reporter wryly pointed out, this amounted to declaring Assange guilty
even before charges have been framed). At a press briefing, P. J.
Crowley, then Assistant Secretary at the State Department, accused him of pursuing a hidden political agenda
and trying to
undermine international cooperation. (Ironically, in 2011 Crowley
himself resigned as State Department spokesperson over the
harsh treatment of suspected Wikileaks source Bradley Manning.)

Not
surprisingly, Republican leaders
have been even more scathing in their criticism. Newt Gingrich has claimed he is engaging in terrorism; Muke
Huckabee reportedly demanded he be given the death penalty.
Sarah Palin seems to have gone a step further.
According to the Christian Science Monitor,
her tweets described Wikileaks’s acts as “treasonous”, and suggested
the administration use “all necessary means to respond to and defeat
WikiLeaks.” It is not clear whether she considers “all necessary means”
to include extra-legal measures such as kidnapping or assassination;
however, the
statement is certainly suggestive. But this is not to say such
egregiousness is restricted to Republicans alone. Without doubt the
finest gem I have encountered so far is a statement
made on the Fox Business Show by Bob Beckel, a Fox News analyst close
to the Democratic Party: “This guy’s a traitor, he’s treasonous, and he
has broken every law of the United States. And I’m not for the death
penalty, so…there’s only one way to do it: illegally shoot the son of
a bitch.” It is difficult to say which idea is more amusing: that
illegally killing a person is the right way to deal with a person who
has supposedly broken “every law of the United States”, or that the
moral repugnance associated with lawful execution does  not
apparently extend to illegal assassination.

In contrast to the strong, at times over-the-top, reactions seen, the
response of the US government appears surprisingly low-key. So far, its
most visible actions are the dubious
expedient of extra-judicially coercing banks and credit card
companies into rescinding their contracts with Wikileaks. I had briefly
referred to a prevalent contention that even the extradition
case comprises a
questionable tactic of this nature: the rape and other charges against
him are a mere pretext to get him to Sweden, from where he can be
extradited or “temporarily surrendered” (or some other
euphemism-ed) to the United States. Extradition law experts such as
Julian Knowles QC consider this possibility unlikely for a variety
of reasons, including procedural issues and the overriding application
of  Article 10, ECHR and the First Amendment to the US
Constitution. Regardless, the question still remains: why would US
resort to such underhand tactics in the first place? If its case is
anywhere near as strong as the statements in the previous paragraph
suggest, then surely it can prosecute its interests in a legitimate
manner?

Actually no, that is precisely where the US stance falters.
Assange’s guilt is still a matter of conjecture. Palin’s and Beckel’s
claims of
treason against America are clearly invalid, because treason can be
committed only against one’s own country, and Assange is a citizen of
Australia (even the Christian Science Monitor report on Palin’s tweets
points this out). A Washington Post article
dating back to 2010 points out that prosecution under the Espionage
Act, 1917 will be difficult, since subsequent to its passing several
Supreme Court
decisions have expanded the ambit of First Amendment protections.
Secondly, the documents leaked by Wikileaks have been published in
several mainstream newspapers: hence “How do you prosecute Julian Assange and not the New
York Times?” Notwithstanding these problems, the Post
article reports several sources including Attorney
General Eric H. Holder as saying investigations are ongoing and charges
could be filed under the 1917 Act. That was two years ago. Till date,
the US administration has neither formally instituted proceedings
against him, nor even issued any authoritative statement as to which
legal provisions he is supposed to have violated.

Recent reports,
however, indicate US government lawyers have not only prepared a secret
indictment, but have also convened a secret grand jury (see Dorling, Suroor).
(Ironically, this information comes to us through further Wikileaks
revelations.) If true, it only makes us wonder what purpose this
cloak-and-dagger act is intended to serve. A possibility is that the
indictment is based on grounds so weak that straightforward extradition
requests based on it might not succeed. It might be speculated that
this is also the reason behind the extraordinarily convoluted strategy
of extraditing Assange first to Sweden and then to America, and then
finally prosecuting him. Possession is truly nine-tenths of the law. In
any case, the secrecy behind the indictment only succeeds in lending
credence to theories that the rape charges are actually intended to get
him to the United States.

3. The Justifications

From this increasingly murky scenario, we can identify two different
sets of claims. The first restricts itself to the parameters of the
law. It seeks that Assange should be executed, or at least severely
punished; this necessarily presupposes Assange’s acts are punishable
under US law. The second postulates that regardless of what the law
says, whatever Assange has done is just plain wrong, and he should be
punished for it even if it means going beyond the ambit of the law.
Though the two appear distinct, the space between the two is filled
with several intermediate positions, comprising blends of the legal and
the extra-legal in varying proportions. The preparation of a secret
indictment suggests rendering Assange to US through indirect means, and
then prosecuting him under law once he arrives in America. A variation
on this theme entails trying him in secret, where he may possibly be
denied certain due-process rights defendants are usually invested with
in criminal trials. How far this is possible is a moot question, since
Assange is not a member of the US military, and is therefore subject to
the jurisdiction of civilian courts.

The character of the claims determine the justification they require.
Those claims that restrict themselves to within the law must derive
justification through the law. Those that recommend extra-legal
measures must establish that the concerned acts are so heinous as to
render extra-legal measures ethically and morally acceptable if legally
doubtful. This may be applied  mutatis
mutandis to hybrid claims also; each separate element within the
claim will then need to be justified according to its legal or
extra-legal character. It is not necessary to go into the specifics of
this issue. All we need to acknowledge is that justifying any action
against Assange comprises an onerous task. And secondly,
notwithstanding these difficulties, it is necessary in the interests of
free society for state and international agencies to justify their
actions in this manner. Doing otherwise will only validate Pilger’s comment on descending into totaliarianism.

As against this, how much substantiation has actually been provided in
the Assange matter? Here we encounteer several problems. How do you
justify secret indictments or extradition arrangements? Official
sources cannot do so, for they are, well, secret and hence cannot be
acknowledged. Others are also handicapped by this secrecy, because they
must justify not only the indictments and other measures, but also the
secrecy behind them. Official and independent commentators alike are
impeded in justifying legal measures generally: one cannot justify
legal action unless it is known what crime Assange is charged with.
Attempts like Marc Thiessen’s 2010 article are typical. He begins by asserting:
“Let’s be
clear: WikiLeaks is not a news organization; it is a criminal
enterprise.” Just two sentences later the assertion trails off into
weasel-words and equivocations: “These actions are likely a violation of the Espionage
Act, and they arguably
constitute material support for terrorism.” (emphasis added)

Then come justifications rooted not in law but in certain facts
perceived as wrongs in themselves regardless of legal backing. Of them,
the most reiterated equates Assange to a terrorist waging a cyber-war
against US
(McFarland, Sarah Palin quoted in Beckford). Another popular conjecture is that these leaks are jeopardising America’s relations with other
countries (see Huffman, Collins).
Theissen’s article suggests the murder
of valuable collaborators, by revealing their identity, which
extrapolates into a threat to the “War on Terror” in general. The
problem with all these is that they are either so far-fetched as to not
merit any serious consideration (example: cyber-terrorism) or mere
conjectures which are yet to be verified in any meaningful sense of the
term. Another class of justifications gather around the notion
that harm caused to US interests constitute ipso facto
a cause of action. This rather uninformed thinking fails to distinguish
between legitimate and illegitimate threats to national interests. The
first is indistinguishable from the
facts-perceived-as-wrongs-in-themselves class of justification. And the
second is no justification at all; one might as well declare China a
threat to US economic interests merely because it produces goods
cheaply.

To conclude, then, we find that there has been serious attempt made
to justify projected US actions. This remains true notwithstanding that
justifications are essential to the ‘free world’ of which America
claims to be a leading member. It is against this backdrop that we must
examine the legal issues involved in the Assange case.