When former CIA counter-terrorism officer John Kiriakou was facing an espionage trial for blowing the whistle on torture in interrogations, he hired O.J. Simpson’s jury consultant.

“He’d never lost a case in his whole career,” Kiriakou says. “He came to Washington, got security clearance and reviewed the papers. He said ‘in any other district I’d say let’s go for it, we’re going to win’.

John Kiriakou leaves the courthouse in Alexandria, Virginia, where he was sentenced to 30 months’ prison by judge Leonie Brinkema.Credit:AP

Kiriakou took the deal. He’d faced up to 45 years in prison – less than half Assange’s potential sentence – but bargained it down to 30 months plus a promise he would never appeal, or file a Freedom of Information request on himself, or reveal any more classified information. With good behaviour he was out in 23 months.

And that’s the good news Kiriakou has for the WikiLeaks founder.

“Julian has leverage. WikiLeaks hasn’t released everything. The NSA [intelligence agency] is going to have to do a damage control study, look at whether there is something he can offer in exchange for a lighter sentence.”

But if it goes to trial, Kiriakou says, they’re going to put duct tape over the doors and plastic over the windows, they will encode evidence into a “gibberish” cipher to protect national secrets, and they will clear the courtroom so it’s just lawyers, judge and jury.

They call judge Leonie Brinkema’s courtroom in the Eastern District of Virginia the “Espionage Court”.

“No national security defendant has ever won a case there,” Kiriakou warns.

The game has changed for Assange. And the stakes got higher for everyone: his prosecution could form a precedent, for generations, for the limits on what the public can know about how the secret services and the military work.

Many were shocked when on May 23, the District Court for the Eastern District of Virginia published a new indictment charging Assange with 17 counts of espionage to add to the one they’d already revealed of computer hacking, over WikiLeaks’ 2010 work with army whistleblower Chelsea Manning.

“I was not surprised at all,” gravelly-voiced 85-year-old American lawyer James Goodale says. “I’ve been warning about this for seven years.

“The Obama administration thought it over and concluded there were too many dangers to the free press. But the Trump administration went through with it. Their difference in philosophy is rather obvious.”

Goodale was the general counsel for The New York Times and represented the newspaper in its famous Pentagon Papers case in 1971 – when the Supreme Court ruled that America’s constitutional freedom of speech meant the government could not stop the paper publishing leaked top-secret military documents.

James Goodale (right) with New York Times publisher Arthur Ochs Sulzberger (centre) and managing editor A.M. Rosenthal on June 30, 1971, after the US Supreme Court upheld the newspaper’s right to publish the Pentagon Papers.Credit:AP

Goodale can see a future Assange v United States going all the way to the US Supreme Court.

“I think the world should pay attention to it. It will be a defining case. [A conviction would] make it constitutional to have the equivalent of an Official Secrets Act in the US. It was always thought the First Amendment would stop [that].”

Australia already has its equivalent of Britain’s Official Secrets Act, the 1914 Crimes Act, cited this week after AFP raids on the home of a News Corp journalist and the ABC’s Ultimo offices over leaked classified material. There is, however, no Australian equivalent of the US Constitution’s First Amendment protecting free speech.

Goodale says there is “constant drumbeat” in Washington “to get the leakers … administrations want to stop the leaks because they make government more difficult”.

But, says Goodale, “leaks are the safety valve in the system”.

The Pentagon Papers set a powerful precedent but is of only limited help to Assange, says Goodale. It ruled there could be no barrier to stop publication, but it said nothing about what happens once something is published.

“Rules for [whether someone can be guilty of espionage for] publication have never been set out in the history of the republic,” Goodale says. “What we really don’t want in the world is reporters and publishers subject to criminal sanctions when they’re publishing the truth about what’s going on in the world.”

In mid-1917, the US was poised to enter World War I, as German submarines stepped up their efforts to sink any American ship approaching Europe.

US president Woodrow Wilson warned Germany had “filled our unsuspecting communities and even our offices of government with spies and set criminal intrigues everywhere afoot”.

“If there should be disloyalty, it will be dealt with with a firm hand of stern repression,” he said.

Two months later Congress passed the Espionage Act, making it a crime to obtain, copy or communicate “information respecting the national defence with intent or reason to believe that the information is to be used to the injury of the United States”.

The government has only twice charged non-government third parties with Espionage Act crimes.

In 2005 two employees of a pro-Israel lobby group allegedly conspired with a Pentagon analyst to get (verbal) classified information about Iran and pass it on to Israel. The charges were dropped in 2009 after a District Court judge required a high standard of proof that they had known distributing the information would harm US national security, and knew they were breaking the law.

This is likely to be a significant hurdle for the US in the Assange case.

And before that was the 1971 prosecution of Anthony Russo, who helped military analyst Daniel Ellsberg copy the Pentagon Papers, a top-secret study of US strategy in the Vietnam war.

That prosecution fell apart after it emerged a Nixon White House team had broken into Ellsberg’s psychiatrist’s office to steal medical files.

But the Assange indictment marks the first time anyone has been charged under the Espionage Act on the act of publication. Three of the 17 charges against Assange allege publication as a crime (as opposed to conspiring with a source, or aiding and abetting the acquisition of classified information, which other Assange charges relate to).

Gabe Rottman, counsel to the American Civil Liberties Union, says there have been four previous cases in which the government contemplated bringing such “pure publication” charges – but it never did.

The Washington Post has reported that two prosecutors disagreed with bringing charges against Assange “in large part because Assange’s conduct was too similar to that of reporters at established news organisations”.

Rottman says it does not matter whether Assange is or was acting as a journalist (a subject of some debate). The First Amendment covers everyone, but so does the Espionage Act.

Unlike Goodale, Robert Chesney, a professor of law specialising in national security law at the University of Texas, was “flabbergasted” at the espionage charges added to Assange’s rap sheet. They increase the difficulty of prosecuting Assange and of extraditing him to the US from Britain. The government would also have known it would provoke intense controversy, Chesney says.

He believes the move may reflect a “studied determination” by authorities to send a larger signal to others who would leak or publish national security secrets.

“They view WikiLeaks as a hostile foreign organisation that should not be in the same category as the Washington Post or New York Times – but if [prosecution] has that chilling effect on, say, The Guardian, they might like that into the bargain.”

He says it is not yet clear if prosecutors will make a distinction between what Assange has done and what “traditional” news organisations do – or if that is even possible.

“[Assange] says a great deal about affirmatively harming the US government and its intelligence apparatus, and no traditional news organisation would say that, but I’m not sure that’s enough of a distinction,” he says.

And he agrees with Goodale that the Pentagon Papers case is not the powerful shield that some believe. In that case the judges “held open the door” to prosecution after publication.

Nevertheless, Chesney thinks it is “preposterous” to claim Assange will not get a fair trial. He says there is a lot of “baloney” being spread about the US justice system, particularly with bogus comparisons to Chelsea (then Bradley) Manning, who was tried in a military court.

Julian Assange will be tried in a civilian court, unlike Bradley (now Chelsea) Manning, who faced a military court.Credit:AP

Chesney says there would be “all kinds of media attention, all kinds of legal representation, people donating time and money and amicus [briefs]” on Assange’s behalf.

“He will have his fair day in court and he may well win.”

That’s if he gets there. First, there will be a legal fight in Britain over extradition.

Chesney says espionage is one of the classic examples cited in what is known as the “political exception” to extradition, alongside sedition and treason. There is a good chance a British court could consider it the kind of crime that should and does fall outside extradition rules. Assange’s side will likely argue this.

One of Britain’s leading extradition lawyers, who asked not to be identified in this article, said UK courts had recently made landmark decisions preventing extraditions to the US, including alleged hacker Lauri Love in 2018, on the grounds of his “physical and mental condition”.

Chinese artist Ai Weiwei, left, at a demonstration in Berlin last month against extradition of Julian Assange to the US.Credit:DPA

Assange is reported to have long-term physical and mental health issues, and extradition is not granted if it would be “oppressive or unjust or cruel”. However Assange does not have Love’s UK connections and arguably his physical and mental problems could be treated just as well in the US.
Another argument Assange could employ would be “double criminality”, the lawyer said. The court will have to “sit down and decide whether what Assange did would necessarily be a crime here [in Britain], and would then get sucked into what the defences would be”.

The UK does have an Official Secrets Act, but in the case of journalists courts would usually look at whether it was in the public interest to publish.

“It’s pretty unclear the extent [to which] you can run a public interest defence on official secrets in [Britain],” the lawyer said. “In this case there are a lot of unknowns.”

So Assange’s case could end up setting a precedent in that country, too.

And then there’s the Swedish question. If Assange is sent first to Sweden to face the rape investigation there, the US would likely find it easier to extradite from there – not because of any deficiency in Swedish justice, but because it is an easier case for the defence to fight in English, in British courts that have proven “robust and independent” in extradition fights.

At a time when media freedoms are being tested around the world, Assange could prove the biggest test of all.

Source: Read Full Article