By Jennifer Robinson, The Sydney Morning Herald, December 6, 2020
WikiLeaks has raised fundamental questions about human rights and free speech both in Australia and around the world – and about Australia’s place in the world.
When WikiLeaks first appeared in 2006, it was publishing important information that had been kept from the public but was essential for human rights accountability. From the classified Guantanamo Bay manual detailing US torture techniques, to the Minton report detailing Trafigura’s toxic dump on the Ivory Coast affecting over 100,000 people which the company had suppressed with a gag order in the UK, WikiLeaks’ releases were enabling us as lawyers to have the information we needed to do our job.
As a media lawyer battling for journalists to get access to government documents under freedom of information laws, I have been frustrated by the broad exemptions (and the broad interpretation given to them) that are used by governments to maintain secrecy and hide their mistakes from the public they are supposed to be accountable to. This is why investigative journalism operates on leaks. Principled government bureaucrats hand journalists documents when they see wrongdoing because they believe the public ought to know what the government is really up to. Principled corporate employees hand journalists confidential documents that demonstrate the unlawful or unethical practices of powerful corporations.
Journalists receive and publish that material with the free speech protections provided in the constitutions of liberal democracies around the world – except in Australia, where we rely on a mere implied and limited right to freedom of communication granted to us, by interpretation, by the High Court in 1992. Australia has no explicit constitutional protection of free speech.
In many jurisdictions, whistleblowers have no legal protection, relying instead on the obligation journalists have to protect and maintain the confidentiality of their sources to prevent the identification of the whistleblower and hence protect them from prosecution. Unfortunately, however, journalists can face prosecution if they refuse to reveal their source in many places around the world.
WikiLeaks’ model provides a practical solution: its anonymous submission system was specifically designed to provide protection to journalists and whistleblowers that the law does not provide. Together with its robust publication policy, WikiLeaks provides sources better protection and a promise that their material – once verified – will be published. And published with maximum global effect: WikiLeaks makes its information available to journalists, citizen journalists, activists and lawyers the world over.
This is why WikiLeaks is so dangerous to those in power with something to hide – and why WikiLeaks must be defended and protected.
So when I was approached to defend Julian Assange, I said yes without hesitation. It was September 2010: by then WikiLeaks had published “Collateral Murder”, a video showing the US military killing two Reuters employees in Iraq, and the “Afghan War Diary”, then “the most significant archive about the reality of war to have ever been released during the course of a war”. Chelsea Manning was in a US military prison about to face espionage charges and a possible death penalty for allegedly releasing material to WikiLeaks. But even then, I did not anticipate just how big the story would become.
In Australia, the revelations increased pressure on the government to withdraw from the US coalition of occupation, and in June 2008 prime minister Kevin Rudd announced a drawdown of most Australian combat troops. However, it was a US State Department document later released by WikiLeaks that showed the truth hidden from the Australian public: fulfilling a campaign pledge, Rudd withdrew approximately 515 combat troops from Iraq in June 2008, leaving in place approximately 1000 defence personnel, including a 100-man security detachment for its diplomatic mission in Baghdad, and naval and air patrol assets based in neighbouring countries to support operations in both Iraq and Afghanistan.
Soon after, WikiLeaks published the “Iraq War Logs” – the largest leak in US military history. The documents demonstrated there were many thousands more civilian deaths than reported or acknowledged by the US government, as well as the systemic failure to investigate reports of abuse, torture, rape and even murder by Iraqi forces and abuse in US detention facilities.
Days after, Assange told me there was more to come: he had over a quarter of a million US diplomatic cables and he was going to publish them: it would provide the public unprecedented insight into international diplomacy, US foreign policy and, as a result, Australian acquiescence to its ally’s demands. Assange was acutely aware of the personal consequences and the persecution that would follow, but felt a duty to the source and to the public to publish the material: “They will chase me to the end of the earth, but I have to do it.”
Soon his bank accounts were frozen, WikiLeaks would be cut off from public donations by Mastercard and Visa, the Australian government threatened to cancel his passport and he was wrongfully accused by then prime minister Julia Gillard of unlawful conduct, as part of what was reported to be a co-ordinated international campaign driven by a “WikiLeaks Task Force” in the US.
High-profile US politicians called for him to be killed by drone strike. Assange, busy working on the publication with mainstream media partners, was suddenly the subject of an international manhunt culminating in an Interpol Red Notice and a European Arrest Warrant for a Swedish accusation that had previously been dropped by the Chief Prosecutor in Stockholm because, she said, the evidence “did not disclose any evidence of rape” and that “no crime at all” had been committed.
There were also consequences for me as his lawyer. In the days before “Cablegate” was published, the US State Department leaked to the press a letter it had sent to “Ms Robinson and Mr Assange” accusing us both of putting at risk US national security, military and anti-terrorism operations around the world. The death threats directed at Assange also started being directed at me.
“Cablegate” became known as “the largest set of confidential documents ever to be released into the public domain” and there is no denying the overwhelming public interest in the material. From Tunisia to Tonga, Canberra to Cairo and the West Bank to West Papua, WikiLeaks disclosures revealed corruption, abuse of power and human rights abuse.
WikiLeaks documents were cited in human rights reports about Sri Lankan military operations against the Tamils and in the groundbreaking documentary No Fire Zone, which led to a UN investigation into war crimes. The “Iraq War Logs” were used by lawyers in filing a case against the UK before the International Criminal Court. And in a landmark judgment in early 2018, the UK Supreme Court held that WikiLeaks cables were admissible as evidence before the British courts. This development is likely to be followed in courts around the Commonwealth.
But what of WikiLeaks’ founder and editor – the person responsible for making all of this possible?
Assange sits in Belmarsh Prison in London, where he has been for over a year-and-a-half, facing US extradition. This, after spending almost seven years in London’s Ecuadorian Embassy, to protect himself from US extradition. In 2017 Sweden dropped its criminal investigation, only to re-open and re-close it in 2019.
Women’s allegations must always be taken seriously, but so too should due process protections which Assange was denied.
Assange was always willing to face Swedish and British justice, but not at the risk of facing American injustice for publishing information in the public interest.
Throughout that time, successive Australian governments refused to ask for the assurances against extradition he needed to be able to resolve the situation. To the contrary, then foreign minister Bob Carr wrote in Diary of a Foreign Minister that he had been deliberately misleading in his statements to the Australian public – inventing his claim that Assange had more consular assistance than any other citizen – in order to undermine the campaign that Assange’s mother and supporters were trying to start to bring him home. (Carr has more recently written in support of Assange and the need for the Australian government to intervene.)
In 2016, we obtained a ruling from the UN that Assange was being arbitrarily detained and should be immediately permitted to leave the embassy and return home to Australia. Australia took no action.
By 2018, no one could credibly deny the threat of US extradition: US attorney-general Jeff Sessions had said that prosecuting Assange was a priority. Then director of the CIA (and now US Secretary of State) Mike Pompeo declared WikiLeaks a “hostile non-state intelligence agency” and claimed Assange should not benefit from the right to free speech under the US Constitution. Australia took no action.
In 2020, Assange faces 175 years in prison for the 2010 publications for which WikiLeaks won the Walkley Award for Most Outstanding Contribution to Journalism and for which Assange won the Sydney Peace Prize.
He is now being held on remand, in a high-security prison in London, having not had a visitor since the outbreak of COVID-19. And still Australia takes no action.
The Australian government claims it is offering consular assistance. But this case requires more: it needs diplomatic and political action.
The treatment of Assange stands in stark contrast to assistance the Australian government has offered others, such as International Criminal Court lawyer Melinda Taylor, who was visited by Carr when he was still foreign minister, had a passport delivered and then was brought out of Libya.
The fact that Assange now faces prosecution under the Espionage Act puts at risk editors and journalists not just in the US but around the world.
Assange is an Australian citizen, not based in the US, who published truthful information about the US, but he is being sought for extradition and prosecution in the US. Imagine if Saudi Arabia was seeking the extradition and prosecution of an Australian journalist for having published the truth about the murder of Jamal Khashoggi, or if China was seeking the extradition of an Australian editor for publishing truthful information about the beginnings of COVID-19. Australia would definitely have something to say about that. Why not when it is about the US?
The US government is trying to claim in the extradition proceedings that Assange put lives at risk with these publications. But during the Chelsea Manning trial in 2013, a US brigadier-general in counter-intelligence was unable to identify one casualty. Pentagon spokesman Geoff Morrell had said in 2010 “there was no evidence that anyone had been killed because of the leaks”.
We must now recognise this case for what it is and has always been about: the persecution of a publisher for robustly publishing what the powerful do not want the public to see – evidence of war crimes, human rights abuse and corruption.
As Bob Carr has written following his term as Australia’s foreign minister: “Foreign Minister Payne is entitled to courteously remind Secretary of State Mike Pompeo that … we are a good ally to the point of giddy excess … We are entitled to one modest request: that in the spirit with which Barack Obama pardoned Chelsea Manning … it would be better if the extradition of Assange were quietly dropped.”
Assange has contributed much to human rights accountability through his work for WikiLeaks and yet he is persecuted for that work. It is time his human rights are respected.
Featured Image: Julian Assange is fighting extradition to the US, PA Media