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article imageOp-Ed: Can Assange or Manning get a fair trial? Doesn’t look like it

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By Paul Wallis     Jun 22, 2012 in World
Sydney - Julian Assange’s move to the London embassy of Ecuador may look like a desperate move, but there may be good reason for the desperation. Readers note- This is a very long article, because it's a very difficult subject and involves legal principles.
Strong rumors from the US say that an extradition warrant, on charges of espionage, has already been drawn up. One of the penalties for espionage is death.
Assange obviously isn’t hanging around to find out what happens next. The move for asylum is a pretty good indicator. Apparently his faith in the US judicial system doesn’t extend to benefit of the doubt. Given the rabid hysteria in right wing media which followed the Wikileaks release of US documents, that’s not exactly surprising.
Assange is a hero to some, a target to others. This case, however, isn’t quite as straightforward as it might seem. The question is whose interests are being served by the apparent campaign against Assange and Wikileaks. The New York Times and Washington Post published, at their discretion, information obtained from Wikileaks, and they appear to be in no danger whatsoever of any form of penalty. Assange is in fact being convicted by association by the media. He’s deemed to have been responsible as the head of Wikileaks.
The big silence
Mainstream media, in fact, went out of their way to bury all issues related to the Wikileaks release except Assange himself and Bradley Manning, the actual source of the information. This is kindergarten media and PR psychology- Give one person a name and just don’t mention any others or raise any other distracting issues, and that’s the focus of the information.
There was no mention, in any form, of:
The culpability of officeholders for the security breaches of the military and US government departments. Nobody, so far, except Manning, a private, has been charged with anything. Apparently anyone can walk in to a US government data stream and nobody’s responsible.
The nature of distribution by Wikileaks, which hardly equated with the natural legal form of espionage. A real spy either works for another nation or will sell information to whoever wants it, preferably the highest bidder. Industrial and political espionage is big business these days and is one of the reasons for repeated hits on so many corporations and government agencies. Ironically, Wikileaks is effectively disqualified from espionage charges, simply by definition. It didn’t act as a spy, or on behalf of any government. It didn’t obtain the materials itself, or solicit them directly, if the stories told about how it obtained the information are correct. It may or may not be guilty of holding classified information, if that’s the case, but not espionage in the conventional sense of the word.
The actual significance of the documents beyond generalizations. Bizarrely, nobody seems to have been in any great hurry to deny the more penetrant content of the State Department leaks, for example. The video materials of the US military, which are actually quite good fodder for foreign military analysts, also didn’t get much attention. “Assange/Manning bad, US government good,” was about as far as the pundits were prepared to go.
The apparent results of the Wikileaks information release. Apart from a range of claims regarding risks to operations (none of which materialized in any form, even according to those who predicted them), there doesn’t seem to have been any drastic consequences.
The fact that Wikileaks effectively acted like a journalist. It had the information, what was it supposed to do with it? Hatch it? Keep it until it became a valuable antique? News media protect their sources of embarrassing information with a messianic demand for justice, but they don’t make the equation between Wikileaks and their own methods?
Whose interests are being protected?
All of which raises a big question- Whose interests are being served by the Assange witch hunt?
So far, it looks like the human placeholders of Washington. If Assange and Manning did the United States any disservice, it’s arguable that this large group of responsible people did much worse. They exposed the US to a major security breach and then cried foul when it inevitably happened. They also staged a major cover-up of blatant security failures across multiple areas.
Not the sort of culture which inspires a lot of confidence. Nor does it help that a US security firm has been sending emails around the world saying, “We’ve already got the extradition written up,” regarding Assange’s deportation to Sweden. Note the use of the word “we”. Exactly who are the legal authorities of the United States, the judiciary, elected reps and President, or some tinpot security firm hanging on to its coat? Who’s “we” in this context?
Arguably far worse, the political and judicial machinery missed this spinning targeting exercise entirely. The targets were Manning and Assange from the start, and nobody else. The US took a severe hit to its image of judicial and legal proprieties with the Guantanamo legal fiascos, rendering, and Abu Ghraib. The Wikileaks affair is no better, so far, as a legal process.
The backwash from Wikileaks
The US may be doing itself some real harm here. The perception that Assange and Manning cannot get a fair trial, being convicted by anyone able to write a blog for the last few years, won’t go away. That means any subsequent breaches of security are likely to be on a “combat” basis.
The relatively benign, altruistic leaks will be replaced by genuinely hostile leaks. Future leaks are likely to have backup from the heavies, not just the lightweight, all over the place politically Internet critics.
Whistle blowers acting in the public interest will be far more defensive and reluctant to do anything. Valuable information will be even harder to get than it is now, in a very hostile environment. This situation simply protects crime, malpractice and corruption, and nobody else.
Saboteur leaks will do their damage and run. They won’t be findable; they won’t give their names and they’re more likely to use botnets than press releases to distribute their information.
Legalities, or how to create obscure definitions
There’s a big legal problem, too, in accusing anyone who receives information of espionage, “on principle”.
If someone gives you the codes to the US nuclear arsenal, without your asking for them, but simply because you happen to be a journalist, are you guilty of espionage?
If disclosing information about the activities of a government is illegal on principle, disclosing the existence of Nazi concentration camps in WW2, common knowledge but important information, could be considered espionage.
If you have information which you believe is in the public interest to release, are you a spy or a whistleblower? The definitions aren’t looking too solid, are they?
Are you colluding with someone on the basis that the person or persons giving you information approach you? Not really. If you act on that basis, you may be guilty of misappropriation, but not “espionage”, nor can you be considered to be guilty of espionage by association. It’s a pretty nebulous set of situations.
In my view, Wikileaks was associated after the fact, if it’s considered to be a party to the actual conduct of acquiring information. The difference is between the actual perpetrator and the recipient of stolen goods. They can’t be considered to be the same things at law, because they aren’t, by definition.
The bar could be raised to an impossible level for security agencies. It could also get dangerous. The benevolent Internet hackers aren’t heavies. They don’t shoot. The other kind is anything but benevolent, and they do. The new environment could be dominated by seriously dangerous terrorists, able to access information through the feeble US security system. (It’s feeble if it’s still in the condition it was when Manning allegedly took all those files. “Pathetic” would be another description, and anything but secure.)
US media is also hardly winning any credibility in this saga, not that it’s deserved much since 2008. It took advantage of the leaks, and then did absolutely nothing in terms of defending their alleged sources. It’s OK and quite proper for US media to publish the information they receive from any source, while simultaneously the source is the only possible guilty party, while actively being condemned by most of the US media?
For any Americans wondering why I use the word “alleged” and other qualifiers- In just about every country other than the US, people accused of a crime are considered innocent until proven guilty. It’s illegal to refer to them as though they committed any offense until actually convicted. Pity the US media, judiciary, and government don’t seem to see things that way.
The Hydra effect
One more thing, for what it’s worth- The social environment of this legal battle is very different to anything which has gone before. In the post-Occupy era, the levels of hostility to government self-interest and pandering to corporate interest have risen astronomically. A previously merely discontented public now contains an actively hostile component which may find the attacks on Wikileaks and Manning to be proof of the rule of the 1% and the Washington cliques and claques.
The likely result of mishandling of any legal action or perceived injustice will almost certainly be thousands of Wikileaks where there was one, an unstoppable global Hydra, and probably a very heavy one. As it is, the public can pick up phone and create havoc any time it feels like it. The fact that it hasn’t isn’t a triumph of PR and media psychology. It’s a rather wistful remnant of faith in democracy, particularly in the US. It’d be nice if somebody noticed that.
One of the most consistent historical signs of a failing state is injustice. The constant betrayal of democratic values can only be tolerated so far. Injustices against races and the poor, and more recently the middle class, are the core of the most serious of the US social issues.
If the campaigns against Wikileaks and Manning are seen as a justification for wider actions against a broader group of people, or a McCarthyist regime of allegations against anyone and everyone arises as a result, the likely results can only be catastrophic. It’s also more than likely that groups external to the US would get involved. Technically literate people can do a lot more damage than the illiterates, and far more expensively.
So let’s try to conduct the law as the law, shall we, not some sort of cheerleading exercise? It’d be a very nice change, and who knows, might even lead to some actual justice.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
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