Which is the more serious criminal activity: extrajudicial killings, routine torture of prisoners and illegal renditions carried out by a state, or exposing those actions by publishing illegally leaked details of how, where, when and by whom they were committed?
That is essentially the question that was asked this week at the Royal Courts of Justice in London. It has sometimes seemed during the proceedings that the ornate building at the end of Fleet Street, opened by Queen Victoria in 1882, had become more of a theatre than a court. Outside, vast crowds gathered, chanted, listened to speeches, halted traffic and asked passing drivers to hoot their support. Inside, some of the UK’s leading barristers, watched by journalists from all over the world, spelled out the plot to packed public galleries in overflow courts. This drama started more than a decade ago, yet only now are we approaching the final act.
We are talking, of course, about the case of Julian Assange. He has been seeking leave to appeal against the decision to extradite him to the US to face trial under its Espionage Act for his publication of documents, via WikiLeaks, which detailed illegal US actions in Afghanistan, Iraq, Guantanamo Bay and elsewhere and which were leaked to him by the former US soldier Chelsea Manning.
The elegant cage in court five, where traditionally those who have been brought from prison have to sit while their appeal is heard, was empty. The lead character was missing. Assange, now in his fifth year in high security Belmarsh prison, despite having been convicted of no crime, was too unwell to attend or even watch the proceedings remotely. But, along with all his supporters, including his wife, Stella, and his father and brother, there were some important ghosts in court.
It is nearly 50 years since the former CIA agent Philip Agee leaked details of his country’s illegal activities on behalf of rightwing dictators in Latin America to the London magazine Time Out – then in its early, radical days – and his case was cited by Assange’s lawyers, Edward Fitzgerald KC and Mark Summers KC. Crucially, despite false claims that his leaks had led to deaths, Agee was never extradited to the US, although he was deported from Britain by a Labour government in 1977. When we met up again in Germany in 2007, not long before his death, I asked what might now happen to someone who acted as he had, leaking information to expose US criminality. “I think it would be much harder,” said Agee. “A person who tried to do what I did would face kidnapping and possibly being put on ice in a secret prison for many years to come.” How right he was.
In court also was the ghost of another heroic truth-teller, Daniel Ellsberg, who died last year and who faced the same charges as Assange in 1973 for exposing US activities in Vietnam – and who had given evidence for him in a previous hearing. The mention in court of those two names was an indication of the vital importance of this week’s hearing. It is a case that will define how seriously our judiciary and our politicians consider the notion of free speech. As Fitzgerald told the court, this is a “legally unprecedented prosecution (that) seeks to criminalise the application of ordinary journalistic practices”.
For the US, Clair Dobbin KC said the charges against Assange were not political but were brought because he went “far beyond the acts of a journalist who was merely gathering information” and “responsible” journalists would not have acted as he did. She said that some of those identified in the leaked material had had to flee their homes. Yet in evidence given at Manning’s sentencing hearing in 2013, it was revealed that a team of 120 counterintelligence officers had been unable to find a single person who could be shown to have died because of WikiLeaks’s revelations.
The Americans have recently been arguing for the release from detention in Russia of Evan Gershkovich, the Wall Street Journal reporter who was arrested last year in Yekaterinburg despite having full press credentials from Russia’s foreign ministry. No wonder Vladimir Putin mocks US pleas made on his behalf when they are simultaneously trying to lock away Assange on equally bogus espionage charges.
Some of the “responsible” press in this country have barely covered this case, too busy with stories about tiffs in the royal family or the news that footballer Wayne Rooney had applied to study law – cue jolly pic of Wayne in barrister’s wig – while the real life barristers have been fighting for the life of a journalist who, as things stand, could die in prison. Judgment has been reserved, but what did emerge from this week’s hearings was that, while Assange would avoid the oft-quoted potential sentence of 175 years in the US, he would probably face a sentence of between 30 and 40 years. For a 52-year-old in poor health that almost certainly means dying behind bars.
Politicians in the UK often express their horror at “cancel culture”, but few have so far managed to denounce the US’s attempts to cancel a journalist for the offence of causing shame and embarrassment. So, after this week, the next question is this: does our judiciary and our government have the steel to fight this extradition? Everyone who values the right to free speech undoubtedly should.
Duncan Campbell is a freelance writer who worked for the Guardian as crime correspondent and Los Angeles correspondent
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