Julian Assange, who faces extradition from the UK to the USA on charges based on his publication of American government secrets, is being denied the right to a fair hearing. He is being abused and tormented.
But the deeper problem is that even if his legal rights were respected, he might well be convicted under existing U.S. law.
And this would establish the precedent that the U.S. government can commit crimes, classify those crimes as secret and imprison anyone who makes these crimes known.
This would break the uneasy truce between the government and the U.S. press, in which whistleblowers reveal secrets at their peril, but the press is allowed to publish them with impunity.
Such a distinction does not make logical or legal sense. In the law of libel, for example, the writer and the publisher are both liable for damages. But in practice, it has allowed some abuses of power to come to light that otherwise would have been hidden.
The U.S. government has already claimed the legal right to wage undeclared wars, to commit assassinations, to engage in warrantless arrests and warrantless surveillance and to torture people to get information—all in the name of national security.
The most important remaining restriction on abuse of these powers is the force of public opinion. But the public can’t have an opinion on what it isn’t allowed to know.
Among the Presidential candidates, the prosecution of Assange is opposed by Democrats Pete Buttigieg, Tulsi Gabbard,, Bernie Sanders, Elizabeth Warren and Marianne Williamson and Republican Joe Walsh.
Sanders said that, if elected President, he would not prosecute whistleblowers. I believe Sanders, but I remember President Obama also promised that, and Obama prosecuted more whistleblowers than any previous President.
Even if Sanders or one of the other candidates is elected, and even if they follow through on their promises, this would be just a matter of policy that could be reversed by the next administration.
What’s needed is a law that allows people charged with revealing classified information to rebut the charge by showing they acted in the public interest by revealing crimes, wrongdoing or mismanagement and that the national interest was not harmed.
The same purpose could be achieved by judicial decision—that the use of the Espionage Act to protect the guilty or the incompetent is unconstitutional.
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In 2003, Katherine Gun, a translator for GCHQ, the British equivalent of the NSA, was charged with violation of Britain’s Official Secrets Act for revealing a memo from the NSA to monitor private communications of United Nations delegates for scraps of information to be used to influence them to vote for the U.S. invasion of Iraq.
She chose to defend herself on the grounds that the war was illegal. Rather than face a challenge to the legality of the invasion, the British government dropped charges.
In 1973, Daniel Ellsberg was charged with violating the Espionage Act and other offenses for revealing the Pentagon Papers, a historical study of the blunders that led to U.S. failure in Vietnam. A judge dismissed the charges on the grounds that the government had violated Ellsberg’s rights, including burglarizing his psychiatrist’s office in the hope of finding information to embarrass him.
Maybe a brave judge could use these precedents as a legal basis to acquit Assange. But that can’t happen if Assange dies in prison, and wouldn’t matter if his tormenters destroy his mental and physical health.
I wouldn’t expect an Assange conviction to be followed by charges against the New York Times, Washington Post, other established newspapers or broadcasters. Rather I would expect the majority of journalists, publishers and broadcasters to be very, very careful that they do not risk meeting Assange’s fate.
LINKS
Debunking all the Assange smears.
Ten things the world knows due to Wikileaks.
Phil Ebersole's Blog 
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