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Pierce writes: "Let us all stipulate for the record that even egomaniacal messianic nihilists have rights, too."

Julian Assange. (photo: Getty)
Julian Assange. (photo: Getty)

Julian Assange's Legal Proceedings Will Do Profound Damage to the Institutions of the Free Press

By Charles Pierce, Esquire

11 April 19

The Wikileaks founder has been arrested. What comes next will be key.

et us all stipulate for the record that even egomaniacal messianic nihilists have rights, too. From the BBC:

Mr Assange took refuge in the embassy seven years ago to avoid extradition to Sweden over a sexual assault case that has since been dropped. The Met Police said he was arrested for failing to surrender to the court and following a US extradition request. Ecuador's president said it withdrew his asylum after repeated violations of international conventions. But Wikileaks tweeted that Ecuador had acted illegally in terminating Mr Assange's political asylum "in violation of international law".

Mr Assange, 47, had been in the Ecuadorean embassy in London since 2012, after seeking asylum there to avoid extradition to Sweden on a rape allegation - which he denied and was later dropped. But he still faces a lesser charge of skipping bail in 2012 and he says this could lead to an extradition to the US for publishing US secrets on the Wikileaks website. Scotland Yard said it was invited into the embassy by the ambassador, following the Ecuadorian government's withdrawal of asylum.

After his arrest for failing to surrender to the court, police said he had been further arrested on behalf of US authorities under an extradition warrant. He is accused in the US of "computer-related offences", the Home Office said.

Since the trenches in this particular political war were dug and reinforced months ago, the coverage and commentary on Assange's arrest is not likely to be nuanced. Nevertheless, there's a lot to be concerned about in how it went down, and in what may come next.

Most notable, at least to this particular shebeen, is whether or not the U.S. government will attempt to devise a definition of what is journalism and what is not—specifically, will it find a fig-leaf behind which Assange can be prosecuted for obtaining and leaking documents while institutions like The New York Times and the Washington Post can skate on having published allegedly purloined information. My instinct tells me that any distinction so drawn necessarily will be ad hoc and therefore more than a little lawless.

As Supreme Court Justice William O. Douglas wrote in New York Times Co. v. United States, the landmark case in which the Court allowed the publication of the Pentagon Papers which, you may recall, the Nixon Administration argued were obtained illegally...

'The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be "uninhibited, robust, and wide-open" debate.

I would be reluctant to draw a distinction between these two cases based merely on the technology involved—that, somehow, hacking information out of the government is fundamentally more serious than physically spiriting documents out of a file and then copying them by hand.

It can be argued, I guess, that the Pentagon Papers were largely historical documents relating to past events, and that the attempt to enjoin their publication was an attempt to avoid embarrassing the historical actors involved in those decisions. But that was not the argument the Nixon Administration made, and, anyway, there's an argument to be made that revealing those decisions at the time they were made would have better served the nation. (See also: the Times's decision to sit on what it knew in advance about the imminent Bay of Pigs invasion of Cuba.)

As the indictment clearly shows, Assange is being extradited to the United States to face charges relating to the leak of documents by Chelsea Manning, and not for any activity relating to the 2016 election, although now that he's in custody, I suspect that all likely will come up. In other words, the charges are based on revelations taking place in real time, rather than five or six years in the past. This is the distinction that the Obama administration gave up trying to draw. It saw no way to prosecute Assange and WikiLeaks while not prosecuting the publications with which WikiLeaks did business. My guess is that the current administration* is disinclined to respect such a delicate conundrum.

Assange and his merry band did incalculable harm to the United States through whatever assistance they gave to the current criminal organization presently running the Executive Branch. In fact, the arrest and extradition of Assange is an act of towering—if typical—ingratitude on the part of the president* Assange so readily helped. But I have no confidence that, in the legal proceedings that will flow from this arrest, profound damage will not be done to the institutions of a free press. Julian Assange is not the only egomaniacal messianic nihilist involved in this case.

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