In 2006, when Australian-born Julian Assange was 25 years old, he created WikiLeaks. He intended it to provide anonymous whistleblowers with a platform to expose corruption and other criminal activity in order to force organisations into staying honest by inducing fear and paranoia into their leadership. He saw this as a way of preventing the abuse of power. People are more inclined to behave well if they are scared that their criminal behaviour will be exposed.

During the first two or three years of WikiLeaks’ existence, it received some scoops, most notably material exposing corruption in the Arab world and extra-judicial executions carried out by the police in Kenya.

From time to time, WikiLeaks would engage with established mainstream media. One such collaboration was with the Sunday Times to produce a series of articles published around the political killings in Kenya. This raised WikiLeaks’ profile. For this body of work, Julian received the 2009 Amnesty International New Media Award.

The Manning leaks

Things changed in 2010 after a US military intelligence analyst who worked for the US Army, Chelsea Manning, sent WikiLeaks three troves of secret information that she had accessed from the army’s computer system.

In April 2010, she sent the first trove with a video titled “Collateral Murder” that showed US soldiers in an Apache helicopter hunting down and then firing on a group of 18 unarmed civilians walking in the street in Baghdad — among them were two Reuters journalists.

At one point in the footage, a man who had been shot but not killed is seen crawling along the ground trying to get away. Two good Samaritans drive past in a vehicle and stop to help him. The Apache helicopter is seen turning around to come back for them. It fires upon the van, killing the wounded man and the good Samaritans.

This footage suggests a war crime: soldiers firing on unarmed civilians. The audio that accompanied the footage was particularly awful: the US soldiers in the helicopter were laughing and congratulating one another on their kill. It was crude and callous and when I watched it, it reminded me of kids playing a video game, seemingly far removed from the horrors of what they were actually doing.

In October 2010, Chelsea Manning sent the second trove titled the “Iraq War Logs”. They were a collection of 391,832 US Army field reports from the Iraq war covering the period 2004 to 2009, published to expose some mistruths that were being peddled by the US government about the war in Iraq and what America was actually trying to achieve there.

In November 2010, Chelsea Manning sent a third trove of about 250,000 US diplomatic cables known as the “Cablegate Files”. They showed how the US unlawfully spied on other world leaders, including some of its closest allies. This exposure was, of course, a great embarrassment for the US government.

For her role, Chelsea Manning was tried, convicted and sentenced to 35 years in prison (later commuted by President Barack Obama to seven years).

Pursuing Julian Assange

US law enforcement agencies began building a case against Assange, seeking to prosecute him under the Espionage Act of 1917, a World War 1 piece of legislation designed to punish spies and people considered dangerous or disloyal to the US because they acquired, possessed and distributed state secrets and confidential information to the enemy.

The US wanted to get him into an American criminal court, but he was living and working in London. Sweden sent a request to the UK asking it to extradite Assange to Stockholm to answer questions about a rape investigation.

Assange contested the legal proceedings. He said that the charges were trumped up and that the US government was behind it. With little place to hide, he took refuge in the Ecuadorian Embassy in central London. Although the embassy is situated in London, Ecuador enjoys sovereignty over the embassy. He was safe there, beyond the reach of the UK government who, it was clear, would happily assist the US government if it could.

Assange chose Ecuador because relations between Ecuador and the US were bad. He had reason to believe that Ecuador would protect him from the US. And it did, for seven years, by offering him an office that had been converted into a studio apartment.

In 2018, Ecuador got a new president, Lenin Moreno who, unlike his predecessor, had a better relationship with the US. On 11 April 2019, President Morena revoked Assange’s asylum and he was evicted from the embassy. He was grabbed by members of the London police who were waiting for him outside on the street. He was taken to Belmarsh, the most notorious prison in the UK.

Read more in Daily Maverick: Julian Assange Stripped of Ecuadorian Citizenship by Court

That is where he spent the next four years of his life, not as a man who had been charged with any crimes by the UK, but rather as a man being held by the UK pending his possible extradition to the US. He was being detained until extradition proceedings could be finalised.

Extradition to the US

The extradition hearings were held in London. They would determine if Assange could be extradited from the UK to the US. Assange’s counsels’ main defences, rooted in extradition law and accepted as lawful mechanisms to resist extradition, were essentially that he was being politically persecuted and that he would not get a fair trial in the US.

His counsel also relied on the fact that he was essentially doing the work of an investigative journalist and that his actions were protected by freedom of expression and freedom of the media. Some evidence was led to suggest that Assange would, if extradited to the US, be at a high risk of suicide. He was clinically depressed and suffered from Asperger’s syndrome.

Judge Vanessa Baraitser sided with the US on each and every legal argument, including whether the charges constituted political persecution, whether Assange would get a fair trial in the US, and whether he was entitled to the protection offered to those who enjoy free speech and freedom of the press.

However, she blocked his extradition on one ground only: his mental health concerns.

The US, aggrieved by the ruling, appealed it. Two judges heard the appeal in the London High Court. The US argued that Judge Baraitser gave too much weight to reports about Assange’s psychological ill-health and fragility. In any event, said the US, it was willing to give a number of undertakings to the UK government that would safeguard his mental health.

For example, he would not be sent to a high-security prison and he would not be placed in solitary confinement. It also gave an undertaking that if ultimately convicted and sentenced to prison, he would be allowed to serve out his custodial sentence in his home country, Australia.

Assange’s counsel argued that the US assurances meant very little because they were subject to a claw-back clause: a promise to do something is meaningless if the promisor reserves for itself the right to break its promises.

The appeal went the way of the US, removing any impediment to his extradition to the US. The UK Home Secretary, Priti Patel, confirmed on 17 June 2022 that he would be extradited.

Assange’s counsel, in a final attempt to avoid his extradition, applied to the London High Court to appeal the balance of Judge Baraitser’s ruling that had gone against him. He was denied leave and is now appealing the decision to deny him leave. That appeal will be argued on 20 and 21 February 2024 and is widely regarded as Assange’s last hope of avoiding extradition. If the appeal fails and he is extradited, he could, if convicted, be sentenced to 175 years in prison.

The future of investigative journalism  

Many argue that if Assange is convicted of crimes under the Espionage Act, it would set a dangerous precedent for journalists and the media, especially investigative journalists. To understand this, we must understand what crimes he has been accused of committing.

The charges in the indictment usefully fall into three categories of offences: hacking, aiding and abetting, and publishing. They all arise out of the three troves of information received from Chelsea Manning in 2010.

In relation to “hacking”, the charge is that Assange conspired with Chelsea Manning to hack into the US Army computer system in order to effectively steal confidential information. He is accused of assisting her to crack passwords in order to access the information. This is a crime under US law and is called “computer intrusion”.

In relation to “aiding and abetting”, the charge is that Chelsea Manning contravened the Espionage Act and Assange assisted her. He was an accomplice. He is accused of encouraging her to steal the information.

In relation to “publishing”, the charge is that Assange was in possession of stolen confidential information belonging to the US government which he then communicated to the world at large by publishing it on WikiLeaks.

But is it a crime for a journalist to publish information given to him or her by an anonymous whistleblower who is exposing criminality?

A number of journalists and media houses are extremely concerned about the consequences that this trial may have on investigative journalism if Assange is convicted. Investigative journalists, after all, do similar work. They also sometimes receive information from anonymous whistleblowers about criminality and corruption. If deemed to be credible, they publish it and protect the anonymity of their sources.

Read more in Daily Maverick: Judge’s ruling in Julian Assange case could threaten investigative journalism in UK and around the world

There is a concern that if Assange is convicted of the crimes for which he is charged (with the exception of the hacking charge) his conviction may have a chilling effect on investigative journalism.

Assange’s critics draw a distinction between what he did at WikiLeaks and what investigative journalists do in the media. They say that investigative journalists working for publications like the New York Times would never steal state secrets.

Moreover, those journalists would thoroughly check the veracity of the information that they receive before publishing it. They say that Assange did not do this at WikiLeaks. His counsel, unsurprisingly, deny this.

First of all, they point out that there is no evidence at all that Assange was involved in hacking the US Army computer system nor that he aided and abetted Chelsea Manning to do so. They also say that WikiLeaks was not merely a repository into which anonymous whistleblowers could dump files. Assange, as the editor-in-chief, worked through the material, redacted parts of it, and published the leaks with editorial comment for context.

How does the exposure of corruption and criminality, including the commission of war crimes, published on WikiLeaks differ from the same kind of exposure published in the mainstream media? Why should Assange be treated any differently?

The reason cannot be, as some argue, that the information given to WikiLeaks was stolen, because governments will not readily volunteer information to the world about crimes that they have committed, much less war crimes. In any event, just because the incriminating information was stolen does not mean that its publication should be prohibited. The public has a right to know if their government is behaving criminally.

Investigative journalists who expose government criminality perform a vital role in democratic societies by holding governments to account. The free flow of information is the cornerstone of any properly functioning democracy and is what typically distinguishes democracies and dictatorships, the latter often hiding their atrocities behind a veil of secrecy.

The US, like South Africa, has constitutionalised freedom of expression and freedom of the press. If Julian Assange is extradited to the US, the permissible limits of investigative journalism will be tested. The result will have a profound impact on the very important and necessary work done by investigative journalists and publishers.

The importance of the Julian Assange case should not be underestimated. DM