Justice Is Not Blind

Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University.  Here is his column about Assange.

JT is on target.

Assange's prosecution is more likely a matter of revenge and discouraging future whistle blowing than justice.
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“He is our property.” Those celebratory words of Sen. Joe Manchin, D-W.Va., came on CNN soon after the news of the arrest of WikiLeaks founder Julian Assange at the Ecuadorian Embassy in London.

It was a sentiment shared by virtually everyone in Washington from Congress to the intelligence services. Assange committed the unpardonable sins of embarrassing the establishment — from members of Congress to intelligence officials to the news media. And he will now be punished for our sins. Despite having significant constitutional arguments to be made, it is likely that he will be stripped of those defenses and even barred from raising the overall context of his actions in federal court. What could be the most important free speech and free press case in our history could well be reduced to the scope and substance of an unauthorized computer access case.

For years, the public has debated what Assange is: journalist, whistleblower, foreign agent, dupe. The problem is that Assange is first and foremost a publisher.

Moreover, he was doing something that is usually heralded in the news media. WikiLeaks disclosed disclosed controversial intelligence and military operations. It later published emails that showed that the Democratic National Committee and the campaign of Hillary Clinton lied in various statements to the public, including the rigging of the primary for her nomination. No one has argued that any of these emails were false. They were embarrassing. Of course, there is not crime of embarrassing the establishment, but that is merely a technicality.

The criminal charge against Assange filed in a federal court was crafted to circumvent the obvious constitutional problems in prosecuting him. The charge is revealing. He is charged with a single count for his alleged involvement in the hacking operation of Chelsea Manning in 2010.

By alleging that Assange actively played a role in the hacking operation, the government is seeking to portray him as part of the theft rather than the distribution of the information. The prosecutors say Assange helped Manning secure a password to gain access to additional information. If true, that would be a step that most news organizations would not take.

It’s likely there will be a superseding indictment once Assange is successfully extradited to the United States. Moreover, the Justice Department is likely to move aggressively to strip Assange of his core defenses. Through what is called a motion in limine, the government will ask the court to declare that the disclosure of intelligence controversies is immaterial.

This would leave Assange with only the ability to challenge whether he helped with passwords and little or no opportunity to present evidence of his motivations or the threat to privacy. For the jurors, they could simply be faced with some Australian guy who helped with passwords in hacking national security information. It would be like trying a man for breaking and entering while barring evidence that the house was on fire and he thought he was rescuing people instead.

The key to prosecuting Assange has always been to punish him without again embarrassing the powerful figures made mockeries by his disclosures. That means to keep him from discussing how the U.S. government concealed alleged war crimes and huge civilian losses, the type of disclosures that were made in the famous Pentagon Papers case. He cannot discuss how Democratic and Republican members either were complicit or incompetent in their oversight. He cannot discuss how the public was lied to about the program.

A glimpse of that artificial scope was seen within minutes of the arrest. CNN brought on its national security analyst, James Clapper, former director of national intelligence. CNN never mentioned that Clapper was accused of perjury in denying the existence of the National Security Agency surveillance program and was personally implicated in the scandal that WikiLeaks triggered.

Clapper was asked directly before Congress, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper responded, “No, sir. … Not wittingly.” Later, Clapper said his testimony was “the least untruthful” statement he could make.

That would still make it a lie, of course, but this is Washington and people like Clapper are untouchable. In the view of the establishment, Assange is the problem.

So on CNN, Clapper was allowed to explain (without any hint of self-awareness or contradiction) that Assange has “caused us all kinds of grief in the intelligence community.” Indeed, few people seriously believe that the government is aggrieved about password protection. The grief was the disclosure operations and controversies long unknown to the American people. Assange will be convicted of the felony of causing embarrassment in the first degree.

Notably, no one went to jail or was fired for the surveillance programs. Those in charge of failed congressional oversight were reelected. Clapper was never charged with perjury. Even figures shown to have lied in the Clinton emails, like former CNN commentator Donna Brazile (who lied about giving Clinton’s campaign questions in advance of the presidential debates), are now back on television. Assange, however, could well do time.

With Assange’s extradition, all will be well again in Washington. As Sen. Manchin declared, Assange is their “property” and will be punished for his sins. Once he is hoisted as a wretch, few will again entertain such hubris in the future.