Sunday, February 26, 2012, By Jennifer Robinson
Professor blog proudly presents a new great contribution by Jennifer Robinson, the acclaimed media and human rights lawyer. She also is a legal adviser of WikiLeaks founder – editor and journalist Julian Assange. Jennifer Robinson participated in these days in the forum at the University of Technology in Sydney “Don’t shoot the messenger: WikiLeaks, Assange and Democracy”. We publish here a transcription of her lecture at the event, in agreement with Jennifer. We acknowledge on behalf of the author that she has not reviewed the transcription published here, which is credited to Green Left. The event on February 17 at the University of Technology, Sydney, counted also with the participation of human-rights advocate Christine Assange, Greens Senator Scott Ludlum, and historian Humphrey McQueen. Jennifer Robinson is a guest columnist in Professors blog./ Prof. Marcello Ferrada-Noli
I wanted to start this evening with a Jewish curse that someone told me recently: “May you be involved in a lawsuit in which you know you are right” [laughter].
No one knows the meaning of this curse any better than Julian Assange and his colleagues at WikiLeaks. Assange has been accused of many, many things. Everything from being anti-Semitic to being a Mossad agent — how you could be the two at the same time I don’t know.
US presidential candidates in the current presidential race in the US have called for his assassination.
The current US vice-president has called him a “high-tech terrorist”. Can you imagine inserting into that sentence [Guardian editor] Alan Rusbridger is a “high-tech terrorist”? [New York Times editor] Bill Keller is a “high-tech terrorist”?
Our own prime minister [Julia Gillard] has accused him of illegal conduct — prematurely, prejudicially and prior to announcing a full-scale criminal investigation, which of course resulted in the outcome that the Australian Federal Police disagreed with her.
US government propaganda, shamefully echoed by our own prime minister, accused WikiLeaks of publishing in breach of US law. But they are wrong.
What Julian does with WikiLeaks is not only right, it is morally right, it is ethically right and, as I’ll explain this evening, it is legally right.
I was asked at a seminar earlier this week, how is it that you do what you do defending him? It must be so stressful. You are under surveillance. You have a lot of these threats made, which I don’t go into publicly.
And my response was, how do you think it is for him? Imagine what he is going through. And the reason he keeps doing what he does and does so bravely is because he knows he’s right.
His colleagues at WikiLeaks stand by him because they know he’s right. And I continue to defend him because I know he’s right.
And all of you here — and I’m glad Scott [Ludlum] said that — I hope the people watching this online can understand just how full this room is, all of you here are here because you know it’s right to support him and to support WikiLeaks.
But as I said, many accusations are about legality. Thankfully there are some sensible politicians in this country and they have denied what our prime minister said wrongfully, [Liberal shadow cabinet member] Malcolm Turnbull included, that it is not a crime in this country to publish as [Assange] has down. [Liberal shadow attorney general] George Brandis included.
And yet Assange and WikiLeaks are beleaguered by lawsuits — lawsuits that threaten his liberty and which threaten the contribution and activities of WikiLeaks.
These lawsuits are a significant drain on their financial resources. Assange faces potential extradition to the US to face criminal prosecution for his publishing activities: publishing activities protected by the First Amendment [to the US constitution].
WikiLeaks is being financially strangled, cut off from supporter donations by a worldwide financial blockade by the biggest financial companies the world knows: Visa, Mastercard, Paypal and others. And, of course, Bank of America.
All of these cases are based on false allegations of illegal conduct. And yet, if extradited to the US, Julian Assange may face, and is likely to face in the event it happens, years in federal prison while we fight that battle, if necessary to the Supreme Court, where he will win. What will happen in the meantime?
Meanwhile, the financial companies continue to prevent you from donating to WikiLeaks. Prominent academics agree with us that there is no legal basis for that blockade. They claim WikiLeaks either acts in breach of law — of any jurisdiction in the world, they don’t care to specify — or they encourage the breach of law. I’m going to come back to that point.
What these private companies are doing — and they are achieving what the government could not do themselves because of the First Amendment — they are effectively censoring WikiLeaks.
In November 2011, [WikiLeaks] shut down their publishing activities because of the financial blockade. They do not have the resources to continue. If the government were to implement that kind of ban it would be challenged constitutionally.
But instead, we have these massive private corporations imposing WikiLeaks censorship. And what can we do to remove it? It requires the coordination of lawyers in multiple jurisdictions around the world, intense financial empirical analysis of the transactions involved, technical and legal analysis of the transactions in terms of service. It is a huge job.
It requires resources and time, but particularly resources that WikiLeaks simply does not have. And why? Because of the blockade.
Each of these cases go to the heart of our democracy. They strike at the heart of free speech protections that are designed to ensure that those in power are kept accountable.
When this event was billed for this evening, I was told that I would need to update you on the court hearing in the UK and Julian’s potential extradition to Sweden. And I won’t disappoint so I will give you a brief overview, but I’d like to focus more on what we can do about the financial blockade and Julian’s potential extradition to the US.
As you know, and you would have seen in the news, two weeks ago we had a two-day hearing in the Supreme Court, which was Julian’s final appeal against extradition to Sweden.
That case is not about the facts about what happened in Sweden. It’s about a purely technical matter about the validity of a European Arrest Warrant and the way in which the framework decision at the EU was interpreted.
It is narrow to the point where we are at a very technical argument. What that will mean if Julian loses is that any person can be extradited from the UK to anywhere in Europe, without charge, without evidence, by any prosecutor, anywhere, and without proper judicial oversight. These are the kinds of laws you can thank 9/11 for.
But irrespective of the outcome, we expect a decision any time now. Any time in the next, potentially, month. Julian’s lead lawyer, Gareth Peirce, who is a very well-respected human rights lawyer in the UK and has [represented] Guantanamo Bay detainees, has said that irrespective of the outcome, if Julian walks out free after the decision has been handed down it is highly likely that he will be served immediately with an extradition request from the US.
The syncronisation of these extradition requests between states is very common. As we’ve also been concerned with since the beginning, if he is extradited to Sweden — and lets not forget what will happen to him when he gets there — he will be put into incommunicado detention where he will have no access to visitors. He’ll only be allowed to see his Swedish lawyers until such time as he is brought before a court.
The court hearing will be heard behind closed doors by a judge sitting with three lay jurors who are appointed by political parties. Once matters are resolved in Sweden, he faces a similar fate: an extradition request from the US.
Scott [Ludlum] mentioned before what we can do if we managed to get him back to Australia. I certainly hope that we will be able to do that. But it’s very unlikely that will happen before the US seeks his extradition. Why? Because once he is back here, it will come between the US-Australia alliance, and you and the electorate.
Politicians will be faced with a choice. The choice they face now, but they aren’t feeling it, which is between losing their seats and extraditing him to the US. Because Australians will not stand for it.
How would you feel if Julian was to be extradited to the US? I won’t repeat the expletives for those watching on the internet. [laughter]
But I want to come back to this concept of legality and illegality with what WikiLeaks does, because this is at the heart of the legal prosecution and persecution.
In a democracy, as we’ve heard earlier, free speech is essential. And we have laws that protect free speech and protect journalists and journalists’ sources in order to ensure that the source of information that we receive through WikiLeaks, in the public interest, that demonstrate the wrongdoings of those in power, will continue to be released to journalists.
Because if we don’t have that protection, then people, knowing they’ll be subject to prosecution, aren’t going to share the information and that undermines the entire system.
I did a little survey of my class of students here in Australia, which was actually a test of what they knew of WikiLeaks. And quite a few of them actually said, “well what they are doing is illegal”. I think we need to have a bit of an analysis of free speech legal protections.
First of all, journalists have a duty to protect their sources and this is an inherent part of the right to free speech. Why do you think the US government has said that WikiLeaks has published material it has received in “breach of US law”? Because the initial disclosure may, or may not, have been disclosed in breach of law.
Once it is received by a publishing organisation or a journalist and they publish, that publication is protected by law. Does WikiLeaks do anything different to mainstream media publications and what has been done for many, many years?
They receive documents from anonymous sources, and they publish them. What WikiLeaks does is provide a level of protection that we have not seen before and is not provided by law, it is provided through technology rather than law: the ability to keep sources anonymous.
In this jurisdiction and in this jurisdiction around the world, journalists can still be prosecuted for contempt for failing to disclose to courts their sources. But what happens if you have technology like WikiLeaks that puts a buffer in place. It essentially means — try prosecuting a journalist who doesn’t know who their source is. You can’t force them to disclose what he or she doesn’t know.
[Human rights laywer] Geoffrey Robertson QC last night at a conference in Paris said you could waterboard Julian all day long, but he doesn’t know who his sources are.
WikiLeaks does nothing different to what other media organisations have done, but they do it better, and they do it safer.
So what are these allegations of illegal conduct? Prominent academics around the world would agree with this analysis, the publication of documents received from sources, irrespective of how that material was gained, is protected by the First Amendment.
So on what basis could Julian be prosecuted in the US, people say? We know for a fact, from freedom of information documents, that the criminal investigation announced by [US Attorney General] Eric Holder, [we know this from] our own ambassador who wrote to our government, is unprecedented in scale and size. Unprecedented.
The US government has been actively investigating the ways it can prosecute Julian since December 2010 and is refusing to rule out prosecuting him, refusing to give out any information. What we do know is what I saw in the Bradley Manning hearing just before Christmas.
Bradley Manning is, of course, the alleged source of the WikiLeaks documents. And I think Australians need only look to how he is being treated within US prisons to understand what will happen to Julian if he ends up in the US.
Bradley Manning has been subjected to inhuman and degrading treatment in breach of international standards, causing international outrage. At the hearing in the US just before Christmas, it was Bradley Manning’s committal hearing, his defense lawyer Mr [David E.] Coombs stood up in opening and sought to recuse the investigating officer. Why? Because he is an employee of the department of justice.
He sought recuse him on the grounds that the department of justice had an ongoing criminal investigation into Julian Assange. Therefore his employer had an interest in Bradley Manning making a plea bargain in order to criminally implicate Assange.
In closing, he said that the way in which Bradley Manning has been treated, the way in which he has been overcharged — lets not forget that Bradley Manning is facing 150 years plus life in prison, there is a potential death penalty for the aiding the enemy charge that was introduced just six months before the pretrial hearing — that overcharging is designed, in Mr Coombs’ opinion in his submissions before the court, to put pressure on Bradley Manning to implicate Assange.
In that hearing there were three nameless faces of government officials with security badges sitting opposite me, who refused to identify themselves either to journalists or to us when we asked them what it was explicitly they were doing there.
We were later able to identify one of them as the department of justice lawyer responsible for the Twitter subpoenas.
I had a rather interesting run-in with the US Attorney General, accidentally and by surprise, at the Sundance film festival. [laughter]
He was sitting in a theatre not much bigger than this about two rows behind me. And when I realised he was there I had to ask him the question. So far all of our appeals for information about the Bradley Manning hearing for access to evidence to be able to verify the very serious allegations that are being made — and including their statements of connections between Manning and Julian, which we cannot test because we do not have access to the information, we can’t verify any of the allegations being made about Julian. — all of them have failed.
So I asked him, are you going to prosecute Julian Assange. And he said: “We’ll see.” We’ll see.
Now the financial blockade in and of itself is a whole other issue, but it links back to the same question of this legality or illegality of conduct. The companies have refused to specify on what grounds they blocked WikiLeaks. In the meantime, they have essentially wiped out all of their income: all of it.