On contact: Julian Assange extradition hearing with Marjorie Cohn

CH: In early May, the British Court decided that the extradition hearing for WikiLeaks publisher Julian Assange, originally scheduled for May 18th, would be moved to September.  This four-month delay was made after Assange's defense lawyers argued the difficulty of his receiving a fair hearing due to the restrictions posed by the COVID-19 lockdown.  Assange in declining health and showing clear signs of psychological torture, according to Nils Melzer, the UN Special Rapporteur on Torture who visited Julian Assange in prison.  He's being held in London's notorious high-security Belmarsh Prison for publishing classified documents which exposed US war crimes in Iraq and Afghanistan.  He is being indicted on 17 counts under the 1917 Espionage Act although he is not a US Citizen and WikiLeaks is not a US-based publication, charged with the unauthorized possession and dissemination of classified material, something that has been performed by countless journalists, including myself when I worked for the New York Times, and publishers over the decades.  The Assange case is a frontal assault on the First Amendment.  It will be used should Assange be extradited, tried, and sentenced in the United States where he faces the possibility of 175 years in prison, to shut down any press investigations into the centers of power.  Joining me to discuss the importance and ramifications of the Assange case is Marjorie Cohn, Professor Emerita at Thomas Jefferson School of Law where she taught from 1991 to 2016, and a former president of the National Lawyers Guild.  She edited and contributed to the books The United States and Torture, Interrogation, Incarceration, and Abuse along with Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.  So Marjorie, let's just open with a summary of what Julian and WikiLeaks did and then I'm going to ask you to explain the US case that's been brought against him.

MC: Well, in 2010 and 2011, WikiLeaks published classified documents which were provided by US Army Intelligence Analyst, Chelsea Manning.  And they contained 90,000 reports about the war in Afghanistan including the Afghan war logs which documented civilian casualties by coalition forces that more than the US military had previously reported.  WikiLeaks also published 400,000 field reports about the Iraq War, the Iraq War logs, and over 15,000 previously unreported deaths of Iraqi civilians, and the systematic murder, torture, rape, and abuse by the Iraqi army and authorities that were ignored by US Forces.  WikiLeaks also published the Guantanamo Files, which were 779 secret reports providing evidence of systemic violations of the Geneva Conventions and the Convention against Torture where the US authorities abused nearly 800 men and boys ages 14 to 89.  Perhaps the most notorious or certainly the most famous revelation that WikiLeaks made from what Manning had provided them was what is known as the collateral murder video which depicts a US apache attack helicopter killing twelve civilians and wounded two children on the ground in Baghdad in 2007.  The helicopter then fired upon and killed the people trying to rescue the wounded.  Finally, a US jeep drove over the bodies, cutting the man in half.  That constituted three separate war crimes under the Geneva Convention's The Uniform Code of Military Justice and the Army Field Manual.  Now, Julian Assange has been charged under the Espionage Act in the United States, in an indictment stemming from those revelations of war crimes.  And the Extradition Treaty, Chris, that you referred to between the United States and the UK says extradition shall not be granted if the offense for which the extradition is requested is a political offense.  So, the Trump administration is trying to get Britain to extradite Julian Assange to the United States to stand trial on this indictment under the Espionage Act.  But there's an exception for political offenses, and it's the UK courts that decide whether or not to extradite Julian Assange.  There's no clear definition of political offense but it routinely includes treason, sedition, espionage, and offenses against state power.  And exposure of war crimes is clearly a political offense so he should not be extradited.  But when he had a hearing before the judge who will ultimately make the decision about extradition, and she denied his attorneys' request for bail because he is in danger being in prison now with the COVID virus and being in solitary confinement for twenty-three hours a day, but one hour a day he's with forty other people in a confined space.  He's got pre-existing health conditions that make him even more vulnerable.  But she, at that hearing, the judged tipped her hand and said that she was not going to release him because there was a high risk of extradition.  In other words, she was tipping her hand that she is leaning toward granting the extradition.

CH: Talk about the Espionage Act, 1917, Wilson passes it.  It's not only--it's, you know, roughly the equivalent of the British Foreign Secrets Act.  It's about passing information to a hostile force, the enemy, but it's used against dissidence.  I believe it's used--it's--it was Debs' charge under the Sedition Act or the Espionage Act, probably under the Sedition Act.  But it's also used against the left.  It's--talk about how that has become the blunt instrument in the hands of the US government to go after Assange and what its original intent was.

MC: Yes.  It's an--its original intent was to prosecute spying.  And this is not spying.  What Julian Assange did was to be a journalist, to fulfill the freedom of the press which, of course, our First Amendment protects.  And yet Obama also used the Espionage Act as well.  Obama went after more whistleblowers than any other president before him, but Obama did not charge Julian Assange because he was worried that what Julian Assange and WikiLeaks did was also done by many other outlets such as the New York Times, Der Spiegel, The Guardian, Le Monde.  And they were worried that this would shill the right to report on national security matters.  So, even the Obama administration, which went after whistleblowers in an unprecedented way, didn't bring charges against Julian Assange.

CH: Well, we should be clear that the WikiLeaks material that you just outlined was published in all of these publications.  And when Obama went after--I think it was eight or nine whistleblowers, Kiriakou and others, he did use the Espionage Act which I believe, up until the Obama Administration, had only been used three times since 1917 against whistleblower including Daniel Ellsberg whose case eventually collapsed, is that correct?

MC: That is correct.  Yes.  Uh-hmm.

CH: So…

MC: Yup.  And--yup.

CH: Go ahead.

MC: Go ahead.

CH: So talk about how they've have had used the Espionage--how they've kind of crammed The Espionage Act which is, you say, you know, in essence about spying, how they are kind of legally deforming it to go after Julian.

MC: Well, they're saying that these revelation put certain confidential informants in jeopardy.  It turns out that's not really the case and therefore helped the enemy and also of course it puts the United States in a bad light because it's evidence of war crimes.  United States, you know, does not like to be seen as war criminals, even though we've seen the commission of war crimes from the Bush administration through the Obama administration and now in the--in the Trump administration.

CH: This is a bipartisan effort in part because WikiLeaks also released the Podesta emails exposing the hypocrisy of the Hillary Clinton campaign.  There's not a lot of daylight between the Trump administration and the democratic leadership, is there?

MC: Well, I--something that needs to be clarified, Chris, is that Hillary Clinton's emails were revealed through a Freedom of Information Act request filed in 2012 by the Nonprofit Citizens for Responsibility and Ethics in Washington.  They were made searchable by both WikiLeaks and The Wall Street Journal.  And the Podesta emails were retrieved by spearfishing, whatever that means, I'm not a techy, a spearfishing operation not by WikiLeaks.  Even James Comey said that WikiLeaks probably got the emails via an intermediary and WikiLeaks, as you said, was not the only publication to receive and publish the DNC documents.  Intercept, Politico, and others published them as well.  So, this whole issue of the DNC and hurting Hilary Clinton's campaign, I think, is really a red herring and people need to understand the facts surrounding that.

CH: But nevertheless, the democratic, you know, hierarchy is as dedicated to extraditing and trying Assange as the republican.  There isn't--this is not a kind of--there's no partisan debate over this, is there?

MC: No, there's not unfortunately, and there should be.  And I think that because of these myths about the DNC and Hillary Clinton's emails, the democratic leadership is upset with WikiLeaks and they don't want to be--of course, you know, they're timid anyway about things like this.  And so I think, yes, there is no pushback and that's really, really a tragedy because, as you said, this prosecution of an extradite--extradition and prosecution of Julian Assange just really is a stab in the heart of the First Amendment, Freedom of the Press, and people need to understand that.

CH: Now there was a kind of ramping up of the effort to extradite Julian when WikiLeaks published some internal documents from the CIA about their ability to read traffic.  This got Pompeo and the Trump administration to essentially begin to push with greater fervor towards the extradition.  Explain what happened there.

MC: Well, as I said, the Obama administration chose not to indict Julian Assange but the trump administration, once they saw that this was coming close to home with Pompeo, et cetera, they became--and you know that when WikiLeaks published the Hillary Clinton emails, after that actually, Trump said, "Oh, I love WikiLeaks.  Isn't WikiLeaks wonderful?"  He was the best trend of WikiLeaks.  But then when it comes closer to home and it starts to implicate Pompeo, of course, who is, of course, his Secretary of State, then he decided--well, the administration decided to go after Julian Assange.

CH: Great.  When we come back, we'll continue our conversation with Law Professor Marjorie Cohn.  Welcome back to On Contact.  We continue our conversation with legal scholar and law professor, Marjorie Cohn, about the extradition of Julian Assange.  I want to ask you about Chelsea Manning, who, although she wasn't pardoned, but she was released from this draconian sentence that she was given in a military prison, was re-jailed, tried--they tried to make her testify before a grand jury hearing to bolster their case against Julian.  What--talk about that, what's happening there and what the government is trying to do.

MC: Well, Chelsea Manning actually did not break the law even though she was--there was--there was a plea bargain and she was sentenced to thirty-five years in prison after she did seven years.  Obama released her and commuted her sentence as he was leaving office.  But Chelsea Manning, as a member of the military, had a legal duty to report war crimes.  The army field manual says every violation of the law of war is a war crime and though the law of war crimes is contained in the Geneva Conventions and the US Army Subject Schedule Number 27-1 says it's the obligation to report all violations of the law of war.  So Chelsea went to her chain of command to no avail and asked them to investigate the collateral murder video, which was very, very disturbing to her understandably.  But her superiors refused.  And the uniform code of military justice, and this is important, especially in the context now of the protests against the murder of George Floyd and possible calling out of the military and whether members of the military will refuse orders to basically fire on their federal--fellow citizens.  The Uniform Code of Military Justice sets forth the duty of a service member to obey lawful orders but that duty includes the concomitant duty to disobey unlawful orders and an order not to reveal classified information that contained evidence of war crimes would be an unlawful order and therefore Chelsea Manning had a duty to report those war crimes.  But she is still being harassed and she was called before the grand jury ostensibly investigating Julian Assange and WikiLeaks.  She stood on principle in the--in the courageous tradition of many people over the years and refused to testify and was re-jailed and actually attempted suicide.  And it was only after her suicide attempt that she was released and they said, oh, well, we're disbanding the grand jury.  Anyway, we really don't need her testimony anyway.  But she's not off the hook.  At any moment, she could be rearrested, re-harassed.  One of, as Dan Ellsberg has said so eloquently, she is one of the most courageous whistleblowers in the history of whistleblowing in the United States.  Of course, you mentioned many others and there's Edward Snowden and there are many, many others.  But she has--she did the right thing.  She reported war crimes which she had a duty to do and she has faced nothing but harassment and trauma ever since and refuses to help the government to convict Julian Assange.

CH: Why is that issue important for the government?  Some kind of evidence that Julian was complicit in the theft, why is that an important legal issue for them?

MC: Well, because WikiLeaks did what many other newspapers did as well any--and many other publications as we've said and in order to bring it out of the protected First Amendment Freedom of the Press category, they need to show that Julian Assange stole these documents, that he did something above and beyond what the New York Times, Der Spiegel, Le Monde, The Guardian did.  And they think that Chelsea Manning can help them prove that.  But she will not do that.

CH: From your observations, how would you assess what's happening in the British courtroom as a legal scholar?

MC: I think that, you know, of course the UK government works hand in glove with the United States.  They've done this for years.  They did it during the Iraq War, partners in crime I call them with the--with the US government.  And this judge, who was supposed to be fair and impartial, berates her, has already tipped her hand about a decision that she should not have made yet.  On September 7th, Julian Assange's extradition hearing will continue, could go on for a few weeks.  Evidence will be presented, witnesses will be called.  She looks like she has prejudged the case.  And--but that's not the end of it.  Once she--once that happens, there is also--there are appeals to the high court, to the--to the court of appeal, to the European Court of Human Rights, if she actually--if the judge grants extradition and says, okay, Julian Assange can be sent to the United States for trial on this indictment.  Then there are several levels of appeal within the British system and then in the European system before any extra--actual extradition would take place.  And meanwhile, and I think we need to mention this, Chris, Julian Assange's health is severely deteriorating.  And I think you did mention Nils Melzer and talked about that.  He mentioned psychological torture when Julian was in the Ecuadorian embassy in London for seven years and had some serious health problems and the UK government would not allow him to leave and go to a hospital on which aggravated these medical conditions.  His health has severely deteriorated.  There's going to be--there are going to be medical reports submitted in the next month or two about his condition, but there is another reason that Julian Assange should not be extradited aside from the political offense exception in the extradition treaty and that is the Convention against Torture and other cruel inhuman or degrading treatment or punishment which says has a provision called no way [SPEAKING IN FOREIGN LANGUAGE] which means that a person cannot be sent to another country whether it's a substantial risk of being tortured and given the fact that Chelsea Manning, when she was in custody, was kept in solitary confinement for 11 months, was stripped naked and made to appear before all the guards for inspection.  That amounted to certainly cruel, inhuman, and degrading treatment, and the special UN rapporteur said it probably amounted to torture as well, but he was not allowed to interview people that would have--would have provided evidence of that.  And so given the fact that that's the way Chelsea Manning was treated, there is a substantial likelihood that if Julian Assange were extradited to the United States, he too would be subject to torture.  And this would be particularly dangerous for him given his fragile health from the years of being denied medical attention when he was in the Ecuadorian Embassy in London.

CH: I just want to add that the judge herself has been very petty, for instance, keeping Julian locked in a glass box.  His attorneys asked that he be allowed to sit with them.  The prosecution actually didn't object.  She refused.  He's strip searched.  He has very limited contact with his lawyers.  They confiscate his legal papers, so there's a kind of subterranean unseen harassment, legal harassment that's being directed against him.

MC: There is, Chris.  And apparently, Julian Assange was so ill last week, he was unable to attend an administrative hearing in his case.  And it doesn't appear that he didn't want to attend.  It was just that he's so weakened.  I just hope he survives this.  It would be such a tragedy, it's already a tragedy, but he's in such frail health and this could go on for several months and even years and ultimately, he could even be extradited to the United States and all bets are off on what would happen to him once he got to the United States.

CH: Explain to me how legally you can justify using the Espionage Act against someone who's not a US citizen and whose publication is not US based.

MC: You can't.  That's one of the things that will be litigated.  It's--it defies legal logic.  But of course, that never stopped the Trump administration.  Any kind of logic in the law is something that's anathema to the Trump administration but you're right.  And that is one of the things will be litigated.

CH: So if Julian is extradited, tried, and sentenced, what does that mean for the press?  What does that mean for our First Amendment right?  What are the legal ramifications of his prosecution and sentencing for the rest of us?

MC: They're vast, Chris.  This just--this goes straight to the heart of what freedom of the press is all about and the First Amendment and I would hope--first of all, I hope that he doesn't get extradited, of course.  But if he does, and he stands trial, I would hope that people like Charlie Savage who, during the Obama administration wrote about how Julian Assange should not be prosecuted because it would violate freedom of the press and it would violate--it would actually put the New York Times and other publications in jeopardy as well for doing just exactly what WikiLeaks did.  I would hope that other journalists would speak out and mount pressure and organize against this prosecution, this persecution because they know that they could be next, that this is really, really dangerous for freedom of the press and that's why this is such a big case.  Yes, it's horrible the way he's been treated.  You know, and falsely charged with charges from--not charged but being investigated from Sweden, by Sweden for charges that turned out to be totally spurious.  The witnesses later said that they were--they were basically forced to make these accusations.  Those charges were dropped.  He has been harassed and harassed and harassed and tortured but if he comes to this country and if he stands trial, if he comes to this country, he would stand trial, and is convicted, this would be devastating to the freedom of press and everybody knows that, every journalist knows that.

CH: So talk about--so let's, you know, if there is a conviction, it does set a legal precedent which is new.  And what does it allow the government to do then against let's say a publication like the New York Times that publishes classified material which I, in my 15 years at the New York Times, did as most investigative journalists of the Times did.

MC: Right.  Well, first of all, if he's convicted, if he's tried, if he's extradited, if he's tried, if he's convicted, there will be an appeal.  And it will go through the Courts of Appeals and I think probably go up to the Supreme Court.  And of course it depends on who's sitting on the Supreme Court at the time.  Supreme Court now is very, very precariously balanced, tipping to the right.  If Trump gets another term, he will solidify that to make a 7-2 right wing majority for decades to come, so it depends on who's sitting on the Supreme Court.  So then, once this case is published and decided by the higher courts, then there is a precedent for whoever is in power at the time, administration at the time, to use that precedent assuming that he loses his appeals, Julian Assange loses his appeals to go after journalists and outfits like the New York Times should be very, very concerned and of course this is a political prosecution.  A lot of it depends upon who's in power, what the publications are publishing what critical of the administration.  It will be used as a political tool to go after journalists.  And of course we know that Trump has said that the press is the enemy of the people, which is one of the most dangerous statements ever made by a US President.  The ramifications are vast.

CH: Great.  Thank you.  That was Marjorie Cohn, legal scholar and professor on Julian Assange's extradition.  Thanks, Marjorie.

MC: Thank you, Chris.