Biden’s Choice on Julian Assange and the First Amendment

When Joe Biden becomes president of the United States on January 20, a historic opportunity awaits him to demonstrate America’s commitment to the First Amendment. He can, in a stroke, reverse four years of White House persecution of journalism by withdrawing the application to extradite Julian Assange from Britain to the U.S. This would be in line with the departures from Trump policies Biden is proposing on health care, environmental protection, and tax fairness. Assange’s liberty represents the liberty of all journalists and publishers whose job is to expose government and corporate criminality without fear of prosecution. We need and deserve to be protected against government control of the press.

By removing the 1917 Espionage Act charges against Assange, Biden would be adhering to the precedent established by the administration in which he served for eight years as vice president. President Barack Obama’s Department of Justice investigated Assange and WikiLeaks for three years until 2013 before deciding, in the words of University of Maryland journalism professor Mark Feldstein, “to follow established precedent and not bring charges against Assange or any of the newspapers that published the documents.” Equal application of the law would have required the DOJ to prosecute media outlets, including the New York Times, that had as large a hand in publicizing war crimes as did Assange himself. If prosecutors put all the editors, publishers, and scholars who disseminated WikiLeaks materials in the dock, there would not be a courtroom anywhere in America big enough to hold the trial. Obama decided against it, knowing it would represent an unprecedented assault on freedoms Americans hold dear.

President Barack Obama’s January 2017 pardon of Chelsea Manning, the source for WikiLeaks’s revelation that American forces in Iraq were involved in murder and torture, is another indication that the Trump Justice Department’s prosecution of Assange was an aberration and not an irreversible policy to threaten journalists and whistleblowers everywhere.

Although the Obama administration prosecuted more journalists under the Espionage Act than all its predecessors combined, it pulled its punches in cases that would not withstand scrutiny. The DOJ investigated and wiretapped Fox News journalist James Rosen for publishing information on North Korean nuclear policy in 2013 from State Department security adviser Stephen Jin-Woo Kim, but it avoided a contentious and high-profile trial by declining to prosecute him. Kim pleaded guilty and received a 13-year sentence.

Biden has signaled his intention to return the U.S. to international cooperation, revoking Trump’s withdrawal from the World Health Organization, the Paris Agreement on climate change, and the Joint Comprehensive Plan of Action to control Iran’s nuclear program. America’s return to the community of law-abiding nations would be enhanced further by adhering to judgements from the United Nations Working Group on Arbitrary Detention and the Inter-American Court of Human Rights calling for Assange’s immediate release. Exonerating Assange would also underscore American dedication to Article 19 of the 1948 Universal Declaration of Human Rights, among whose drafters was American former First Lady Eleanor Roosevelt: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (Italics mine.) Assange and WikiLeaks received and imparted information vital to the public interest, as hundreds of media outlets, legal experts, and human rights advocates have attested.

It will take courage for Biden to retract the allegation he made on “Meet the Press” in 2010: “I would argue it [WikiLeaks] is closer to being a high-tech terrorist than the Pentagon Papers.” Yet voters chose him over Donald Trump this month in the hope that he would show courage. Biden also said in 2010 that the WikiLeaks revelations had endangered the lives of intelligence sources. When WikiLeaks released the Iraq War logs and video of an American helicopter crew gunning down civilians, including two Reuters journalists, Defense Secretary Robert Gates conceded, “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.” The source who provided the Pentagon Papers on America’s war in Vietnam to the New York Times and Washington Post, Daniel Ellsberg, recently stated that government officials “have not been able to identify a single person at risk of death, incarceration or physical harm.”

When the Nixon administration prosecuted Ellsberg for espionage in 1973, Judge William Byrne dismissed the case “with prejudice” against the government for infringing Ellsberg’s right to confidential communication with his psychiatrist. The Trump administration has illegally obtained Assange’s privileged discussions with his doctors and lawyers, tainting its case as much as Nixon’s against Ellsberg. Whether Trump-appointed justices will defend the law as scrupulously as Byrne need not be put to the test.

If extradited, Assange risks a 170-year sentence in the “Alcatraz of the Rockies,” otherwise known as the United States Penitentiary Administrative Maximum Facility in Florence, Colorado. Its harsh regime would see him in permanent solitary confinement in a concrete box cell with a window four inches wide, with six bed checks a day and one hour of exercise in an outdoor cage. His fellow inmates would be “Unabomber” Ted Kaczynski, Boston Marathon bomber Dzhokhar Tsarnaev, FBI-agent-turned-Russian-spy Robert Hanssen, Oklahoma City co-bomber Terry Nichols, and Mexican drug baron Joaquín “El Chapo” Guzmán Loera.

Trump may contend that journalists and publishers are no different from terrorists, serial killers, and narcotics traffickers. Biden is free to take another view. Does he want to begin his term of office carrying the burden of that Trump legacy? Assange stands in the tradition of Carl Bernstein and Bob Woodward during Watergate, Ellsberg with the Pentagon Papers, Seymour Hersh over the My Lai massacre, Sydney Schanberg on America’s massive bombardment of Cambodia, plus hundreds of others who, vilified at the time, have been vindicated by the judgment of history.

Those who insist Assange must pay for his actions can be satisfied that he has already suffered severe punishment. He has spent the past 10 years under confinement: first under house arrest, then as a political refugee in Ecuador’s embassy in London, and for the past year and a half in Belmarsh, a high-security prison outside of London, under conditions that U.N. Rapporteur on Torture Nils Melzer called “psychological torture.” Assange’s health has deteriorated to the point that 117 physicians wrote to British medical journal The Lancet last February that he is suffering “psychological torture and medical neglect.” Expert medical witnesses who have examined Assange at Belmarsh testified at his extradition hearing in September that, if extradition proceeds, his suicide is inevitable.

The American Civil Liberties Union, Amnesty International, the Committee to Protect Journalists, Reporters Without Borders, and other defenders of free expression have repeatedly called for Assange’s immediate release. Ellsberg issued a warning to journalists and publishers about Assange: “If he is extradited to the U.S. and convicted, he will not be the last.”

Biden’s choice on January 20 is between the opposite courses taken by his two immediate predecessors, Obama and Trump. His conscience should tell him which to follow.