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Tuesday 30 April 2019

free speech

The Assange enigma

  • WikiLeaks has published significant global exclusives, but working with founder Julian Assange was never easy as he swung from strategic focus to volcanic rage.
  • His arrest and the start of extradition proceedings has been greeted with glee by many, but there is a danger the charge against him criminalises the process of news gathering.
  • Battles for liberty and free speech have often been won by unsavoury characters – the digital age will throw up others we may not like, but may have to defend.

By Alan Rusbridger

Flanked by two lawyers, he barged unannounced into my office – pale-faced and sweating, with a racking cough and full of cold fury.

Julian Assange in full flight of self-righteous anger is a Quixotic, at times volcanic, force.

Over the course of the next seven hours the WikiLeaks founder switched from high-decibel rants to quiet menace. At one moment he was erupting in bitter rage, the next intoning in strange, quasi-Dickensian modulations (the new year was “the Christian calendar”: Le Monde and El Pais should be involved in our joint enterprise because they were from “Romance languages”). An hour of incoherent shouting would be followed by an hour of plain-speaking – composed, focused and strategic.

That night the wrangling and the tantrums continued until 2am.

This was November 2010. By then The Guardian and WikiLeaks had been uneasy partners for the best part of six months and had jointly – along with Der Spiegel and The New York Times – published the first cache of documents provided by Chelsea (formerly Bradley) Manning. We had produced careful and, we felt, important work. Journalists from around the world were begging to see the material we had.

But none of the going was easy. The collaboration between the traditional news organisations and this new digital entity, WikiLeaks, bristled with conceptual contradictions, suspicion and misunderstanding, not least because its founder/editor had a chameleon-like ability to change colour and identity.

Assange was a publisher, but also a (kind of) source. He could be a disciplined editor, but was also, at heart, an information anarchist. He was a secretive hacker, but also a camera-loving performer. He hugged the documents close, but also acted as a leaks impresario – sharing them, or even apparently selling them, when it suited him. He wanted to be thought of as a journalist, but was also a political activist. We were large global publishing companies. Assange led a nomadic existence, travelling around with two computers and three pairs of socks.

It was, at the time, the biggest leak of secret governmental material in history. Nearly 40 years earlier Daniel Ellsberg, a young military analyst, had turned whistleblower with the release of part of the 7,000-page Pentagon Papers documenting the inside story of US policy-making up to the Vietnam War. Assange was walking around with a memory stick holding nearly 850,000 documents about the conduct of the Iraq and Afghan campaigns and the habits of US diplomacy.

Assange holds up a copy of the Guardian newspaper

Nothing about working on the Afghan war logs was simple.  Mainstream media journalists all agreed that we would publish only a relatively limited number of documents, and would redact them to minimise potential harm to innocent parties. Assange, by contrast, wanted to release the majority, if not all, the documents (as, eventually, he did).

Challenged one night over dinner as to the possible repercussions for named individuals, Assange shrugged: “Well, they’re informants. So, if they get killed they’ve got it coming.” (He was, in time, to revise this view – several times – and also to deny having made this remark.)

But by the time Assange stormed into my office, the relationship between old and new media had become even more complex. In August 2010 two Swedish women had claimed Assange had sexually violated them: one accused him of rape, the other of molestation. WikiLeaks initially wanted the world to believe the allegations were a case of dirty tricks. Our own inquiries found no evidence to support such a theory. Assange might be a publishing partner, but we were duty bound to report the women’s complaints in a straightforward way. To Assange, this was a form of betrayal.

Nevertheless, by November, the original publishing parties were ready to start working on the third cache of documents – the so-called diplomatic cables. We were alarmed to find WikiLeaks had shared this material with a freelance journalist who wanted to partner with others. Meanwhile Assange – disgusted with The New York Times, partly after they ran an unflattering profile of him – was threatening to take his copy of the documents to The Washington Post.

Assange thought of us as “greedy, reckless, damn-them-all bandits”. He saw me, he later recalled, as a “lily-livered git…[with] eyes rolling around the room like marbles on a pogo stick”. In his eyes – at least sometimes – redaction was a form of cowardice. Editing was a form of censorship. The great whistleblower was reduced to warning us that his legal team would sue us for the loss of WikiLeaks’ “financial assets”.

We were not alone in struggling with the implications of what it meant to work with WikiLeaks. Julian Assange has a unique talent for making enemies. A couple of months after our showdown with his lawyers he entered into a deal with 40 publishers around the world to work with a ghost writer, Andrew O’Hagan, to produce an autobiography in a deal worth an estimated $2.5m.

But it became apparent to O’Hagan that Assange – by then living under a form of house arrest in Norfolk – had no intention of seeing such a book published, no matter that he had already pocketed £500,000 of the advance.

Night after night O’Hagan tried to coax material out of him, only for Assange to rant on about his hatred – not for his enemies, but for those who had been willing, at least initially, to give him the benefit of the doubt. “The Guardian was an enemy because he’d ‘given’ them something and they hadn’t toed the line,” O’Hagan wrote in an account of his time with Assange, “whereas the Daily Mail was almost respected for finding him entirely abominable… Julian treated his supporters as subjects, and learned nothing when they walked away.”

In the end Assange fell out with his ghost writer, his publisher, the people who put sureties up for his bail, his lawyers and many others. O’Hagan concluded: “He is thin-skinned, conspiratorial, untruthful, narcissistic, and he thinks he owns the material he conduits. It may turn out that Julian is not Daniel Ellsberg or [the 18th-century journalist and campaigner] John Wilkes, but [the fictional press baron in Orson Welles’s 1941 film] Charles Foster Kane, abusive and monstrous in his pursuit of the truth that interests him, and a man who, it turns out, was motivated all the while not by high principles but by a deep sentimental wound. Perhaps we won’t know until the final frames of the movie.”

Orson Welles takes the lead role in his film ‘Citizen Kane’

As for us, in November 2010 we somehow patched things up sufficiently to keep going until the end of the Christian calendar before going our separate ways. Our partnership, though troubled, had produced what Vanity Fair called “by any standards one of the greatest journalistic scoops of the last 30 years… they have changed the way people think about how the world is run.”

Of course, history has a way of mocking perspective. But at the time, the publications were hailed as ground-breaking and consequential. “In one fell swoop,” said Foreign Policy, “the candour of the cables released by WikiLeaks did more for Arab democracy than decades of backstage US diplomacy.”

To O’Hagan “it felt, to me… but also to many others that this might turn out to be the greatest contribution to democracy since the end of the Cold War. A new kind of openness suddenly looked possible: technology might allow people to watch their watchers, at last, and to inspect the secrets being kept, supposedly in our name, and to expose fraud and exploitation wherever it was encountered.”

Mercurial, dislikeable, erratic, narcissistic: Assange is all those things. But free speech is a principle, not a person. And when principles are threatened we have to set aside our personal biases and consider what’s at stake.

Shortly after breakfast on 11 April this year, a significant cohort of British police officers entered the Ecuadorian Embassy in London and a little  later escorted a struggling Assange from the place that had been his refuge for the past seven years. With his unkempt hair and long white beard, he looked every inch the biblical prophet.

Or, indeed, a hermit.

Assange addresses media at the Ecuadorian Embassy on May 19, 2017

For the first time the rumoured deliberations of a grand jury became official as the US Department of Justice published its indictment of Assange in anticipation of extraditing him to the US to face trial and the prospect of up to five years in jail.

The glee in certain quarters was only to be expected. He had it coming – this vain man who had betrayed secrets; placed lives in danger; sexually exploited women; and apparently conspired with a gangster state to get a lying sociopath into the White House. Be our guest, ran many commentaries: lock him up and throw away the key.

But when the law is engaged against the publication of truthful material we should – surely? – be a bit more discerning.

First, consider what the indictment does not cover. There is nothing  about anything Assange may or may not have done to assist Russian military intelligence (GRU) to distribute emails stolen from Democratic party organisations and the Clinton campaign chair, John Podesta, in the run-up to the 2016 election.

Trump clearly benefited from the 2016 leaks and seems to have had advance warning of when WikiLeaks would publish hacked documents damaging to Hillary Clinton. The former FBI director Robert Mueller’s report found direct links between Donald Jr and the organisation, and Trump himself mentioned WikiLeaks 164 times in the final month of the campaign. So this administration may not be over keen on prosecuting Assange for anything he did in 2016.

The indictment is more narrowly focused on March 2010 when Assange was in contact with Manning, then an intelligence analyst in the US Army. Manning – disturbed by many of the things she came across in the course of her work – had already downloaded hundreds of thousands of documents and supplied them to Assange.

Let us, for the moment, think of Assange as a journalist. What did he do that was so reprehensible that he should now be locked away for up to five years?

The indictment accuses him of two forms of conspiracy: trying to obtain (yet more) secret information; and attempting to access a US government computer.

The first charge should surely not give journalists much pause for deliberation. Any reporter or editor worth their salt spends their lives looking for secret information – and may well do exactly what Assange did with Manning: encourage a source to come up with yet more. The test is whether any public interest is served by the publication of the information.

Army Private Bradley Manning, now Chelsea Manning at his hearing February 23, 2012 in Fort Meade, Maryland

The DOJ’s indictment – highlighted in a press release – quotes an exchange between the two conspirators in which Manning tells Assange: “After this upload, that’s all I really have got left.” To which Assange replies: “Curious eyes never run dry in my experience.”

Good for Assange, you might think. This was, for instance, how he obtained the “collateral murder” video filmed from an Apache military camera as US army pilots shot up a dozen innocent bystanders in Baghdad, including two Reuters journalists, in July 2007.

Reuters had tried, but failed, to use Freedom of Information requests to get that footage. When it was published by WikiLeaks in April 2010 news organisations the world over ran the compelling evidence of possibly illegal lethality by US soldiers. Embarrassing to the US government? Of course. Public interest in publishing? You bet.

Or what about the story published by The Guardian in autumn 2010, documenting how the US authorities in Iraq had failed to investigate hundreds of reports of detainees being abused, tortured, raped and even murdered by soldiers and police working with coalition forces?

The war logs so assiduously leaked by Manning and received by Assange disclosed hundreds of grim reports, often supported by medical evidence, describing prisoners who had been shackled, blindfolded, hung from the ceiling by their wrists or ankles and then subjected to relentless whipping, punching, kicking, electric shocks and other tortures. Six of the reports end with the apparent death of an abused detainee.

Some of the reports accused US, British and other coalition troops of assaulting prisoners but most of the incidents involved Iraqi police and soldiers, including named senior officers, some of whom were quoted attempting to justify the violence. The reports suggested that the abuse of detainees by Iraqi forces was systematic – and normally unpunished. The logs revealed that the coalition had a formal policy not to investigate any allegation of abuse involving Iraqi troops or police.

Was that a story that any half-decent mainstream newspaper would have run if they had a sniff of it? Of course. Would any editor with the slightest sense of this material have urged a source to come up with more documents or evidence? In the autumn of 2010 we literally could not cope with requests from editors and reporters the world over who wanted to look at these documents to see what they contained about their own regions.

So – surely – the community of “proper” journalists would stand alongside anyone accused of asking a source to come up with as much of such material as they could. Isn’t that what the most legendary investigative journalists do? Seymour Hersh, famous for his revelations of the My Lai massacre of 1968, spent nearly six decades burrowing into the most secret parts of the state and freely admits he obtains classified information by a process of “seduction”. Without the ability to do that, “it’s the end of national security reporting”.

An American soldier fires during the My Lai massacre, March 1968

What about the second charge: conspiracy to commit computer intrusion? It pays to read the wording of the grand jury indictment. Manning had by this stage already downloaded hundreds of thousands of documents using her log-in at the Department of Defense. The two conspirators were particularly interested in a trove of Guantanamo Bay detainee assessment briefs. I think many editors would share that interest.

Around 8 March 2010 the two had a conversation about whether Assange could help Manning log in to the computer she was already using with a different username. “Such a measure,” reads the indictment at paragraph 10, “would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.”

On the face of it – according to the DOJ’s own framing of his actions – this describes the behaviour of a reporter seeking to help a source protect her identity. Is anyone in the world of mainstream journalism against that? Isn’t that what any “proper” journalist would do?

Bob Woodward (left) and Carl Bernstein at the Washington Post

How does the hero of Watergate, Bob Woodward, work? In the wake of the Assange charges another whistleblower, Edward Snowden, tweeted that Woodward had stated publicly that he, Woodward, would have advised him to remain in place and act as a mole. Woodward told CNN’s Larry King in 2013 that he would have worked with Snowden to conceal his identity: “I would have said to him ‘let’s not reveal who you are. Let’s make you a protected source and give me time with this data and let’s sort it out and present it in a coherent way’.”

Good enough for the much-garlanded Woodward but not for Assange?

The indictment goes on to describe in some detail other things that Manning and Assange engaged in which a great many reporters do when dealing with sources:

  • Assange and Manning communicated with each other through an online encrypted service (par 18)
  • They “took measures” to conceal Manning as a source, including by removing metadata (eg usernames) and deleting chat logs (par 19)
  • The reporter encouraged his source to provide “information and records” (par 20)
  • The reporter and source used a special folder on a cloud drop box to transmit information (par 21).

Much of this was known to the DOJ years ago and formed part of the case against Manning in December 2011. It was known to the White House in January 2017 when President Obama commuted Manning’s 35-year prison sentence to seven years.

It is relevant to remind ourselves that the grand jury looking into WikiLeaks and Manning was first empanelled in spring 2011, so the DOJ has so far had up to eight years to frame the most damning charges against Assange. But – a note of caution – it is always possible that the DOJ will add to this charge sheet before the formal hearing to extradite Assange. Maybe they will load in additional charges relating to any conspiracies with the GRU in 2016. They could accuse him of endangering life by subsequently publishing huge amounts of material without redaction.

Those are bridges to cross should we ever come to them. For the moment, we have only the published indictment.

James Goodale, general counsel to The New York Times nearly 50 years ago when it won the right to publish the Pentagon Papers in the Supreme Court, has warned that the indictment has “laid the groundwork” for further charges under the Espionage Act should Assange be returned to America.

But, as things stand, the charge against Assange is that – in obtaining the information – he behaved exactly as many mainstream reporters would. This is a case that could well end up in the UK Supreme Court. As the indictment is currently framed, it appears to criminalise the process of news-gathering and, as Goodale points out in an article for The Hill, “will be a precedent for future cases concerning leaks”.

There is a context to all this – even leaving aside Trump’s complicated history as beneficiary of the WikiLeaks revelations about his presidential rival in 2016. Trump has repeatedly described mainstream media as “enemies of the people”. His then CIA director, Mike Pompeo, warned in April 2017 that the Trump administration would “no longer allow Assange and his colleagues the latitude to use free speech values against us”.

Trump himself is reported to have urged the former FBI director James Comey to “consider putting reporters in prison for publishing classified information” just as his former Attorney General Jeff Sessions warned in August 2017 he wanted to make it easier to jail journalists who wouldn’t reveal their sources”.

In Britain the Law Commission published proposals in February 2017 to increase the maximum prison sentence for leakers from two to fourteen years. The consultation document (currently in limbo with a government drowning in Brexit legislation) advocated that the definition of espionage be expanded to include obtaining sensitive information, as well as passing it on.

So it’s not just Assange who is facing the prospect of time behind bars for engaging in journalistic work. A precedent that criminalised his working methods could well affect the ability of all investigative reporters to function safely.

But is he a journalist? Is he our kind of journalist? Of course, the defence of free expression is never simply about the defence of journalists. But it has always been the case that journalists have been canaries down the free speech coal mine. This century is throwing up all kinds of new asymmetrical challenges whereby one person with a laptop can have far more impact than a newspaper with a thousand reporters.

The ethical tests Assange sets us could – and doubtless will – occupy many doctoral students for years to come. I’ve found myself wrestling with a few of them and changing my mind.

They fall into three categories: the “journalist question”, the “gatekeeper question” and the “source question.”

The “journalist question” is simply put: who gets to call themselves a journalist? Can a journalist have multiple identities – a “journalist plus”? Assange – like millions of others today – can sometimes perform acts of journalism. But it’s often journalism plus activism, or journalism plus indiscriminate leaking. What gets the legal protection: the specific act or the status of the person performing it?

The “gatekeeper” issue arises from the reality that, well into the 21st century, the people who own printing presses (or TV studios) are no longer the sole determiners of what we get to read or see. Assange’s instinct was to say: “Why should The New York Times sit there as gatekeeper to the raw material? Why don’t we give it to everyone so you can choose?”

Scenes from “Collateral Murder”, classified US military video published by WikiLeaks, April 2010

Assange’s eventual decision deliberately to dump nearly all the Manning material on the web is one example of the gatekeeper issue. Another was the so-called Steele dossier on Trump and the Russians. Traditional view: journalists act as the arbiters of what’s true and what isn’t, and don’t publish anything until they’ve done the sifting. Alternative view: who are you to sit on such important material? Publish it and let the public decide. The New York Times (and several others) didn’t publish: Buzzfeed did. Who was right?

Finally there are “source issues”. Does it matter that WikiLeaks seems to have acted as a conduit for material hacked by Russian military intelligence? Would a more traditional news organisation have refused even to look at documents sent to them by such a source – assuming anyone knew at the time who the source was? Regardless of the public importance of the material itself, is it responsible to ignore something because it comes from a tainted source?

I’ve always taken the view that you think carefully about the motive of a source, but place more weight on the information itself. Sources act from all sorts of motives, reputable and malign, but in the end you should, as an editor, primarily consider whether the material they are passing on is true and of public importance.

In addition – to quote Max Frankel, executive editor of The New York Times at the time of the Pentagon Papers – “ALL our sources deserve to know that they are protected with us. It is, however, part of our obligation to reveal the biases and apparent purposes of the people who leak or otherwise disclose information.”

At the same time, I can understand the unease of people who feel that the 2016 disclosures felt more like information laundering than journalism. Assange has claimed that the Russian government was not the source of the DNC and Podesta leaks. In July 2018 Mueller indicted 12 Russian military intelligence agents alleged to be responsible for the hack. Who is telling the truth? What obligation does Assange have to identify the motives of his source, even if not naming the source?

The battles for liberty and free speech have often been won by unsavoury characters. John Wilkes, who effectively won the right to report parliament in the late 18th century, was debauched, profligate, rancorous, vituperative and malicious. But he was also a tenacious and swashbuckling campaigner for journalistic freedoms. Like Assange, he fled into exile to escape prosecution. To some he was a scoundrel and an outlaw: to others a hero.

Assange is even more problematic in many ways. But the digital age is likely to throw up many such characters who defy the traditional boundaries we are used to negotiating. We may not like or respect them, but there may well be occasions when we have to defend them.

Alan Rusbridger is Principal of Lady Margaret Hall, Oxford, and chair of the Reuters Institute for the Study of Journalism. He was editor-in-chief of The Guardian for more than 20 years and  author of Breaking News (2018).


Further Reading

  • Collateral Murder’ – the classified US military video of a helicopter crew killing civilians and two Reuters journalists in Iraq, published by WikiLeaks in April 2010.
  • The Afghan War Logs, the 2010 collaboration between The Guardian, WikiLeaks and others revealed “a devastating portrait of the failing war”.
  • Assange in his own words, writing for the Sydney Morning Herald in October 2011 after falling out spectacularly with The Guardian and the New York Times
  • Andrew O’Hagan’s masterly piece from 2014 for the London Review of Books deals vividly with his encounters with Assange after he was signed up to -ghost-write his autobiography.
  • United States of America v Julian Paul Assange. The indictment which outlines the charge of conspiracy to commit computer intrusion. It had been held under seal since March 2018 and made public after Assange’s arrest on 11 April 2019.