14 Jan 21 | News and features, Politics and Society, United States
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Biden and Obama/The White House/WikiCommons
On top of being the only US president impeached twice, Donald Trump leaves a legacy of attacks on the very foundations of free speech and specifically on journalists and the media.
President-elect Joe Biden has offered people hope of returning to normal politics, rather than another term of a president with a severe distaste for free speech. But are notions of a saviour cometh and confirmed on Inauguration Day on 20 January misguided?
Biden has an extensive record in politics from which he can be judged, as well as eight years in high office as vice president under Barack Obama that could give an indication of how he plans to proceed. But the picture that emerges is not one that identifies Biden clearly as a champion of free spech or otherwise.
Going back to the start of Biden’s career as a senator, the signals were already mixed on issues of free speech. In 1989, Index reported on then Senate Judiciary Committee chair Biden introducing a bill to make it illegal to desecrate a flag. Nan Levinson reported at the time: “Biden’s bill and a similar one introduced in the House are intended to sidestep free speech issues by outlawing actions without mentioning motivation, the part of flag desecration that the Court determined is protected by the First Amendment.” But in his favour, some 13 years later Biden helped propose the creation of a “Radio Free Afghanistan”.
In more recent years, there is the way in which the Obama Administration handled whistleblowers. Biden can set an early example with the case of Julian Assange by pardoning him. The question is, will he?
Such an action may have been considered by the Obama administration, but was not pursued. The whistleblower involved in the case, Chelsea Manning, eventually had her sentence commuted by Obama in January 2017.
Assange faces charges under the US Espionage Act, a first for a journalist or publisher. The onus is therefore on Biden to ensure there is no legal precedent stopping a journalist from publishing sensitive information again. Pardoning the WikiLeaks founder would go some way to achieving this.
Rumours of an immediate pardon once Biden takes office have arisen and many believe the election of Biden to be a positive thing for Assange. His lawyer Edward Fitzgerald went as far as telling Associated Press “Much of what we say about the fate which awaits Mr. Assange remains good because it’s about systemic faults in the prisons and his underlying conditions,” he said.
But as yet there has not been any indication either Trump or the president-elect will move to do this and any speculation has shaky foundations. There is a contradiction in that – though Obama may have commuted Manning’s sentence – in 2010, Biden described Assange’s work with former US intelligence analyst Chelsea Manning as “closer to a high-tech terrorist than to the [actions of revealing the] Pentagon Papers.”
“The Obama administration went after other whistleblowers whose cases remain active. Edward Snowden for example. These track records and trends started before President Trump,” said Rebecca Vincent from RSF in an earlier interview with Index.
In fact, eight of the 13 people charged under the Espionage Act since its inception in 1917 were during the eight years of the Obama presidency.
Jeffrey Sterling was convicted and sentenced to three and a half years in prison in 2015 for violations of the Espionage Act. Through correspondence with US journalist James Risen, Sterling brought to light covert plans to frame Iran by providing a flawed design for a component of a nuclear weapon, also known as Operation Merlin.
In an interview with Index, Sterling spoke of the importance of whistleblowers and said: “A vital part of free speech is the ability of citizens to hold those in power accountable by speaking out about wrongdoing and misuse of power.
“Whistleblowers are essential to free speech because their courage exposes what the unfettered power of government would prefer not to be known.
“Without whistleblowers, the wrongdoing and abuses of government will remain hidden to the detriment of the people. Without whistleblowers, free speech can be rendered ineffectual and of no concern to those in power.”
In short, misuse of the Espionage Act stops those working for US intelligence agencies and government offices from speaking out against wrongdoing.
“Targeting whistleblowers with the severe penalties and implications of being prosecuted under the Espionage Act has a chilling effect on anyone who might choose to exercise their free speech by being critical of or exposing the wrongful acts and abuses of government,” Sterling noted. “In my opinion, the Obama presidency did all it could to characterise whistleblowers as anti-patriotic and criminals and offered absolutely no protection.”
“When those who are the subject of a whistleblower’s complaint control the dialogue, there are no whistleblowers, just leakers. The Obama administration set the tone by essentially eliminating the very idea of a whistleblower and instead characterised them as leakers, or criminals.”
The contrast between Obama and Trump’s outward attitudes towards the press, however, is significant. While Trump chose to claim most of the criticism against him as “fake news”, Obama often spoke of the importance of journalism, a free media and free speech, such as after the 2015 attacks on Charlie Hebdo in Paris.
At the same time though the 44th president came under repeated fire for his actions towards media freedom and freedom of information in particular. Access to public information during his presidency was limited. The USA’s Freedom of Information Act allows US citizens, like many across the world, to question local and federal authorities. The Obama administration apparently spent a record $36.2 million in legal costs in the final year alone to preserve its right to turn over redacted information.
A lack of transparency and targeting of those revealing information in the public interest does not cast a positive light on Obama’s then right-hand man.
It is perhaps unfair to negatively predict the future of the Biden presidency and its role of free speech solely on the president he served under as second in command. The role of vice president offers no true indication of support of a particular policy; many doubt the power the role has. John Adams once described the role as “the most insignificant Office that ever the invention of man contrived or his imagination conceived”. It could reasonably be said that whether or not Biden was supportive of Obama’s free speech policy, there would have been little he could have done about it either way.
Yet it is no secret that Obama is a man Biden greatly admires and – while the former Delaware senator did not exercise as much power as some vice presidents – the relationship between the two was famously good. Perhaps a certain level of emulation can be expected.
The Committee to Protect Journalists has put forward a white paper to set out how Biden can go about restoring freedom of speech in the USA. Among their suggestions were calls to “set an example for the world” by ensuring the independence of US government-funded media, appointing a special presidential envoy for press freedom and ensuring previous administrations’ attacks on publishers and whistleblowers were not repeated.
“President Biden should commit to an open and transparent administration that supports Freedom of Information requests, back Justice Department guidelines that protect confidential sources, and pledges never to use the Espionage Act to prosecute journalists or whistleblowers,” they said. “These long-standing concerns of CPJ and the press freedom community were also raised during the Obama administration. “
They said: “President Biden has the opportunity to restore American influence in a critical area.”
“However, this can only be achieved if defence of press freedom is a matter of principle, and not expediency. America must confront its adversaries, but also challenge its friends.”
Adopting such policies would go a long way to allay fears of a Biden presidency that departs from recent ones.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also like to read” category_id=”579″][/vc_column][/vc_row]
06 Jan 21 | News and features, Politics and Society, United Kingdom, United States
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Julian Assange/Cancillería del Ecuador/WikiCommons
This week’s decision not to extradite WikiLeaks founder, Julian Assange, to the USA to stand trial for charges of espionage came as welcome relief to Assange’s family and supporters. However, he remains detained at London’s high-security Belmarsh prison after the judge refused bail citing concerns he would abscond.
Before we consider the ruling against extradition as a victory for free speech it’s worth exploring the details of District Judge Vanessa Baraitser’s ruling which risk creating a chilling effect on public interest journalism.
Judge Baraitser’s ruling at no stage allowed for the protections governed by Article 10 of the UK Human Rights Act to halt the extradition. Instead, in denying the US Government’s request to extradite Assange, Baraitser concluded that “the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America”.
In doing so, the judge accepted the testimony of medical experts who said that Assange represented a potential suicide risk if he were to be incarcerated in the USA; Jeffrey Epstein’s suicide and Chelsea Manning’s attempted suicide are both mentioned in the ruling.
The risk was exacerbated because Assange would likely face so-called special administrative measures which would limit his communication with the outside world and visiting rights.
Baraitser’s decisions regarding the key legal arguments of Assange’s defence are cause for concern and risk creating a precedent which would prevent journalists from publishing sensitive information in the public interest and the ruling appears to have extended the scope of Britain’s Official Secrets Act.
As part of the extradition request, the court had to be satisfied, to the criminal standard, that Assange’s conduct would constitute an offence under the law of England and Wales.
Baraitser said in the judgment: “I have found that Mr. Assange’s conduct is capable of amounting to an offence in England and Wales. It follows that I do not accept that the mere fact charges are brought in the US demonstrates that they are brought in bad faith.”
This argument appears to be based on the premise that Assange’s actions would have fallen foul of section 5 of the UK’s Official Secrets Act (OSA) 1989 which applies to individuals, including publishers, who are not the original leaker of the information. This criminalises “those who disclose protected materials which are damaging and which they have disclosed knowing, or having reasonable cause to believe, would be damaging”.
The US government’s argument is similar and maintains that under US law a free speech defence does not necessarily cover classified information even if it is in the public interest and they said Assange had disclosed materials “that no responsible journalist or publisher would have disclosed” when WikiLeaks published its full archive of 251,000 secret US diplomatic cables without redacting the names of sources.
It is this assertion that has led the US government to charge Assange under the 1917 Espionage Act, which is primarily designed for spies, rather than journalists or publishers.
Before the verdict, Assange’s partner Stella Moris told Index: “They say Julian published information that was secret and therefore he can be prosecuted over it. They never used [this act] to prosecute someone publishing information for the public.”
The defence argued that Assange was “doing no more than engaging in the ordinary and lawful conduct of the investigative journalist”, which is protected by Article 10.
However, Baraitser stated that the Article 10 right to freedom of expression “is not absolute”.
She added: “In my judgment, notwithstanding the vital importance in guaranteeing freedom of the press, the provisions of the OSA 1989, where they are used to prosecute the disclosure of the names of informants, are necessary in a democratic society in the interests of national security.”
She also contested Assange’s assertion that he was acting as a responsible journalist.
“The difficulty with this argument is that it vests in Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection.
“Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where ‘dumps’ of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of ‘responsible journalism’ can sensibly be applied.”
If the judge does allow the US appeal in the next two weeks and Assange is extradited, he will not have recourse to protection under the First Amendment laws which protect freedom of speech. Incumbent Secretary of State Mike Pompeo has previously argued that First Amendment privileges should not be afforded to Assange and WikiLeaks.
Pompeo’s comments were deemed by many to be politically motivated in order to deter the likes of the WikiLeaks founder from repeating similar actions. Being the first administration to use the Espionage Act in such a way seemed to support this.
But Baraitser once again rejected the defence’s argument, deciding that: “The defence points to comments made by Attorney General Sessions a week after Mr. Pompeo’s speech in April 2017 that “[journalists] cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if ‘a case can be made, we will seek to put some people in jail’. However, as the US points out, these comments appear to be no more than statements of what is perhaps obvious, and conditional on whether criminal liability can be established. There is nothing sinister in bringing a prosecution ‘if a case can be made’.”
Again, the Espionage Act is a factor here as it does not contain a public interest defence. Therefore, charging journalists under this Act is considered by many as one-sided and unfair as it removes the protections free speech laws afford.
Index’s position is clear. Governments, authoritarian or not, in order to protect our collective human rights and to enable power to be held accountable, must be open to scrutiny and are a fair target for investigative journalists, even if the definition of what constitutes an investigative journalist is no longer as clear as it once was.
The issue at hand is not about Assange the person, but rather the very principle of a free and fair press which operates in the public interest. That is the principle at stake in this judgment.
Other press freedom organisations, such as the International Federation of Journalists, Reporters Without Borders and the Centre for Investigative Journalism, have also expressed their disquiet with the ruling.
We recognise that there are certainly questions about the manner in which Assange published the information without redacting the names of journalists and activists, a move which was condemned by a number of newspapers which worked with WikiLeaks to reveal the contents of the diplomatic cables.
However, the fact remains that much of the information published about the actions of certain governments was clearly in the public interest.
If the US government can decide on a case-by-case basis who is a spy and who is a journalist then this makes the job of the latter that much more challenging. The fear that investigative journalists may be extradited will mean stories that need to be brought to light will remain in the darkest of shadows.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also like to read” category_id=”5641″][/vc_column][/vc_row]
15 Dec 20 | News and features
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Justice for Assange campaign protester outside a court hearing in 2010. Photograph: Nadia Cosentino
Assange’s partner, Stella Moris, is remaining resolute despite his extradition hearing decision being less than a month away and him being held in a prison that has recently had a Covid-19 outbreak.
Speaking over the phone to Index, Moris discusses the hearing’s details and what it could mean for the future of freedom of expression. And she talks about the deep implications it has had for her and her young family.
“Obviously it is very difficult. I speak to Julian on a daily basis unless there is a problem. [But] he is in prison. Soon to be for two years. He has been there for longer than many violent prisoners who are serving sentences. All in all, he has been deprived of his liberty for ten years now,” she told Index. She adds:
“The kids speak to their father every day; we try to normalise it as much as we can for them. But of course, this is not a normal situation and our lives are on hold. It is inhumane and shouldn’t be happening in the UK.”
The current hearing – which will decide whether there are grounds for Assange to stand trial in the USA – should reach a conclusion on 4 January. A trial in the USA (should the decision go against Assange) will have major ramifications for free speech and whistleblower journalism.
The WikiLeaks founder is charged with conspiring with US intelligence analyst Chelsea Manning and hackers from groups such as Anonymous and LulzSec to obtain and publish classified information. Each of the 18 charges laid by US authorities, if Assange is extradited and convicted, carry a maximum penalty of 10 years. The allegations brought forward under the 1917 Espionage Act, alongside one other under the Computer Fraud and Abuse Act, mean Assange could face up to 175 years in prison – effectively a life sentence. Manning was initially sentenced to 35 years, but under the Obama administration her sentence was commuted to less than seven years.
It is easy to get sidetracked about the current extradition hearing and get into arguments about whether Assange is a journalist, whether he is guilty of other crimes or whether the publication of the documents brought harm to anyone involved. Instead people’s attentions should focus on the precedent that will be set should the case go to trial in the USA.
As it stands the case is unprecedented. No publisher has ever been tried under the Espionage Act, which itself was essentially created for spies imparting official secrets either for profit or otherwise. This is perhaps a direct contradiction of rulings of the courts in the UK. In December 2017, the UK’s information tribunal recognised WikiLeaks as a media organisation, in direct contradiction to the view of the US State Department. Australia’s media union, the Media, Arts and Entertainment Alliance, also presented an honorary member card to Assange’s Melbourne-based lawyer.
Amidst the noise of the separate matters around the case, Moris insists people need to “forget what they think they know” and assess the issues involved.
“There are a lot of assumptions being made over what this case is really about. There are all these sideshows. It is not about people being harmed because the US has admitted it has no evidence to make this argument. It comes down to the fact that the material published was classified. People who care about free speech and press freedom need to forget what they think they know about this case and look at it afresh and understand Julian is in prison for publishing. This is not something that democracies do.”
“Are they saying what he published was not in the public interest? They say that is irrelevant. They can’t deny [what he published] wasn’t in the public interest because he was publishing information and evidence of state crimes, of state abuse, torture, of rendition, blacksites and of illegal killings. What they are arguing is that Julian published information that was secret and therefore he can be prosecuted over it.”
Journalists publishing secret information is not new (nor is pressure for them not to publish) and can often be key to upholding democracy and ensuring states act properly. The Watergate revelations relied heavily on news organisations pressing on with publication despite attempts by the USA to stop them, including the threat of jail time. It proved a significant victory for free speech.
If Assange is extradited and tried the case will impact journalists and the media “for years to come”, says Rebecca Vincent, director of international campaigns at Reporters Without Borders (RSF).
“It feels like many in the media do not see the implications of this case as something that will possibly affect them,” she told Index. “This case will have ramifications on the climates for journalism and press freedom internationally for years to come.”
“This is the first time we have seen the US government prosecute anybody for publishing leaked information. If they are successful, they will not stop with Assange and WikiLeaks. This could be applied, in theory, to any media outlet.”
It’s common for journalists and publishers to cite a public interest defence for disputed documents. It is a centrepiece of a defence case against libel, for instance.
“The information published was certainly in the public interest; it served to inform extensive public interest reporting that exposed war crimes and other illegal actions by states,” said Vincent.
“The Espionage Act lacks a public interest defence. He cannot use it if he is sent to the United States and tried.”
Essentially, what this means is that Assange is being treated as a spy not a publisher. If Assange is extradited and loses his case against the US government, any time classified information is published by a journalist there will be a precedent set that they can be charged and tried as a spy in the same way.
“These sorts of cases are really highlighting the need for more robust legislation that cannot be manipulated to be used against journalists, whistleblowers and other sources. Ultimately, it is the public’s right to access information that is being impacted,” Vincent added.
“You can see this for what it is; this very much feels like a political prosecution by states that are not meant to engage in this behaviour. The reason our states can get away with this is because of a lack of public pressure. A lack of public sympathy has resulted in a lack of widespread public pressure to hold our governments to account.”[/vc_column_text][/vc_column][/vc_row]
25 Jun 19 | Events
[vc_row][vc_column][vc_single_image image=”82824″ img_size=”full”][vc_column_text]On 13th June 2019, UK Home secretary Sajid Javid signed a request for Julian Assange to be extradited to the USA. He has since been ordered by the court to face a full extradition hearing in February next year. If granted, the Wikileaks founder could face 18 indictment charges in the US, including those under the Espionage Act. If found guilty he could receive a potential prison sentence of 175 years.
Now that Assange has been ejected from the Ecuadorian embassy and is serving a 50-week sentence in Belmarsh Prison for bail violations, how does the journalism community view the founder of Wikileaks? Assange claims Wikileaks was never involved in hacking classified information and is “nothing but a publisher”. His QC says the US extradition case “represents an outrageous and full-frontal assault on journalistic rights.” For many, there are still unanswered questions.
Does Julian Assange merit our support and solidarity – as a journalist and a defender of the freedom to inform? Or does his personal conduct – in light of allegations of rape and sexual assault, and his documented collaboration with Russian intelligence to disrupt Hillary Clinton’s election campaign – cancel out the debt owed to him by the editors and journalists who used the Wikileaks documents to publish, broadcast and post their many ground-breaking stories and reports?
Join us as the Frontline Club brings together all sides of the debate to discuss the legacy and future of Julian Assange. Each speaker will be cross-examined for 10 minutes by our chair, and face five minutes of questions from the floor. Former editor-in-chief of the Guardian Alan Rusbridger will be joined by columnist and broadcaster David Aaronovitch, chief executive of Index on Censorship Jodie Ginsberg and freelancer Vaughan Smith, with more panellists to be announced.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Panel” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_row_inner][vc_column_inner width=”1/3″][vc_single_image image=”107623″ img_size=”full”][vc_column_text]Chair
Robin Lustig is a journalist and broadcaster. From 1989-2012 he presented Newshour on BBC World Service and The World Tonight on BBC Radio 4. He studied politics at the University of Sussex and began his journalistic career as a Reuters correspondent in Madrid, Paris and Rome. He then spent 12 years at The Observer before moving into broadcasting in 1989. He has extensive experience of covering major world events for the BBC, and has broadcast live programmes from Abuja, Amman, Baghdad, Berlin, Harare, Hong Kong, Islamabad, Istanbul, Johannesburg, Jerusalem, Kabul, Kosovo, Moscow, New York, Paris, Rome, Sarajevo, Shanghai, Tehran, Tokyo and Washington. He has won a number of awards, including the 1998 Sony Silver Award for Talk/News Broadcaster of the Year. In 2013 he received the Charles Wheeler award for outstanding contribution to broadcast journalism.[/vc_column_text][/vc_column_inner][vc_column_inner width=”1/3″][vc_single_image image=”107624″ img_size=”full”][vc_column_text]David Aaronovitch is a writer, broadcaster and commentator on culture, international affairs, politics and the media. His regular column appears every Thursday in The Times. A former television researcher, producer and programme editor, he has previously written for The Independent, The Guardian and The Observer, winning numerous accolades, including Columnist of the Year 2003. He has appeared on the satirical TV current affairs programme Have I Got News For You, presented a number of radio and television series and programmes on current affairs and historical topics. His first book, and account of a journey by kayak on the rivers and canals of England, Paddling to Jerusalem, was published in 2000 and won the Madoc Prize for travel writing. In 2009 he published Voodoo Histories, a book on the history and attraction of conspiracy theories.[/vc_column_text][/vc_column_inner][vc_column_inner width=”1/3″][vc_single_image image=”103419″ img_size=”full”][vc_column_text]Jodie Ginsberg is Chief Executive of Index on Censorship, a London-based organisation that has published work by censored writers and artists and campaigned globally on freedom of expression issues since 1972. Prior to joining Index, Jodie worked as a foreign correspondent and business journalist and was UK Bureau Chief for Reuters news agency. She sits on the council of global free expression network IFEX and the board of the Trust for The Bureau of Investigative Journalism, and is a regular commentator in international media on freedom of expression issues.[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_row_inner][vc_column_inner width=”1/3″][vc_single_image image=”107625″ img_size=”full”][vc_column_text]Suzanne Moore is an English journalist and columnist.[/vc_column_text][/vc_column_inner][vc_column_inner width=”1/3″][vc_single_image image=”107627″ img_size=”full”][vc_column_text]Alan Rusbridger was Editor in Chief of the Guardian from 1995-2015. He is currently Principal of Lady Margaret Hall, Oxford, and Chair of the Reuters Institute for the Study of Journalism. During his time at the Guardian, both he and the paper won numerous awards, including the 2014 Pulitzter Prize for Public Service Journalism. The Guardian grew from a printed paper with a circulation of 400,000 to a leading digital news organisation with 150m browsers a month around the world. He launched now-profitable editions in Australia and the US as well as a membership scheme which now has 1m Guardian readers paying for content.[/vc_column_text][/vc_column_inner][vc_column_inner width=”1/3″][vc_single_image image=”107626″ img_size=”full”][vc_column_text]Vaughan Smith founded the Frontline Club in London in 2003 as an institution to champion independent journalism. During the 1990’s he ran Frontline Television News, an agency that represented the interests of freelance video journalists. Since 1988 Vaughan has filmed in Iraq, Afghanistan, Bosnia, Chechnya, Kosovo and elsewhere, including the only uncontrolled footage of the Gulf War in 1991 while disguised for two months as a British Army officer. His home was refuge to WikiLeaks founder Julian Assange for thirteen months in 2011/12.[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_column_text]
When: Tuesday 2 July 7:30pm BST
Where: Frontline Club, 13 Norfolk Place, London W2 1QJ
Tickets: This event is fully booked
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