My junior year high school English teacher liked to tell a story about Henry David Thoreau and Ralph Waldo Emerson to illustrate the differences between America’s two great transcendentalist writers. Thoreau was jailed in 1846 for withholding taxes that paid for the invasion of Mexico and protected slave owners. Emerson came to speak to Thoreau through the bars of his cell. My teacher, with theatrical flair and stentorian voice, recounted the conversation:
Emerson: What are you doing in there, Henry David?
Thoreau: The question is, what are you doing out there, Ralph Waldo?
We might ask ourselves what we are doing out here while Julian Assange remains “in there” at Belmarsh Maximum Security Prison in London. The extradition hearing’s magistrate, Vanessa Baraitser, declared on Monday that Britain could not send Assange to the United States for reasons of health. In theory, Assange was a free man. Yet, at the conclusion of the court session, guards returned him to prison. He will languish there until the government’s appeal against her verdict is adjudicated in a higher court. That is likely to consume another year of Assange’s life to add to the 10 he has endured in prisons, house arrest, and in the Embassy of Ecuador.
The magistrate’s judgment, while giving Assange hope that he will not spend the rest of his life in the brutal recesses of the American penal system, dismissed his defense that revelations of war crimes were in the public interest and press freedom statutes in Britain and the United States barred his prosecution. It was an indictment of American maximum security prisons, where the magistrate recognized Assange was likely to kill himself, but it was a body blow to free speech. Nils Muižnieks, Europe director at Amnesty International, explained, “The fact that the ruling is correct and saves Assange from extradition does not absolve the UK from having engaged in this politically-motivated process at the behest of the USA and putting media freedom and freedom of expression on trial. It has set a terrible precedent for which the US is responsible and the UK government is complicit.”
Magistrate Baraitser explicitly denied Assange protection under Article 10 of the European Convention on Human Rights, which states, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Her judgment concluded that Britain’s Official Secrets Act (OSA) of 1989 overrode Assange’s, and hence any journalist’s, right to impart information without interference. “Here the restriction on the right to free speech,” she wrote, “is prescribed by law by virtue of section 5 of the OSA 1989. Its objective is to safeguard national security by preventing the disclosure of information relating to the work of the security and intelligence services and therefore directed to the aim of preserving national security.”
Baraitser went on to quote an editorial from September 2, 2011, in London’s The Guardian, which had published many of the WikiLeaks documents in redacted form, “We deplore the decision of Wikileaks to publish the unredacted State Department cables which may have put sources at risk…” Her judgment, like the Guardian editorial, neglected to mention that two Guardian journalists had published the WikiLeaks password that enabled the Cryptome and Pirate Bay websites to access the cables. As Cryptome prepared to release the cables online without redacting names, Assange called State Department lawyer Cliff Johnson on August 26, 2011. The full recording of the conversation is available on YouTube. Assange said, “There may be some possibility to stop it.” Neither Cryptome nor Pirate Bay, which published the unredacted cables on August 31 and September 1, 2011, were prosecuted. The only defendant is Assange, who had tried to prevent it.
“I find that the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America,” Baraitser wrote in her judgment. While she did not intend it, her conclusion is a condemnation of both the US and the UK, their police, their spies, and their prison regimes. Why is Assange’s mental health so precarious that, as King’s College emeritus professor of psychiatry Michael Kopelman attested, he has contemplated suicide so often—“hundreds of times a day”—that he has called the Samaritans for help and hidden a razor blade in his cell? Might it be the 24-hour surveillance he endured for years in the Ecuadorian Embassy and the abuse he has suffered at Belmarsh? Can it be the destruction of his reputation, the violation of his privacy, the denial of books sent to him by friends, and the isolation imposed on him in prison? Is Britain blameless in the destruction of his mental health? Britain owes Assange both vindication and restitution, but it will provide neither.
Nor will the United States, which was behind the spying at the Ecuadorian Embassy, where private security guards fed real-time video to the CIA of Assange’s every waking moment. Moreover, the US and the UK monitored Assange’s communications with his legal team—a clear violation of lawyer-client privilege. Magistrate Baraitser did not find this disturbing. She accepted US government assurances that “the fruits of surveillance would not be seen by prosecutors assigned to the case and would be inadmissible at Mr. Assange’s trial as a matter of US law.” While the fruits of surveillance would not be admissible, what would prevent an employee of the CIA or NSA from passing the material along to the Department of Justice? That would reveal to the prosecution the full defense strategy, an incalculable advantage in any trial—as in any war.
Michael Tigar, the human rights lawyer who testified as an independent expert called by the Assange defense, wrote to me of Baraitser in an e-mail, “She also paid no attention to the lack of judicial review of classification decisions and to the clear legislative history of the Espionage Act.” The Espionage Act of 1917, which Woodrow Wilson introduced with the stated object of prosecuting German spies, was employed instead against dissidents opposing American participation in World War I: socialists Eugene Debs and Kate Richards O’Hare, and filmmaker Robert Goldstein, whose crime was to depict British atrocities against American revolutionaries in his subversively titled 1917 epic The Spirit of ’76. The Obama administration used it against nine journalists. It should be called the Suppression of Speech Act, because it has done less to prevent spying on America than to frighten the press.
Much depends on the American administration that assumes office on January 20. Joe Biden has yet to designate an attorney general, who will face the choice of following the Trump administration in continuing the prosecution of Assange or the Obama administration which decided against prosecution. Meanwhile, Assange cannot leave Belmarsh. Thoreau lingers in his cell, and Emerson can’t understand it.
Editor’s note: This article originally referred to Michael Tigar as the human rights lawyer representing Julian Assange in the United States. He is not; instead, he testified as an independent expert whose opinion was offered into evidence by Assange’s lawyers in the United Kingdom.