Washington will crucify Assange
WikiLeaks’ real sin was mocking the powerful
“He is our property.” Those celebratory words of Sen. Joe Manchin, DW.Va., came on CNN soon after the news of the arrest of WikiLeaks founder Julian Assange at the Ecuadorian Embassy in London.
It was a sentiment shared by virtually everyone in Washington. Assange committed the unpardonable sin of embarrassing the establishment — from members of Congress to intelligence officials to the news media. And he will now be punished for our sins. Despite having significant constitutional arguments to be made, it is likely that he will be stripped of those defenses and even barred from raising the overall context of his actions in federal court. What could be the most important free speech and free press case in our history could well be reduced to the scope and substance of an unauthorized computer access case.
WikiLeaks disclosed a massive and arguably unconstitutional surveillance program impacting virtually every U.S. citizen. It later published emails that showed that the Democratic National Committee and the campaign of Hillary Clinton lied in various statements to the public, including the rigging of the primary for her nomination. No one has argued that any of these emails were false. They were embarrassing.
The criminal charge against Assange filed in a federal court was crafted to circumvent the constitutional problems in prosecuting him. By alleging that he played a role in Chelsea Manning’s hacking operation in 2010, the government is seeking to portray him as part of the theft rather than the distribution of the information. If Assange helped Manning secure a password to gain access to additional information, that would be a step that most news organizations would not take.
Moreover, the Justice Department is likely to move to strip Assange of his core defenses. Through what is called a motion in limine, the government will ask the court to declare that the disclosure of the arguably unconstitutional surveillance program is immaterial. This would leave Assange with little or no opportunity to present evidence of his motivations or the threat to privacy.
The key to prosecuting Assange has always been to punish him without again embarrassing the powerful figures made mockeries by his disclosures. A glimpse of that was seen within minutes of the arrest. CNN brought on James Clapper, former director of national intelligence. CNN never mentioned that Clapper was accused of perjury in denying the existence of the National Security Agency surveillance program and was implicated in the scandal that WikiLeaks triggered.
Clapper was asked directly before Congress, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
Clapper responded, “No, sir. … Not wittingly.” Later, Clapper said his testimony was “the least untruthful” statement he could make.
Thursday, Clapper was allowed to explain (without any hint of selfawareness or contradiction) that Assange has “caused us all kinds of grief in the intelligence community.” Indeed, few people seriously believe that the government is aggrieved about password protection. The grief was the disclosure of an abusive surveillance program and a long record of lies to the American people. Assange will be convicted of the felony of causing embarrassment in the first degree.
Notably, no one went to jail or was fired for the surveillance programs. Those in charge of failed congressional oversight were reelected. Even figures shown to have lied in the Clinton emails, like former CNN commentator Donna Brazile (who lied about giving Clinton’s campaign questions in advance of the presidential debates), are now back on television. Assange, however, could well do time.
With Assange’s extradition, all will be well again in Washington. As Sen. Manchin declared, Assange is their “property” and will be punished for his sins. Once he is hoisted as a wretch, few will again entertain such hubris in the future.
Jonathan Turley, a member of USA TODAY's Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University.