The Assange case opens the debate on the topic of the limits of freedom of information regarding the exposure of government abuses, to exercise criticism and dissent, but also on the limits of criminal repression, when it is motivated by the interest of the State to its defence and integrity, for the protection of which secrecy can be fundamental.
The effort to ensure the capture of Assange is explained by the fact that he is considered to be a terrorist and a traitor[1]. On the contrary, there are those who consider the case to be a battle for freedom, which goes beyond the person of Assange: he represents a threat to the extent that he has revealed crimes of much greater gravity, which instead are still totally unpunished. This explains the support of international organisations, from the UN bodies against torture, to those of the Council of Europe, and journalists.
The prosecution
The decision to criminally prosecute Assange's conduct is highly controversial, given the choice to use criminal cases with high interpretative discretion and different repressive policies regarding the publication of confidential documents. (The legal system of the US is not governed by the principle of legality, but by the principle of opportunity).
The desire to react and prosecute Assange was clear since the first mass of documents were released through the Wikileaks site in April 2010 (the so-called war logs, 391, 832 confidential documents on the war in Iraq, over 77,000 documents on the war in Afghanistan and, again, 250,000 diplomatic cables, 800 information sheets on detainees at Guantanamo).
Bradley (now Chelsea) Manning, military analyst stationed in Iraq, the main source of the colossal leak, had already been arrested in the field in May 2010. During the trial she admitted having had contact with Wikileaks and probably with Assange, maintaining however that she acted on her own initiative. This was enough to suggest an inevitable follow-up to the investigation and similar harshness in the repression also towards Assange himself.
The charge
The original charge brought against Assange was of a common crime without any reference to his publishing activity with Wikileaks. It was in fact referred to an agreement for the abusive use of the IT system to which the source had access, but in ways that ensured its coverage; an IT activity that allegedly required technical skills that only Assange possessed.
But, as subsequently appears, the publication activity is the real focus of the dispute with further accusations of complicity in a global criminal agreement for the theft of confidential documents and their disclosure.
The sanctioning perspective therefore changes, from a maximum sentence of 5 years for the computer crime alone to a sentence of 10 years for each of the other charges, therefore for the overall legal limit of 175 years[2].
These are some cases provided for by the Espionage Act, a law enacted in 1917, upon the entry of the United States into the First World War and now included in the United States Federal Code in art. 18, section 723 sub b) c) d) and e). These regulations criminalise the collection or copying of information on national defence, however contained in material media or otherwise conveyed; their receipt if the recipient is aware that they were obtained in an abusive manner; their transmission or communication to unauthorised persons by those who have legitimate possession or management or by the owner who is in turn abusive[3]. The agreement to commit each of these criminal behaviours is independently incriminated.
However, the scope of these rules appears to be very broad and lacking in specificity, first of all in the very definition of the category of information that constitutes the object of illegal acquisition.
The norm defines it, with various generic terms, as information on national security ("information respecting the national defence", "relating to the national defence", "anything connected to the national defence”). The complaint that these cases are not strictly binding, which would expose them to the judgment of unconstitutionality, has however already been addressed and disregarded by recent case-law (United States v. Rosen[4]).
Nonetheless, the rule lends to favour prosecutorial discretion. State agents responsible for the leaks were prosecuted with determination and not third parties, barring a few exceptions, but in the cases that were concluded they involved subjects in low or medium-level positions in the institutional structure, when it was well known that the controlled filtering of news reserved for the press and media is a rather frequent action coming from higher political levels.
Political interests involved
The storm over Assange and the demolition of his image, upon closer inspection, began right after the publication of the internal emails of the Democratic Party which would have been targeted to damage Hilary Clinton's presidential campaign and to favour candidate Trump.
It is therefore not out of place for the initiative of Assange's defence to raise the exception of the political nature of the accusation, also in the form of the mere instrumentality of the action, hypotheses of a cause preventing extradition[5].
Moreover, it cannot be overlooked that the information revealed by the publications via Wikileaks expose abuses and violations that would have required the charge of those responsible. Of particular interest are documents regarding the profiles and treatment of detainees at Guantanamo and war operations in Afghanistan and Iraq. From the former emerges the lack of any serious reason for the detention of most of the prisoners, subjected even more gratuitously to treatments constituting torture. The other documents reveal the commission of war crimes, killings of civilians and torture, the latter also perpetrated by the Iraqi security forces, to whom prisoners were handed over. Compared to the mass of documented episodes, there is no action aimed at identifying the perpetrators, through in-depth investigations and the consequent criminal prosecution of their responsibilities.
Finally, the reference to the current events of the ongoing wars in Europe comes by itself. In these contexts information becomes a battleground: propaganda and censorship, dissemination of false information, alongside the total closure of information circuits in certain cases. The addressees are always citizens since the support of the public opinion is crucial for governments to survive. The leak of information which allows, however improperly, even illegally, free information to the public is a sign that the abuses committed in secrecy and covered up are not shared, because they conflict with the values of the most. For instance, there were quite a few army soldiers or service officials who during wars opposed the directives that led them to go beyond the limit, because they felt that all this was "Unamerican".
The contradictions that arise, the confrontation of ideas and opinions: this conflict is the beating heart of democracy. If we must not tolerate, in order to defend principles and law, the invasion of Ukraine, legitimising the aggression of the Russian Federation, it cannot be tolerated that those, who invoke those principles, do not fight with similar conviction against the attacks on freedom of thought and criticism. It is the other side of freedom, that of denouncing the crimes and plots that we commit in this part of the world that is the enormous stake in the Assange case.
[1] The definition of "high tech terrorist" was already used by then Vice President Biden in December 2010, also in dissonance with the softer approach that initially characterised the Obama administration. https://www.theguardian.com/media/2010/dec/19/assange-high-tech-terrorist-biden
[2] In the procedural system of the United States, the multiplication of charges, in the absolute dominion of the prosecutor, has a notable impact on the Judge's ability, in calculating the sentence, to apply the material rather than legal accumulation of the crimes, as well as order the execution in form consecutive rather than concurrent of the various sentences. It is therefore not uncommon to be sentenced to a de facto life sentence. “Medieval” penalties, this is how they are defined even in an Anglo-Saxon cultural legal context: https://www.theguardian.com/commentisfree/2022/may/10/priti-patel-julian-assange-us-extradition
[3] See full text: https://www.law.cornell.edu/uscode/text/18/793
[4] See the full text: https://supreme.justia.com/cases/federal/us/161/29/
[5] In truth, the Judge is aware that the prosecution of Assange demonstrates extreme tenacity, she admits this especially on the part of the security services, she takes note of the use of illegal instruments of control within the Ecuadorian embassy, even of the poisoning plan, but she withdraws from the judgment, citing a lack of certain proof, as a criminal investigation is underway in Spain into these facts, the elements of which are not currently available.
Bibliography:
Julian Assange like a hi-tech terrorist, says Joe Biden (2010, 19 December). Retrieved from The Guardian: https://www.theguardian.com/media/2010/dec/19/assange-high-tech-terrorist-biden
Mazzuri, J. Uno sguardo oltre l’Europa. La discrezionalità nell’esercizio dell’azione penale negli Stati Uniti e la prospettiva del controllo politico sul pubblico ministero: limiti di un modello e brevissimo spunto di comparazione. Questione Giuridica
Priti Patel, hear this loud and clear: Julian Assange must not be handed over to the US (2022, 10 May). Retrieved from The Guardian: https://www.theguardian.com/commentisfree/2022/may/10/priti-patel-julian-assange-us-extradition
Zucca, E.Il caso di Julian Assange.È giusto incriminare e per cosa?Quando informare il pubblico a tutela della democrazia si trasforma in attacco ostile.Questione Giuridica
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