A Chilling Effect

For all his faults, Alan Rusbridger writes:

The end came not with a bang, but with a blurred image of a figure – which only emerged while most of us were asleep – boarding a plane at Stansted airport.

Julian Assange had become something of an embarrassment – the centre of a legal battle that threatened to make Charles Dickens’s fictional Jarndyce v Jarndyce case in Bleak House look like a brief squabble over a parking ticket.

He had already spent more than five years, at who knows what cost, in a UK maximum security prison, with the prospect of years more to come, as his legal team fought to prevent him from being extradited to the US to spend still more time in jail.

Now, after an apparent plea deal involving a somewhat surreal hearing on a little-known island in the western Pacific, he can resume something passing for normal life in his home country of Australia. It is one of the singular aspects of the story that – during his multiple years in forms of incarceration, voluntary or otherwise – Assange has somehow acquired a wife and two children. He can now, literally, spend more time with his family.

That Assange is free is, in my view, very good news. The downside is that he won that freedom by having to admit one offence under the 1917 US Espionage Act.

Whatever Assange was, he was not a spy. Publisher, journalist, activist, information anarchist, whistleblower, impresario – he is all those things. But no one, not even the US government, seriously alleged that whatever he did in 2010/11 amounted to espionage.

So a line has been crossed in using the blunt instrument of the Espionage Act – to which there is no permitted defence – against someone behaving with journalistic intent to disclose information for which a serious public interest argument was comfortably made.

That precedent is what should alarm journalists – or, as they would regard themselves, “proper journalists” – as they ponder what’s happened to Assange. He had to be made an example of – five years in the modern equivalent of the medieval stocks – in order to discourage others. Whether the others quite appreciated what was going on is a moot point: some were too hung up on whether or not Assange qualified as one of them. They’ll find out in due course.

His treatment – along with more draconian laws in countries such as the UK and Australia – will undoubtedly have a chilling effect on genuine and legitimate reporting on national security issues. A result for government and the secret state. For the rest of us, not so much.

Assange’s freedom likely owes much to the intervention of Australian politicians, up to and including prime minister Anthony Albanese. One thing we can be sure of is that no US government would have tolerated a US citizen being treated in the way Assange, an Australian, has.

Imagine an American journalist based in London being extradited to, say, Delhi to spend time in jail for exposing secrets the Indian government – with its own version of the Espionage Act – would rather keep under wraps. Actually, you can’t imagine it: it would never happen.

The national security beat in any conventional news organisation is one of the hardest. Your job is to shine a light on an area of quasi-governmental activity which, by definition, prefers to act in the dark. Some reporters manage to strike only a dimly flickering flame; others wield a fierce searchlight. But the brave ones do so at some risk to themselves and to the institutions they represent.

We need the bright-light wielders in an age when the state has the technological potential to pry into every individual’s deepest secrets. The National Security Agency (NSA) whistleblower, Edward Snowden, disclosed how security agencies have powers that make George Orwell’s Nineteen Eighty-Four read like a fairy tale.

Snowden, via a handful of journalists in the UK and US, showed how any government could exploit the power of modern computing to destroy a concept of privacy that began to be established in the English courts in the 18th century. It was 250 years ago that judges started to develop the idea that your home was, in effect, a castle against state intrusion. How quaint.

Several courts have subsequently found that Snowden’s concerns were justified. But Snowden himself, like Assange, was threatened with the Espionage Act, and could well spend the rest of his life in exile. A British editor who collaborated with such a whistleblower in future could well face years in prison.

The grandfather of modern whistleblowers, Daniel Ellsberg, died last year aged 92. It was he who risked everything to show the world – via The New York Times and The Washington Post – the secret truth about Vietnam. President Nixon denounced him as a traitor and he, like Assange and Snowden, was threatened with the Espionage Act.

Long before he died, he had become widely treasured as something of a hero. More importantly, he was central to the Pentagon Papers case, in which two editors, backed by two resilient publishers, established the principle that no government could, except in the most exceptional circumstances, use prior restraint to prevent the publication of material for which there was an arguable public interest.

The Supreme Court, by a majority of 6-3, denied the continued injunction against the papers. Justice Hugo Black said: “In revealing the workings of government that led to the Vietnam war, the newspapers did precisely that which the Founders hoped and trusted they would do.”

The press had a duty, he added, “to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fever and foreign shot and shell. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible and continuing violation of the first amendment”.

For more than 50 years, journalists have benefitted from that robust celebration of their role – even when, or perhaps especially when, revealing truths about national security. The cases of Assange and Snowden establish a different kind of precedent. And it’s not a good one.