Essay by Jean-Jacques Subrenat.
Julian Assange and Edward Snowden are each in their own kind of limbo – one holed up in the Ecuadorian embassy in London and the other an unintended guest in Moscow. There seems to be no viable solution to either man’s exile and each has been treated very differently from some other famous whistleblowers.
Each of them has faced harsh criticism and high praise. Critics argue that both jeopardised the national security of the United States. Supporters see that they exposed, at great personal risk, malpractices of U.S. military and intelligence. Both cases are rarely examined in a dispassionate way, on the basis of international law, democratic principles and diplomatic practices, or based on how others who were ultimately seen as whistleblowers were dealt with.
Whistleblower or leaker?
In 1971, Daniel Ellsberg, with the help of Anthony Russo photocopied confidential documents about the conduct of the U.S. war in Vietnam which showed how successive governments had misled the public about the war. These Pentagon Papers were published by the New York Times and shortly afterwards by the Washington Post. Under the Espionage Act of 1917, both men were charged with espionage, theft and conspiracy, which potentially carried a maximum sentence of 115 years for Ellsberg and 35 years for Russo. On 11 May 1973, all the charges were dismissed by Southern District of California Judge W. W. Byrne Jr., who incidentally had been appointed to that position by President Richard Nixon.
In 2012, with John Perry Barlow and others, Ellsberg founded the Freedom of the Press Foundation, an association supporting and financing public interest actions in favor of free speech and freedom of the press (WikiMonde). And in 2017, the story of the Pentagon Papers was made into a movie The Post, by Stephen Spielberg.
Another whistleblower, Chelsea Manning, a former U.S. Army soldier, was accused of stealing and leaking hundreds of thousands of classified or sensitive documents, published online by Assange’s Wikileaks in 2010 and 2011. In 2013 Manning was convicted by court martial on a number of counts in violation of the Espionage Act and other offences, including “aiding the enemy” – a charge which could have carried a death sentence. Manning’s decision to leak these documents was severely criticised. In 2010 Admiral Michael Mullen, then Chairman of the Joint Chiefs of Staff, alleged that the Manning leaks had placed the lives of U.S. soldiers and Afghan informants in peril. On the other hand, civil rights activists considered Manning to be the most important whistleblower since Ellsberg.
She was sentenced to 35 years in maximum-security detention, where she served from 2010 to 2017.
In January 2017, shortly before leaving the White House, President Barack Obama commuted all but four months of her sentence.
In January 2018 Manning, now living as a free citizen, filed her candidacy for the primary election in June 2018, to represent Maryland in the U.S. Senate.
Exile in Knightsbridge
Julian Assange, an Australian citizen, founded Wikileaks in 2006, and became a public figure in 2010 with the publication of documents leaked by Chelsea Manning. For Assange, Wikileaks is not just a platform but an investigative news outlet – he argues he deserves the same protection as a journalist.
In November 2010, Stockholm requested his extradition from the UK to Sweden over an alleged sexual assault and a case of alleged rape. On the assault case because the Swedish court wasn’t able to conduct the appropriate interview with Assange within a prescribed time, statutes of limitation led to the case being dropped. In the case of the rape allegation the Swedish prosecutor dropped that investigation last May saying he saw no chance of being able to question Assange. Here’s a report from The Guardian which elaborates. (Here’s Swedish site The Local explaining the same cases and the position of British police on what they are seeking Assange for.
Assange argued that extradition to Sweden would have put him in danger of a forceful transfer to the United States for having published documents affecting the security of the United States. In 2012 Assange sought and was granted asylum in the Ecuadorian embassy in London, and has lived there ever since.
Since November 2010 the U.S. authorities have been investigating Wikileaks and Assange for possible prosecution under the Espionage Act, with a grand jury in Alexandria (Virginia), and investigations by agencies such as the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA). But so far (at least to public knowledge) no formal charges have been filed in the United States against Assange. His supporters and lawyers insist that he cannot be accused of theft or misuse of classified documents, because technically he had not stolen the documents, but also because as an editor-in-chief he is governed by the First Amendment constitutional rules which shield publishers.
The political debate about Assange has ranged from enthusiastic approval — including from then candidate Donald Trump (“WikiLeaks, I love WikiLeaks.” Business Insider) to condemnation by Hillary Clinton who described Wikileaks as “an arm of Russian intelligence” (The Times). In the United States, Assange has been called a “high-tech terrorist” (former vice president Joe Biden quoted by The Guardian). Others have publicly called (The Intercept) for his assassination.
In Australia, then Prime Minister Julia Gillard considered Assange’s leaks to be illegal, but the Australian police declared he had not broken any Australian law. As a way of seeking an honourable solution, in December 2017 Ecuador granted Assange citizenship (The Guardian) and even offered him diplomatic status. But asking the UK to approve such a diplomatic status (agrément in diplomatic parlance) was bound to be unsuccessful, as London could not be expected to renege on its stated position, which was to arrest Assange if he stepped out of the Ecuadorian embassy and onto UK territory. Indeed, on 5 February 2018, the UK Crown Prosecution Service stated: “Assange had been released on bail in proceedings; he was under a duty to surrender to the custody of the court and he failed to surrender at the appointed time for him to do so. Therefore a warrant stands” (The Guardian).
Judge has ruled against the first technical point the court now expected to hear & decide on the other points. https://t.co/WTUAhNEw5d
A different approach might have been worth trying – for instance by Australia or Ecuador granting him temporary diplomatic status and appointing him as a member of their delegation to a multilateral organisation, whose agrément could then have been sought.
Meanwhile in Moscow…
‘In the course of violating important law, he also provided an important service’ – Al Gore on Snowden
Edward Snowden, a specialist in computer research, had access to secret information (BBC) in his role as a contractor for the firm Booz Allen Hamilton which was working for the Central Intelligence Agency. Data he saw convinced him that mass surveillance was being conducted by the National Security Agency without adequate judicial control or legislative oversight. In 2013, working with the The Guardian, he made some of these documents available to a selection of newspapers across the world. In June 2013 the U.S. Department of Justice unsealed charges against him on counts of violating the Espionage Act of 1917, theft of government property, and unauthorised communication of national defence information and classified communications intelligence information to unauthorised persons.
In 2013, Director of National Intelligence James Clapper, said that Snowden’s leaks caused “huge, grave damage” (Washington Post) to U.S. intelligence capabilities, while ex-CIA Director James Woolsey argued that if Snowden were convicted of treason, he should be hanged (The Hill). On the other hand, Daniel Ellsberg observed that Snowden’s dissemination of NSA documents was the most significant leak (The Verge) in US history.
Former Vice President Al Gore has said Snowden “clearly violated the law…But what he revealed in the course of violating important laws included violations of the U.S. Constitution that were way more serious than the crimes he committed. In the course of violating important law, he also provided an important service…Because we did need to know how far this has gone.”
As noted by Jeremy Diamond on CNN, “On June 2, 2015, the US Senate passed, and President Obama signed the USA Freedom Act which restored in modified form several provisions of the Patriot Act that had expired the day before, while for the first time imposing some limits on the bulk collection of telecommunication data on US citizens by American intelligence agencies. The new restrictions were widely seen as stemming from Snowden’s revelations”.
In late December 2017, Wikipedia and WikiTribune founder Jimmy Wales interviewed Snowden, and asked about his concerns for journalism. Snowden replied: ”A lot of people like to think of journalism and whistleblowing as two separate topics, but in reality, they are the same issue. We can’t have real journalism without informed, reliable sources being able to tell journalists what they need to know, rather than what they are permitted to know, either by policy or process or presidents, or by law. If the law is being broken, if the public’s rights are being violated, journalists have to be able to access that material.”
In a January 2018 interview for The Guardian, Ellsberg and Snowden discussed Spielberg’s film The Post. Ellsberg asked Snowden: “Is whistleblowing worth prison or a life in exile? ’’, to which Snowden answered that there are things worth dying for. Snowden himself was the subject of Citizen Four, a documentary by Laura Poitras which earned her the Pulitzer Prize in 2014. Oliver Stone made a fictional film, Snowden, distributed in 2016.
When Snowden took refuge in Hong Kong to discuss the leaks with Guardian staff and later went to Moscow — theoretically on his way somewhere else — U.S. authorities cancelled his passport, immediately turning him into something like a stateless, displaced person, or even a refugee.
Options for Snowden
In the current context (with Donald Trump as President, a Republican majority in both Houses of Congress), a pardon for Snowden seems improbable.
One solution might be for a not-for-profit organization or group of public figures to call for Snowden to receive refugee status in a democratic country. A second could be for Snowden’s attorneys to seek on his behalf permission to stay temporarily in a country willing to replace Russia in hosting him (Snowden apparently sought refuge in France, but his request was rejected by then President Francois Hollande). A third option could be to call for any democratic state to grant Snowden citizenship, and a passport with which he could then travel. Fourth, a country willing to do so could grant Snowden citizenship and the temporary benefit of diplomatic status, and to appoint him as a member of their delegation to an international organisation, so as to give sufficient time for a more permanent solution to be worked out – the agrément option.
Beyond the individual cases of Assange and Snowden, there have been calls for a better implementation of fundamental rights, protection of privacy, as well as effective judicial control and parliamentary oversight of mass surveillance. To take one example of civil society engagement on these issues, in January 2012 Wikipedia had a self-imposed blackout to protest against some provisions of the Stop Online Piracy Act (SOPA).
Whistleblowers are treated very differently from one country to another, and there is no harmonisation between national legislations or measures to protect whistleblowers – whether from the government or the private sector. Julian Assange and Edward Snowden remain exiles in limbo. Do they warrant the protection democracies would seek for journalists?