Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment’s existence except as necessary to issue or execute a warrant or summons.
~Federal Rules of Criminal Procedure December 1, 2010~
Last week an Australian citizen, Julian Assange, walked into the Ecuadorian embassy in the United Kingdom seeking political asylum. He knows only too well what a sealed indictment is, as do his family and supporters; they all wait patiently for Ecuador’s decision on his request.
Meanwhile, Foreign Minister Bob Carr’s not only admitted on Lateline last week that he did not know what a sealed indictment was, but he also gave this disturbing answer:
STEVE CANNANE: One of the questions that’s being raised about Julian Assange is whether he’s a journalist and if he’s a journalist whether he would be subject to the Espionage Act. As a former journalist yourself, do you consider Julian Assange to be a journalist?
BOB CARR: I have not a view on that, Stephen. I’d – like anyone – like every journalist I know, I’d need to get a lawyer’s advice on whether journalists have that immunity or whether we would stand-whether we would stand subject to espionage legislation.
Notice that he didn’t answer the question? The question was simple: did he consider Julian Assange a journalist? Yes or no? Carr’s omission to answer that question is both revealing and disturbing.
After four years of research the Project for Excellence in Journalism identified and clarified the principles that underlie “journalism” as involving a first obligation to the truth; its first loyalty to its citizens; its essence being a discipline of verification, its practitioners must maintain an independence from those they cover; it must serve as an independent monitor of power; it must provide a forum for public criticism and compromise; it must strive to make the significant interesting and relevant; it must keep the news comprehensive and proportional; and its practitioners must be allowed to exercise their personal conscience.
By those standards, the work of WikiLeaks obviously fits the bill.
If the United States Government isn’t interested in or considering prosecuting Assange under the Espionage Act, as our politicians keep suggesting, why do they have any difficulty answering that question?
The fact that our elected representatives aren’t prepared to answer that question should be ringing alarm bells. Every concerned Australian, and particularly every journalist, should be demanding an answer from the Prime Minister, the Attorney-General and the Foreign Minister, an unequivocal answer by reference to objective standards like the principles determined by the Project for Excellence in Journalism.
Because prosecutions against the media under the Espionage Act are unprecedented. In the history of the United States, no member of the news media has never been criminally prosecuted under the Espionage Act for gathering, publishing, or retaining classified information. It’s another reminder that the First Amendment (Amendment I) to the United States Constitution – part of the Bill of Rights – includes a prohibition against the making of any law abridging the freedom of speech or infringing on the freedom of the press.
We must judge governments not on what they say but on what they do. Our Government representatives are not prepared to describe Assange as a journalist or an online publisher, even though their opinions are just that rather than legal characterisations, and they’re treading water on the secret indictment question, but various Freedom of Information requests have revealed that:
- the Australian embassy in Washington knew of an “active and vigorous inquiry into whether Julian Assange can be charged under US law, most likely the 1917 Espionage Act” and that the “WikiLeaks case was unprecedented both in its scale and nature”;
- Australian diplomats have requested “advanced warning of any public announcement of the results of US investigations or proposed actions”, but have raised no concerns about the Australian journalist being pursued by US prosecutors on charges of espionage and conspiracy;
- Washington provided Canberra with regular updates, including reporting on the issuing of subpoenas to compel WikiLeaks associates to appear before a grand jury in Virginia, and US State Department efforts to access Twitter and other internet accounts; and
- the Australian embassy has obtained “confidential or legal commentary“ from private law firms “on aspects surrounding WikiLeaks and/or the positions of Julian Assange and Bradley Manning.”
Washington embassy cables sent to Canberra between 1 November 2010 and 31 January 2012 do not contain any references to representations made by Australian diplomats to US officials concerning proper extradition processes, even though we were assured by Attorney-General Nicola Roxon in April this year that they had been made. It appears that it was not until after Ms Roxon’s appearance on Q&A that she made representations to Ambassador Jeffrey Bleich, US Homeland Security Janet Napolitano and US Deputy Attorney-General James Cole.
Similarly, the Australian Government has confirmed that is has made representations to the Swedish Government about due process being applied to Mr Assange, and that assurances to that effect have been given by the Swedish Government. If they can tell us that, why can’t they tell us exactly what questions were asked and what assurances were received?
The obvious inference is that the Australian Government understands how important it is for US prosecutors that Assange remain outside the protection of First Amendment rights. Outside that he is marked for processing as a person with a specific criminal intent to injure the United States by recklessly disregarding the effect of the disclosures made, a person acting in bad faith, a person not committed to the traditional media functions but to the mass indiscriminate disclosure of sensitive. They need him to have those attributes so they can differentiate between WikiLeaks and other news outlets.
The Australian Government must also be well aware that the Article VI of the Supplemental Treaty between the United States and Sweden gives the Swedish authorities the power to temporarily surrender Assange to the United States for the purpose of prosecution, so Swedish authorities could comply with the Australian Government’s request that they follow “due process” and still deliver the desired result.
What is clear is that no government wants the truth reported. They know the news is reported, so there are out there to ensure that what is reported is their news.
What does it mean for the Gillard Government?
It’s possible that Assange’s request may not lead him to asylum. Ecuador might refuse it.
But on the other hand the very fact of his request has consequences. In the first place the issue has now been taken out of control of the usual hands. In the second place, if the Ecuadorian Government conducts an objective examination of the basis for Assange’s application for political asylum and makes public its conclusions then our Government should expect to have to face the excruciatingly embarrassing fact that it has done nothing.
President Correa has a reputation for picking his battles. In 2008 Assistant Professor Jennifer Collins of the Department of Political Science at the University of Wisconsin-Stevens Point wrote in her paper ‘Rafael Correa and the Struggle for a New Ecuador’ that:
“Correa has not disappointed his supporters in his willingness to stand up to powerful international and domestic interests and to use his political capital to attempt to carry out fundamental changes to Ecuador’s political and economic system. After years of struggle, the Ecuadorian left is finally in a position to set the political agenda and the moment is pregnant with the possibility of change: to bury the failed neo-liberal experiment, to create a state that can defend its sovereignty, and to lay the foundation for a development model that incorporates the poor and protects the environment.”
If, in his own words, President Correa wants a “brave, sovereign and dignified homeland, equitable, just and without misery”, then it’s unlikely that diplomatic subtlety or political inconvenience will constrain him in commenting on the international stage on the Assange case or the Australian Government’s response to or participation in it.
Can’t the Government see that it’s Groundhog Day? There is a difficult election coming up and what we’re seeing is a repeat of the David Hicks case. We have a government that seems to think it can blindly ignore or fudge its way out of a situation like this, as former Prime Minister John Howard initially did with Hicks, until too late they realise the Australian people are very interested in Assange’s case, sceptical of the government “clean hands” line, concerned about the big boys’ bullying tactics and supportive of a man who had the courage to expose the truth.