I hear you dancing every day; Forget the world and let the music play… The Assange Decision, Journalism, and Espionage

By now, everybody’s opinion about Assange is rusted in place.  There’s nothing fruitful in entertaining a discussion about whether Assange was right or wrong, or what kind of person Assange is: we all ‘know’ the ‘facts’ (or, rather, we’ve settled on which version of them suits us best) and each ‘side’ of the discussion struggles to believe that the other side seriously exists.

So it’s important that no discussion of Assange should actually be about Assange.  A level of abstraction is needed for productive discussion.

In USA v Assangethe Magistrates’ Court was unable to release Assange to the United States due to section 91 of the Extradition Act 2003 (UK) which states:

Section 91
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person’s discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.

Baraitser J believed that it it would be unjust or oppressive to extradite Assange because he was a very high risk of self harm.  Assange otherwise lost every other substantive issue of law.

One question sticks out for further inquiry: are the activities described in the judgement the activities of a normal journalist and, if so, how is journalism distinct from enemy intelligence operations?

The argument was repeated enough.  An intelligence analyst in the US Army (Manning) leaked classified content to Assange; many people, especially journalists, argued that this was normal, everyday journalist things.  You build up a relationship with a source and facilitate them leaking to you.

What is frequently at the centre of these debates–and definitely in this debate–is the idea of the whistleblower: a person sees something so morally repugnant that the public simply must see it.

But what if there’s no moral repugnancy at the core of the situation?  What if we’ve just got leaking for the sake of uncovering the secrets of a government?

The Assange judgement confronts us with this exact problem.  As we already knew, Manning was philosophically opposed to the war and was struggling with serious personal (and absolutely devastating) issues.  But the leaks aren’t directed to revealing something morally repugnant; the leaks are directed towards revealing all of the classified documents.

WikiLeaks solicited material by publishing a list of information it wished to obtain, including ‘bulk databases’ including ‘Intellipedia’ (a CIA database).  Manning uploaded detainee assessment briefs, and various other bulk files (including videos).  At one point, she tells Assange that ‘after this upload, that’s all I really have got left’, to which Assange replies: ‘curious eyes never run dry’.

It is increasingly difficult to see this in the way that we often discuss the relationship between journalists and sources.  And that’s not to say that this relationship is entirely straightforward.  Consider these examples:

  1. Confidential source has contact with a journalist and points them in the direction of material that’s already in the public domain but has been overlooked by most of the media (like an official report with an utterly damning piece of information hidden in the data).
  2. Confidential source has contact with a journalist and provides confidential deliberative materials about a document or decision that was in the public domain (for example, evidence of disagreements between senior officials, or between departments and ministers’ offices).
  3. Confidential source has contact with a journalist and provides a document that is classified because it reveals something morally repugnant that has been concealed by government.
  4. Confidential source has contact with a journalist and provides batch documents of classified materials unrelated to a specific complaint of moral repugnancy.

I, of course, err on the side that none of these is really okay simpliciter, but I absolutely understand people who might think that (1) was always okay, that (2) and (3) depend entirely upon the specifics of the case.  But (4) is the difficult one, because it looks indistinguishable from straight up espionage.

And yet (4) is exactly what we’re discussing in USA v Assange, but also what many pro-Assange journalists claimed was merely how modern journalism is done.  This is mind-boggling.

We see mounting evidence that WikiLeaks has some kind of relationship with Russia, if only as a laundromat for documents.  Even if this relationship is hyped, is there a substantive difference between WikiLeaks grooming contacts within government organisations to steal classified documents (scenario (4) above), and a foreign government doing it?

And then flip this the other way: if this is really what Australian journalists are currently doing in Australia, why shouldn’t this be a criminal activity?

Take the example of Annika Smethurst, for example.  She was leaked a document which she believed revealed a government proposal to expand the role of the Australian Signals Directorate (which currently has a focus on intercepting foreign communications and electronic data) to include the interception of information about Australians.  There’s no obvious moment of moral repugnancy here (to be morally outraged about this suggests either a misunderstanding about the policy or just fringe ideological beliefs about the interception of signals), so it’s not like the source was a whistleblower.  First, should this be legal?  Leaking internal discussion papers is a scumbag move, but we could imagine reasonable debate on the topic of whether or not it should be a crime.

But what if Smethurst wasn’t just a mere recipient of the document, but was instead grooming her source for leaks about anything and everything.  And then going further in supplying tools to the source to obtain more classified materials?  At what point does Smethurst stop being a journalist and start being an enemy intelligence agent?

The point of the Smethurst example is not to claim that she is an uber-spy for some foreign government, but instead to walk by steps along a spectrum of activity from a recipient of information to being an instigator of cybercrime indistinguishable from enemy intelligence.  Where on this line is the boundary between journalism and criminality?  Is there some region between these points on the spectrum, like a clear demilitarised zone?

These questions are difficult and there seem to be a range of available reasonable positions.  It is just very, very difficult to see in the case of Assange how his activities are consistent with what we want to see from journalists.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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