By Alexander Mercouris


September 28, 2020    Special to Consortium News


Following the Julian Assange case as it has progressed through its various stages, from the original Swedish allegations right up to and including the extradition hearing which is currently underway in the Central Criminal Court in London, has been a troubling and very strange experience.

The U.S. government has failed to present a coherent case.

Conscious that the British authorities should in theory refuse to extradite Assange if the case against him were shown to be politically motivated and/or related to Assange’s legitimate work as a journalist, the U.S. government has struggled to present a case against Assange which is not too obviously politically motivated or related to Assange’s legitimate work as a journalist.

This explains the strange succession of one original and two superseding indictments.

The U.S. government’s first indictment was based on what was a supposedly simple allegation of computer interference, supposedly coordinated in some sort of conspiracy between Assange and Chelsea Manning.

This was obviously done in an attempt to dispel the idea that the request for Assange’s extradition was politically motivated or was related to Assange’s legitimate work as a journalist.

However lawyers in the United States had no difficulty pointing out the “inchoate facts” of the alleged conspiracy between Assange and Manning, whilst both lawyers and journalists in the United States and elsewhere pointed out that the facts in the indictment in fact bore all the hallmarks of action by a journalist to protect a source.

The result was that the U.S. government replaced its indictment with a first superseding indictment, which this time was founded largely on the 1917 Espionage Act, and was therefore closer to the real reasons why the case against Assange was being brought.

However, that made the case look altogether too obviously politically motivated, so it has in turn been replaced by a second superseding indictment, presented to the court and the defence team virtually on the eve of the trial, which has sought to veer back towards strictly criminal allegations, this time of involvement in computer hacking.

More Problems for Another Indictment

The allegations in the second superseding indictment have however faced major difficulties, in that they do not seem to concern the United States and may not even be actual crimes.  Also they rely heavily on the evidence of a known fraudster, whose “evidence” is inherently unreliable.

The U.S. government has failed to make clear whether the additional allegations in the second superseding indictment are intended to constitute a separate standalone case.  Initially they appeared to deny that they did; then they hinted that they might do; now however they seem to be acting as if they don’t.

As if that were not confusing enough, the U.S. government and its British lawyers have floated confusing and contradictory theories about whether or not the British authorities can extradite Assange even if the case against him is politically motivated, and even if it is related to his journalistic activities.

Initially they seemed to be arguing that — contrary to all British precedent and the actual text of the extradition treaty between the U.S. and Britain — Britain can in fact extradite Assange to the U.S. on a politically motivated charge, because the enabling Act which the British Parliament passed, which made the extradition treaty between the U.S. and Britain a part of British law, is silent on whether or not individuals can be extradited to the U.S. on a politically motivated charge.

This argument of course came close to conceding that the case against Assange is politically motivated after all.

The same inconsistencies have beset the U.S. government’s arguments as to whether or not Assange is being charged under the Espionage Act for activities related to his work as a journalist. This threadbare argument, at least for the moment, seems to have been abandoned.  At least nothing has been heard of it throughout the current hearing.  Instead the U.S. government and its British lawyers have argued, in the face of the incredulity of a string of expert and factual witnesses, that the case is not politically motivated after all.

Initially the U.S. government’s position was that he was not.  This was based on some theory — never satisfactorily explained or articulated — that Assange in some way is not a journalist, even though he is charged with doing things that journalists do.

Faced by a barrage of expert witnesses who pointed out that the charges brought against Assange under the Espionage Act do in fact relate to work journalists do, the U.S. government midway through the hearing reversed course.

Now it says that the charges against Assange not only do relate to his work as a journalist, but that they can be brought against any journalist who does the things Assange is being charged with having done.  The U.S. government has even argued that The New York Times would have been successfully prosecuted under the Espionage Act for publishing the Pentagon Papers, because that was an action essentially identical to the ones for which Assange is being charged.

The implications for journalists of this astonishing reversal are truly shocking.  It is staggering that in the media it has attracted no attention.

Trouble with Witnesses 

The U.S. government has shown the same lack of coherence in its response to the defence’s impressive lineup of expert witnesses.

The conventional way of responding to an expert is to call another expert to state a contrary view.  On the critical issues of U.S. law, especially the protections provided to journalists by the First Amendment to the Constitution, as well as on the politics in the U.S. behind the Assange prosecution, the U.S. government has however done no such thing.  Presumably it has found it difficult or impossible to find experts who can be relied upon credibly to state a contrary view.

Instead, armed only with affidavits from U.S. Justice Department officials, who are of course not impartial experts at all, but who are part of the U.S. government’s legal team, the U.S. government’s British lawyers have been left to argue that the defence’s experts are not really experts at all — an impossible argument to make convincingly in my opinion — and to debate with the experts points of U.S. politics and U.S. law — including difficult points of U.S. constitutional and case law — about which the experts are by definition far more knowledgeable than the British lawyers.

The result, inevitably, has been a series of humiliations, as the lawyers have been repeatedly caught out by the experts making basic errors of fact and interpretation about the points which they have sought to argue.

Unsurprisingly, the lawyers have attempted to make up for this by trying to intimidate and denigrate the experts, in a way that has only highlighted their own lack of expertise in the relevant areas by comparison with that of the experts.

Given the collapse into incoherence of the U.S. government’s case, it is unsurprising that the U.S. government’s British lawyers are now reportedly trying to persuade the Judge against hearing closing arguments.

Given the constant shifts and reversals in the U.S. government’s position, preparing and presenting a closing argument to the court which would be internally consistent and credible must be fast becoming a nightmare.  If closing arguments do take place, as I still expect, it will be interesting to see which of the many conflicting arguments and theories they have made the U.S. government’s lawyers finally run with.

On its face the U.S. government’s case ought to be close to collapse.  There was even a point in the hearing where one of the U.S. government’s British lawyers apparently admitted to the judge that the reason for the second superseding indictment was that the first superseding indictment was “failing.”

If so, then given that the charges being prosecuted against Assange are still basically those set out in the first superseding indictment, the case against Assange ought to be dismissed, and the U.S. government’s request for his extradition ought to be refused.

The Underlying Truth

It remains to be seen whether that is what actually happens.  However, that brings me to the single most important fact, and the underlying truth, about this extraordinary case.

It is very easy when following the intricacies of such a complex legal process to lose sight of what this case is really about.

Ultimately the U.S. government is not pursuing Julian Assange because he helped Chelsea Manning take certain steps with a computer to conceal her identity, or because he had some historic contacts with hackers, or because he became involved in some activities in Iceland, which caused him to fall foul of a fraudster (and FBI informant).

Nor is it because Assange received and published classified material.  In the U.S. the receipt and publication by the news media of classified material has grown to almost industrial levels.

It is because Assange, to a greater extent than any other journalist since the end of the war in Vietnam, has exposed the darkest and most terrible secrets of the U.S. government.