Ecuador’s President Lenin Moreno traveled to London on Friday for the ostensible purpose of speaking at the 2018 Global Disabilities Summit (Moreno has been confined to a wheelchair since being shot in a 1998 robbery attempt). The concealed, actual purpose of the President’s trip is to meet with British officials to finalize an agreement under which Ecuador will withdraw its asylum protection of Julian Assange, in place since 2012, eject him from the Ecuadorian Embassy in London, and then hand over the WikiLeaks founder to British authorities. Moreno’s itinerary also notably includes a trip to Madrid, where he will meet with Spanish officials still seething over Assange’s denunciation of human rights abuses perpetrated by Spain’s central government against protesters marching for Catalonia independence. Almost three months ago, Ecuador blocked Assange from accessing the internet, and Assange has not been able to communicate with the outside world ever since. The primary factor in Ecuador’s decision to silence him was Spanish anger over Assange’s tweets about Catalonia.
It is thus highly unlikely that Moreno – who has shown himself willing to submit to threats and coercion from the UK, Spain and the U.S. – will obtain a guarantee that the U.K. not extradite Assange to the U.S., where top Trump officials have vowed to prosecute Assange and destroy WikiLeaks.
The central oddity of Assange’s case – that he has been effectively imprisoned for eight years despite never having been charged with, let alone convicted of, any crime – is virtually certain to be prolonged once Ecuador hands him over to the U.K. Even under the best-case scenario, it appears highly likely that Assange will continue to be imprisoned by British authorities.
The only known criminal proceeding Assange currently faces is a pending 2012 arrest warrant for “failure to surrender” – basically a minor bail violation charge that arose when he obtained asylum from Ecuador rather than complying with bail conditions by returning to court for a hearing on his attempt to resist extradition to Sweden. That charge carries a prison term of three months and a fine, though it is possible that the time Assange has already spent in prison in the UK could be counted against that sentence. In 2010, Assange was imprisoned in Wandsworth Prison, kept in isolation, for 10 days until he was released on bail; he was then under house arrest for 550 days at the home of a supporter. Assange’s lawyer, Jen Robinson, told the Intercept that he would argue that all of that prison time already served should count toward (and thus completely fulfill) any prison term imposed on the “failure to surrender” charge, though British prosecutors would almost certainly contest that claim. Assange would also argue that he had a reasonable, valid basis for seeking asylum rather than submitting to UK authorities: namely, well-grounded fear that he would be extradited to the U.S. for prosecution for the act of publishing documents. The Obama administration was eager to prosecute Assange and WikiLeaks for publishing hundreds of thousands of classified documents, but ultimately concluded that there was no way to do so without either also prosecuting newspapers such as the New York Times and the Guardian which published the same documents, or create precedents that would enable the criminal prosecution of media outlets in the future. Indeed, it is technically a crime under U.S. law for anyone – including a media outlet – to publish certain types of classified information. Under U.S. law, for instance, it was a felony for the Washington Post’s David Ignatius to report on the contents of telephone calls, intercepted by the NSA, between then National Security Adviser nominee Michael Flynn and Russian Ambassador Sergey Kislyak, even though such reporting was clearly in the public interest since it proved Flynn lied when he denied such contacts.
That the Washington Post and Ignatius – and not merely their sources – violated U.S. criminal law by revealing the contents of intercepted communications with a Russian official is made clear by the text of 18 § 798 of the U.S. Code, which provides (emphasis added):
“Whoever knowingly and willfully communicates … or otherwise makes available to an unauthorized person, or publishes … any classified information … obtained by the processes of communication intelligence from the communications of any foreign government … shall be fined under this title or imprisoned not more than ten years, or both.”
But the U.S. Justice Department has never wanted to indict and prosecute anyone for the crime of publishing such material, contenting themselves instead to prosecuting the government sources who leak it. Their reluctance has been due to two reasons: first, media outlets would argue that any attempts to criminalize the mere publication of classified or stolen documents is barred by the press freedom guarantee of the First Amendment, a proposition the DOJ has never wanted to test; second, no DOJ has wanted as part of its legacy the creation of a precedent that allows the U.S. Government to criminally prosecute journalists and media outlets for reporting classified documents.
But the Trump administration has made clear that they have no such concerns. Quite the contrary: last April, Trump’s then-CIA Director Mike Pompeo, now his Secretary of State, delivered a deranged, rambling, highly threatening broadside against WikiLeaks. Without citing any evidence, Pompeo decreed that WikiLeaks is “a non-state hostile intelligence service often abetted by state actors like Russia,” and thus declared: “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” The long-time right-wing Congressman, now one of Trump’s most loyal and favored cabinet officials, also explicitly rejected any First Amendment concerns about prosecuting Assange, arguing that while WikiLeaks “pretended that America’s First Amendment freedoms shield them from justice . . . they may have believed that, but they are wrong.” Pompeo then issued this bold threat: “To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.” Trump’s Attorney General Jeff Sessions has similarly vowed not only to continue and expand the Obama DOJ’s crackdown on sources, but also to consider the prosecution of media outlets that publish classified information.
It would be incredibly shrewd for Sessions to lay the foundation for doing so by prosecuting Assange first, safe in the knowledge that journalists themselves – consumed with hatred for Assange due to personal reasons, professional jealousies, and anger over the role they believed he played in 2016 in helping Hillary Clinton lose – would unite behind the Trump DOJ and in support of its efforts to imprison Assange. During the Obama years, it was a mainstream view among media outlets that prosecuting Assange would be a serious danger to press freedoms. Even the Washington Post Editorial Page, which vehemently condemned WikiLeaks, warned in 2010 that any such prosecution would “criminalize the exchange of information and put at risk” all media outlets. When Pompeo and Sessions last year issued their threats to prosecute Assange, former Obama DOJ spokesperson Matthew Miller insisted that no such prosecution could ever succeed:
For years, the Obama DOJ searched for evidence that Assange actively assisted Chelsea Manning or other sources in the hacking or stealing of documents – in order to prosecute them for more than merely publishing documents – and found no such evidence. But even that theory – that a publisher of classified documents can be prosecuted for assisting a source – would be a severe threat to press freedom, since journalists frequently work in some form of collaboration with sources who remove or disclose classified information. And nobody has ever presented evidence that WikiLeaks conspired with whomever hacked the DNC and Podesta email inboxes to effectuate that hacking.