Assange and Due Process

Despite having broken the law, Julian Assange ‘did the right thing’ by revealing, or rather, facilitating the revelation, of government abuses and atrocities. This is, in a nutshell, the rationale behind the call for his release vocally asked by activists and (last minute) free speech defenders. by Andrea Monti – Initially published in Italian on Strategikon – an Italian Tech Blog

However emotionally ‘strong’ such an argument may be, it is not sustainable because it is based on a ‘religious’ conception that confuses law with ethics and rejects the judicial process as a means of ascertaining responsibility.

It implies that personal ethics can and should prevail over a system of rules. Imperfect as it is, a trial-based justice is still the only one capable of preventing everyone from taking justice into their own hands (or the sovereign from taking it out on everyone, according to their whims).

So, Assange should be tried -tried, not necessarily convicted- because he did (or thought he did) the right thing.

In the name of an ethical principle, he chose to violate a law that he thought was wrong. Therefore, he should accept the justice of men even though he believes he is not at fault. He should let the judges investigate if a rule ‘covering’ not only the interests of the State but also repugnant and unconfessable actions is unacceptable.

If, however, ‘doing the right thing’ is the magic word for evading the law, then the spell should also apply to those who have committed severe violations ‘in the name of the national interest’. This is the case for those who have entertained unconfessable relations with extremists and criminals or have been involved in attacks to stem political drifts deemed dangerous by the establishment.

In this perspective, the story of the Pentagon Papers -the leak of confidential US government documents on policy decisions relating to the Vietnam War- is highly indicative. The evidence against the author of the leak, Daniel Eisberg, was gathered illegally, and the FBI agents responsible for the action were convicted. Still, President Reagan granted them a pardon because he believed that the documents had shown that they acted not with criminal intent but in the belief that they had grants of authority reaching the highest government levels.

It is clear that, in this case, applying the ethical ‘do the right thing’ criterion contrasts with the ethical convictions of those who believe that the palaces of power should be made of glass and that individual rights can never be violated by the State. However, it is perfectly consistent with those who believe that the national interest prevails over individual rights and that formal rules are of no use when working for the greater good.

How do we get out of the dead-end of this contradiction? Through the only possible escape route: that of the trial. It is uncomfortable, bumpy, and full of dead ends, but it is the only one available.

Only the individual check carried out by a court can make it possible to assess whether, in a specific case, the rules have actually been violated or whether there are margins to apply circumstances that exclude punishment even if the fact has been committed. This happened in the case of the FBI officials who illegally gathered evidence against Eisberg and in more recent and geographically close cases involving representatives of our civil services.

Of course, coming back to the point, there is widespread concern that Assange’s trial will not be fair, but, again, this is irrelevant. To understand this, one only has to read what Leonardo Sciascia wrote in Il Contesto, about the irrelevance of justice, the non-existence of judicial error and the role of the verdict as the final act of a ‘bureaucratic’ process.

As every criminal lawyer knows, the trial is the most imperfect of instruments for deciding a person’s freedom, but it is the only one we have. And the fact that it works poorly does not justify refusing to use it in the name of a superior sense of justice that, nevertheless, closely resembles a claim to impunity.

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