Who wins and who loses in the Julian Assange affair

The plea bargain with which the US has decided to put an end (at least for now) to the Julian Assange affair highlights once again, and in exemplary fashion, how illusory it is to think that law represents a force to which everyone, including states, must submit by Andrea Monti – Initially published in Italian by Italian Tech-La Repubblica

In law degree courses, it is taught that this ‘force’ is called the rule of law, the birth of which, according to some, dates back to the English Magna Charta of 1215, although a little earlier, in 66 BC, Cicero wrote that ‘we must be servants of the law in order to be free’.

In the reality of (geo)political struggles, however, another concept prevails, also dear to the ancient Romans and increasingly openly applied in international law: necessitas non habet legem – need has no rules.

The cynical application of this principle is part of that key to understanding international relations that is called political realism, according to which states – but also international and a-national bodies – compete with each other to satisfy their interests and protect their existence using all the instruments they have at their disposal, including war, which, to quote von Clausewitz’s much abused expression, is merely the continuation of politics but with other means.

Read from a strictly legal perspective, Assange’s case is quite straightforward.

One person, alone or together with others, sets up an organisation to facilitate the anonymous dissemination of information intended to be secret.

Some of it was evidence of crimes, some of it was evidence of less serious offences, and some of it was -simply- not intended to be disclosed.

The organisation liaised with the sources, protected their anonymity, and assessed their ‘information treasure trove’, deciding in some cases whether and to whom to allow privileged access before finally making the material public.

Net of the peculiarities of individual legal systems, it is quite clear that the way in which Wikileaks operates constitutes a criminal conspiracy aimed at violating the various secrecy regulations and that, therefore, the criminal liability of all those who have participated in the activity is difficult to avoid (the case of those who have reused that information – the great international press – is somewhat different, because once it has been publicly disseminated, even the most unmentionable secret becomes the subject of news).

But, Assange defends himself (moreover, the only one to have paid personally), it is true that we have set up a platform that favours the dissemination of secret information even concerning activities critical to states and chancelleries, but we have done so in the name of the citizens’ right to know the facts of power and to allow effective democratic control over the way political decisions are made. We have broken the law, Assange might therefore say, in the name of a ‘greater good’.

Such an approach is by no means new. To limit ourselves to the history of the country, we need only think of the political battles over divorce, abortion and -today- end-of-life to understand how the pursuit of a political objective can also be pursued by undermining the system by turning its powers against it.

So, and herein lies the point, by agreeing to submit to the decision of a court, a person who has committed an act stipulated by law as a crime no longer to be considered as such in the society at-large, forces the state to take sides, assuming responsibility for the choice.

If society as a whole has come to believe that euthanasia should be recognised as a right, a verdict acquitting those who accompanied suffering people on their last journey sends a clear message to the legislature: that ‘social’ right must become a ‘legal’ right – that is, formally recognised. This is the way a western democratic system works.

If, on the other hand, as in the case of Assange, on the one hand one invokes the ‘right to know’ but in the name of this right one claims the right not to be prosecuted because the act was committed in the name of a ‘greater good’, then something does not work and the mechanism seizes up.

Judicial systems are far from perfect, but they essentially fulfil the function of balancing opposing interests -that of the citizen to move within the boundaries of the law, that of the state to protect its own survival and that of its fellow citizens.

For the system to work, and this is what rule of law is all about, it is necessary for everyone to play by the same rules, otherwise the social pact is broken and the (free) world plunges into a condition of total uncertainty and unpredictability.

Put another way, instead of evading trial, Assange should have accepted the trial, stood his ground before a judge and fought to assert a principle that, if recognised, would have changed history forever.

But, his defenders argue, how is it possible to think that such a trial would have been fair? When your accuser is the most powerful country in the world, how can you even imagine that the verdict would be favourable to the accused? It is clear that the option of trying Assange before a court cannot even be considered.

The arguments may be suggestive but, as one would say in a court of law, they explain too much and are contradicted by the case of Daniel Ellsberg, the ‘mole’ who revealed the secrets of US policy choices on the Vietnam War. Ellsberg, in fact, was indeed tried for having violated very important confidential information, but was not convicted because his rights were violated during the investigation and therefore the evidence could not be presented to the judge.

Whatever one thinks of the United States, a system in which the judiciary has demonstrated this level of autonomy from the political one is an intrinsic guarantee that Assange’s motives would have been scrupulously considered and that the outcome of the trial would not have already been written. 

Had it been held, Assange’s would have been a trial of epic proportions. Two opposing visions of society would have clashed, with an uncertain outcome, and whatever the verdict, a very clear rift would have been created between American citizens and the executive, but also between those of other countries and their governments that were party, even passive, to the facts revealed by Wikileaks.

This is where the consideration that opens this article comes in, about the fact that the needs of politics prevail over the formality of law.

Avoiding the trial was not only in Assange’s interest, but also in the interest of the executive, which in this way not only avoided bringing the secrets revealed by Wikileaks into the international spotlight, but also avoided the propagation of further information on the modus operandi of governmental structures and, above all, averted the risk (perhaps minimal, but existing) that a ruling would unhinge the political structure of the government’s handling of secrets.

It is no coincidence, then, that Assange’s case ended in a plea bargain, i.e. with a pragmatic solution that lets the accused go free after having kept him in formal and then also substantive detention for over ten years, but at the same time prevents a judge from entering into the merits of how an executive applies its national security strategies.

This affair ultimately has two non-winners and one loser. The first, for the reasons just stated, is undoubtedly the US government and Julian Assange; the second is the rule of law that has been beaten not only by the necessities of realpolitik, but also by the arrogant claim of technologically mediated direct democracy that claims to intervene globally in the name of über-rights, i.e. subjective claims that, for that alone, should be recognised as prevailing against everything and everyone.

Neither more nor less than what happens with a radical, fundamentalist and violent religious faith.

Leave a Reply

Your email address will not be published. Required fields are marked *