Sunday, April 3, 2011

2011-04-02 WikiLeaks Notes: Parliamentarians question treatment of Julian Assange and WikiLeaks

UK MP quizzes Crown Prosecution Service over Assange extradition case
Liberal Democrat MP Julian Huppert has raised the relevance of the Human Rights Act to the role played by the UK Crown Prosecution Service (CPS) in Sweden's attempt to extradite Julian Assange.

In reply to Mr Huppert's questions during a joint committee hearing on human rights, Keir Starmer, director of Public Prosecutions, admitted that the CPS "are bound by the Human Rights Act, and we are bound by our duties to the court." However, he added that human-rights issues would be for the courts to determine rather than for the CPS.

Impenetrable though those legal distinctions may appear in the abstract, parliamentary attention to possible politicization of law is significant where it appears that the boundaries between law and politics are not clear and stable.

Australian MP and shadow minister reflects on WikiLeaks, Spycatcher, and freedom of the press

Malcolm Turnbull (L-Wentworth), former leader of the Opposition in the Australian House of Representatives and the current shadow minister for Communications and Broadband, spoke to Sydney University Law School on 31 March about his experiences representing former MI5 officer Peter Wright, author of Spycatcher, and about the concerns and responsibilities the Australian government faces relative to Assange's own situation and to WikiLeaks publications generally.

Turnbull's recounting of the history of the Spycatcher case is both entertaining (Mrs Thatcher's dogged pursuit ended up raising Wright's profile and making him "very rich") and instructive as an analysis of a successful campaign against prior restraint. Turnbull draws a fair parallel between the judgement of the High Court of Australia in 1980 with the decision of the US Supreme Court in the Pentagon Papers case in 1971. He then uses those precedents to criticize the current stance of the Australian government towards an Australian citizen and the publishing activities of WikiLeaks:

The High Court was very clear in declaring that an Australian Court should not act “to protect the intelligence secrets and confidential political information” of a foreign government, even one which was a very friendly one and even in circumstances where the Australian Government requested the Court to do so.

I stress this point because it has a current relevance to the case of Julian Assange who you will remember our Prime Minister, Julia Gillard, described as someone who had broken the law by publishing the contents of confidential US State Department cables.

Not only was it perfectly obvious that Julian Assange had broken no Australian law (and despite the strenuous efforts of the American authorities there is no evidence to date he has broken any American ones) but the decision of the High Court in Spycatcher make it quite clear that any action in an Australian court to restrain Assange from publishing the State Department cables would have failed.

These remarks by the Prime Minister which were echoed by her Attorney General were particularly regrettable, not simply because she was so obviously in error from a legal point of view, but whatever one may think of Assange he is an Australian citizen.
More importantly perhaps, at the time he was being described as breaking the law by Ms Gillard, prominent American politicians and journalists were describing him as a terrorist and in some cases calling for him to be assassinated.

Much of the rest of Turnbull's address is taken up with a summary analysis of WikiLeaks' publications since April 2010, particularly of the release of the US State Department cables. Turnbull's reading is relatively conservative and in some places at least misleading. He singles out two cables as dangerous releases, one concerning infrastructure in other nations that might be vital to US national interests, the other the Harare cable claiming that Morgan Tsvangirai privately supported sanctions against Zimbabwe.

I am not able to assess the whole of the cable re infrastructure, but I have read the section on my own country, Canada, and it is at its most threatening ... amusing. Any citizen could have drawn up that list with a day or two's thought. It includes a list of border crossings between the US and Canada, for example.

In the case of the Harare cable, Turnbull seems unaware of the now widely discussed fact that the cable was originally published by the Guardian, and WikiLeaks simply followed suit.
In general Turnbull seems to have a non-professional's conventionally naïve faith in the protections and value-added that professional journalists claim for their own role as mediators in the publication of secret information and as gatekeepers between citizens and their governments.

For that reason, though, it is all the more notable that such a conservative spokesperson should be as clear-sighted as Turnbull is about the Australian government's responsibility to uphold and defend the rule of law, civil liberties, and human rights as those issues have arisen in Julian Assange's own extradition case, in extralegal actions already taken against WikiLeaks, and in rumoured legal actions against both, anywhere in the world.