Julian Assange and the journalism defence

Updated February 03, 2011 12:33:00

On Monday and Tuesday of next week, a full hearing in the Woolwich Crown Court in London will determine whether or not Julian Assange should be extradited to Sweden to answer questions about the conduct of his sex life there last year.

I suspect the Swedes will lose their case. Assange believes - with what justification I have no idea - that if they win, they will hand him over in turn to the tender mercies of the United States.

What's certain is that the US departments of Defense and Justice in Washington are, to quote the DoD's spokesman Geoff Morrell, "hard at work building a case" against Assange. If they succeed, and whether the charges that eventuate relate to the 1917 Espionage Act, as most analysts seem to think likely, or to some other offence - stealing government property, for example - you can bet that the penalties to which he would be liable will be vastly more onerous than he's likely to incur if he's charged and found guilty of technical rape in Sweden.

The problem for the US authorities, of course, is that if they're going to prosecute Assange, they need to distinguish between what he and WikiLeaks have done on the one hand, and on the other, the actions of a swag of highly reputable newspapers around the world, including The New York Times.

In its decision back in 1971 in New York Times Co v United States, the US Supreme Court made it clear that the Times, and by extension any other newspaper, could not be restrained from publishing the secret Pentagon Papers on the basis of the Espionage Act. And no-one in the Obama administration has even hinted that it's contemplating legal action of any sort against The Times over its publication of the WikiLeaks cables.

The First Amendment of the US Constitution, of course, protects freedom of speech and freedom of the press. But that protection wouldn't extend to Private Bradley Manning, should it be proved that he was the source of the vast trove of cables that WikiLeaks has shared with The Guardian, The New York Times and its other partners in recent months. The protection that the US Constitution affords to journalists who publish leaked documents doesn't necessarily extend to their sources.

And that's why what The New York Times's editor, Bill Keller, has recently written about his newspaper's relationship with Julian Assange is potentially so damaging to Assange:


That agenda, Keller hinted, included an explicit anti-Americanism. Discussing the notorious Baghdad helicopter video, Keller points out that WikiLeaks "released a version that didn't call attention to an Iraqi who was toting a rocket-propelled grenade and packaged the manipulated version under the tendentious rubric 'Collateral Murder'."

Keller attributes WikiLeaks's actions to "its zeal to make the video a work of anti-war propaganda", and elsewhere describes Assange as "openly contemptuous of the American government", and WikiLeaks as "suffused with ... glib antipathy toward the United States."

But Assange is just a source. And, writes Keller, "...the relationship with sources is straightforward: you don't necessarily endorse their agenda, echo their rhetoric, take anything they say at face value, applaud their methods or, most important, allow them to shape or censor your journalism."

Julian Assange and WikiLeaks have acquired and then disseminated the single largest trove of confidential government documents in the history of... um... let's call it 'unauthorised disclosure' - but, Keller says, he "would hesitate to describe what Wikileaks does as journalism".

Interestingly, Keller's opposite number across the pond, The (London) Guardian's Editor-in-Chief, Alan Rusbridger, has recently been writing about Julian Assange too - and for the same reason as Keller: The Guardian, like The New York Times, is busily promoting a book about Assange and WikiLeaks.

But Rusbridger takes a notably different line from Keller. First, he pays tribute to WikiLeaks's technical achievement. Because it is stateless, a cyberspace entity designed to be resistant to censorship or sabotage, Rusbridger writes that even before it became a worldwide household name, "lawyers who were paid exorbitant sums to protect the reputations of wealthy clients and corporations admitted - in tones tinged with both frustration and admiration - that WikiLeaks was the one publisher in the world they couldn't gag."

Since the publication of the Afghan and Iraq war logs, and the US diplomatic cables, says Rusbridger, he's been astonished to read of some mainstream American figures calling for Assange's assassination. And, he adds, "it was surprising to see the widespread reluctance among American journalists to support the general ideal and work of WikiLeaks. For some it simply boiled down to a reluctance to admit that Assange was a journalist."

That reluctance, clearly, is shared by Rusbridger's partner across the Atlantic, the editor of The New York Times.

Well, why does it matter whether Assange is a journalist or not? It certainly might matter to Assange, because under the US Espionage Act it's an offence for anyone to disclose information pertaining to America's national security and which he "has reason to believe could be used to the injury of the United States".

A journalist, the courts by and large accept, has an occupational motive for disclosing information that comes his or her way, more or less regardless of consequences. But if Assange isn't a journalist, what is his motive? If it could be shown that his specific purpose, in passing the cables to newspapers around the globe, or in posting them on WikiLeaks's own websites, was to injure the United States, he might be caught by the act.

I'm sure Bill Keller is well aware of this. That's why it strikes me as disingenuous, after he's made clear that in his view Assange is a non-journalist with questionable motives, to then add:


Chilling, one suspects, not so much because of what it might mean for Julian Assange as for how it might impact on The New York Times's future operations.

Mind you, Keller's hostility to Julian Assange is not surprising. Assange, arguably, began the feud. His tendency to turn venomously against those with whom he's been closely allied - inside WikiLeaks as well as outside it - is well documented. He chose to take on The New York Times - and later, The Guardian too - and to some extent he's reaping what he sowed.

But there's a deeper conflict here. It reminds me, if this is not too high-flown a parallel, of the fundamental schism between Martin Luther and the Church of Rome.

The 16th-century Church claimed that only ordained priests could safely and responsibly understand and interpret the word of God. To translate the Bible from Latin into the common tongues of Europe was therefore to commit sacrilege. But for Luther, Wycliff, Calvin and their ilk, the scripture must be put in the hands of all believers, for them to interpret as their conscience dictated.

Whatever their differences, Bill Keller and Alan Rusbridger share a view about the journalistic job their papers had to do before they could publish the raw material brought to them by WikiLeaks:


Rusbridger: "to ... build a search engine that could make sense of the data, ... to bring in foreign correspondents and foreign affairs analysts with detailed knowledge ... to introduce a redaction process so that nothing we published could imperil any vulnerable sources or compromise active special operations."

WikiLeaks's raw material, the implication is, was not only too voluminous and too shapeless, but also too dangerous, to be foisted on the public. It needed first to be interpreted by trained journalists, the priesthood of communications in the analogue age.

By contrast, Julian Assange is a child of the digital age and a journalistic anarchist. His instinct is simply to publish. Let readers do their own interpretation. Who are journalists to decide on the public's behalf what it should or should not be allowed to read?

I've spent my entire career as part of the journalistic priesthood. It's not surprising that I share the instincts of the Kellers and Rusbridgers. I'm as suspicious as Keller is of some of Assange's motives. I don't share his conspiratorial world view. And I do believe that the work of The Times, The Guardian, Der Spiegel and the rest vastly added to the value of the WikiLeaks material.

But I'm very conscious - as I'm sure they are too - that many natives of the digital world are becoming increasingly impatient of the 'gatekeeper' role claimed by the mainstream media. Indeed, Alan Rusbridger has turned The Guardian into a global brand on the internet precisely by accepting more readily than most of his colleagues the new realities of interactive journalism.

Still, he would no doubt share the view that traditional journalism performs an essential function - a view that many of The Guardian's digital readership may not share. It's a tension that's not going away soon. On its resolution, arguably, depends the very survival of journalism as a separate, well-paid 'profession'.

Journalists like to think of themselves as people who tell truth to power, who keep the bastards honest, who are the natural enemies of the controlling state. But as Bill Keller's account of his newspaper's dealings with WikiLeaks makes clear, in a contest between democratically-elected governments, however imperfect, and cyber-anarchists such as Julian Assange, the mainstream media has a very hard time deciding which side it's on.

Jonathan Holmes is the presenter of ABC TV's Media Watch.

Topics: journalism, world-politics, human-interest, people, information-and-communication, law-crime-and-justice, international-law, united-states, australia, sweden, united-kingdom

First posted February 03, 2011 12:30:00