There is a parallel between the cases of the Nadesalingam family and Julian Assange: they both demonstrate a truth about the limits of justice.
Assange remains in Belmarsh Prison, where he has been for more than three years now. With the decision of the British Home Secretary, Priti Patel, to order his extradition to the United States, it is inevitable that he will continue to occupy a cell for many years yet.
Assange’s lawyers have indicated they will appeal this latest setback; that will roll through the English courts and most likely the European Court of Human Rights. If they fail, Assange faces, finally, the extradition the US has been seeking since 2010, and a trial on espionage charges. If convicted, he could get life.
The legal issues circling Assange’s situation are complicated and controversial: was WikiLeaks’ release of nearly half a million classified US military documents an act of journalism or espionage? Was Assange’s decision to take asylum in Ecuador’s London embassy for seven years the act of a freedom fighter or a man avoiding rape charges in Sweden (which eventually lapsed without ever being tested)? Is the US justice system capable of offering genuine justice or has it been hopelessly politicised as a weapon of vengeance for an administration embarrassed by the leaks?
The current formal status of things is that the courts have ruled it would not be “oppressive, unjust or an abuse of process” to extradite Assange, and Patel has declined to exercise political discretion in his favour. He can appeal her decision, and will probably fail again in the UK courts although there is a chance that the European court may see things differently.
The political pressure is now mainly on the new Australian government. Prime Minister Anthony Albanese said in December 2021 that he did “not see what purpose is served by the ongoing pursuit of Mr Assange” and that “enough is enough”. He is being pushed to intervene assertively in London and Washington, to advocate the human rights of Assange as an Australian citizen.
Albanese has not directly commented, but a senior minister, Tony Burke, was sent out to say this: “We’re not going to conduct diplomacy by megaphone. This case has gone on for far too long. We said that in opposition, we’ve repeated that in government. The issue needs to be brought to a close.”
Translation: the Labor government isn’t going to spend diplomatic capital on Assange, but will have a quiet crack at the Americans and is setting up to take the credit if the Biden administration relents.
That’s the politics, expedient as ever, but the rhetoric points to a truth: there comes a point at which enough is indeed enough.
Step back from the questions of legal principle and process in the Assange case, and what emerges is what Shakespeare would have called a lot of sound and fury, signifying nothing. We are now a decade-plus and three presidents removed from the subject matter of the WikiLeaks files. While there might once have been a genuine debate about whether what Assange did was journalism, that ship has long sailed away with the last traces of traditional media dominance of public discourse. Chelsea Manning, the main source of the classified leaks, is free, remitted by President Obama. The world has moved on.
We are well past the point where it must be asked what is the utility of continuing to go after Assange? What would his prosecution achieve? If he is guilty of anything, he has already done 10 years in largely solitary confinement; the fact that that has been mainly because of his own choices doesn’t change it.
I claim a parallel with the Nadesalingams because I see the same problem there: what happens when legal process is stretched past the point of exhaustion. That family never committed a crime, but their liberty was withheld for more than four years. The Coalition government always maintained (and, in opposition, still does) that they were in Australia illegally, their asylum claims having been denied, and that our tough migration laws dictated their deportation back to Sri Lanka with their Australian-born children.
The political truth is that the family were hostages, but the government did have the law on its side (because the law had been designed that way). If the Albanese government had chosen to carry on down the same path, more litigation would have ensued. Ultimately, the family’s legal odds were similar to Assange’s: slim.
The new government ended the family’s torture, as it should, for the simple reason that enough was enough. That is not a legal maxim, but the law does recognise that there are limits to its own social utility. It’s why, for example, criminal defendants are sometimes excused from retrial after a successful appeal even though their alleged guilt has never been properly tested.
So it should be with Assange. Nothing useful has been achieved in his case for a long time; nothing will be now. He has suffered enough, if he ever deserved punishment. No society will benefit from pursuing him more.
There’s a handy rule of thumb for when it’s time to stop: when barely anyone can remember, and nobody really cares, what the argument was about in the first place.
Australian governments have our heads so far up Uncle Sam’s fundaments that we can see breakfast before he does.
I’m still wiping the tears from my eyes – K, that’s one of the most succinct and beautifully worded sentences I have seen in a long time!
Michael, I agree with your conclusion that enough is enough. But it is still instructive to consider Assange’s possible guilt.
The angst about whether what Assange did was ‘espionage’ is pure nonsense. Any dictionary definition of ‘espionage’ makes is perfectly clear that the spy must be working for a nation or a corporation, stealing secrets for the benefit of his or her employer. It is perfectly clear, I suggest that what Assange is accused if doing cannot be contorted to fit any such definition.
What Assange did was reveal objective facts that massively embarrassed military and diplomatic big wigs. Why? Because in the case of the military, those facts revealed clearly violent criminal conduct. In the case of diplomacy, those facts revealed a great deal of hubris, incompetence and mendacity; ie a service not fit to guard ‘national security’. And as you point out, that is why he is being persecuted, not because he engaged in anything like ‘espionage’. Surely Biden can be convinced by Albo to give up the US’s ridiculous pursuit of Assange, simply on the basis that the person who actually stole the material has been pardoned long ago. In this respect, I agree with Bib Carr in The Guardian today: the politics of seeing Assange in chains being dragged off to be punished by a supposedly great ally, will not play well here. It will be seen as an inexcusable act of betrayal of an Australian by Australia and an act of cowardice and pointless mendacity by the US. Who the hell wins out of that mess?
The sick irony here is the worst thing he may have done is sexual assault in Sweden that could only have been tested, in practice, if the US was not prowling around with its extradition obsession.
Yes, there is no substance whatsoever to the charge of espionage, for the reasons you give. His principles for publication are just drop the lot, although contrary to what John Kehoe says, he did indicate that he would not publish material that put peoples’ lives at risk. He did publish material that led to some people being withdrawn by the US government so that their lives would not be put at risk. The annoyance of the US state that some of its war crimes were exposed and its agents compromised is understandable, especially as it does not allow its troops to be prosecuted by anyone apart from the US Justice department. There have been a few such cases but the commander of the My Lai massacre of civilians was treated even more lightly than Chelsea Manning.
As to the “rape investigation” conducted by a Swedish prosecutor, it was a most curious affair. First, no Australian or UK prosecutor would have considered that it was possible to charge Assange for rape under either Australian or UK law. Only Swedish law could have provided such a chance. Oddly, Assange was to be shifted to Sweden for the purpose only of investigation. The Swedish prosecutor refused under any circumstances to carry out the investigation in the UK, although Assange said he would answer any questions put to him in the UK. Why a “he said/she said” case about what happened in the course of sexual intercourse with initial consent by both parties could be thought capable of prosecution is a mystery to me. It would not be thought likely to support a successful prosecution in either UK or Australian law, even if that were changed to agree with Swedish law. Eventually, the inquiry into the rape (in Swedish law) was dropped. Of course, this is not to argue that Swedish law has got the matter wrong: quite clearly, it would be wrong and amount to rape for a person to proceed from a sex act that month consented to to a different kind of sexual act, where one party to it did not consent to it. Still, you would need evidence other than just an allegation that such a rape occurred. I am unaware of any such evidence in this case and , if that is right, why would an investigation call for imprisonment and forced transfer to Sweden?
Never embarrass Uncle Sam.
Is that any longer even possible?
Any entity that has failed so often, so comprehensively and so egregiously, at home & aborad, is beyond shame.
It’s got to the point where justice is an irrelevance. So many people want a prosecution from the Assange case that it’s now rolling along free of mercy, logic or even law, and anyone in power who tries to stop it will wear the result of the derailment. The medium has become the message.
Agreed,
The optimum opportunity to act on this was prior to Priti Patel announcing her decision – now the UK government cannot flip because it will lose face. Biden’s opponents will use this as a means to prove he is weak on nationalism/patriotism should he drop the charges on Assange.
The only hope is that Albo will convince Biden that backing off from prosecuting Assange won’t damage him politically – certainly it would put him & the US in better standing internationally. It’s time to call in a favour from a US president…to repay the one where Gillard handed an airbase to the US just outside Darwin.
…now the UK government cannot flip because it will lose face.
A government led by Boris Johnson cannot lose face? It loses face every time he speaks.
I’m ‘a-Biden’ my time. Fully confident militarisation of North offers many opportunities.