The prosecution perform mental gymnastics to avoid accusations that they are criminalising journalists, says John Rees

James Lewis QC, the US government’s choice as prosecutor in the Assange extradition hearing, may well be a jolly and generous soul in private.

There is certainly nothing to suggest that this former SAS officer and current Chief Justice of the Falklands Islands, whose home is adorned with a framed front page of the Penguin News, the island’s local paper, from the day that Britain defeated Argentina in the 1982 war, is not kind to animals and warm to his friends and family.

It may well be that it is only in public that he is a bad tempered and a bully.

But that, on the evidence of the first three days of the reopened Assange extradition hearing, he certainly is. So far he has lost patience with every witness, especially those who do not give ground under his overbearing cross-examination, with the defence QC Mark Summers for daring to interrupt him, and with the Judge for having the temerity to suggest that he might need to stick to the time limits set for cross examination.

There is however an easily available explanation for Lewis’ tetchiness: he has been given a fundamentally flawed case to argue.

What became increasingly clear in these last few days is that the prosecution is petrified of the accusation that they are attempting to criminalise journalists and muzzle the press.

So the entire framing of their case is that Assange is only on trial for, firstly, risking harm to the US agents and diplomats that were named in the WikiLeaks disclosures and, secondly, that Assange is a hacker and not a journalist.

The first of these charges is easily dealt with. They relate to leaks back in 2010-11. If harm was going to be caused it would have happened at some point in the last decade. But even the US evidence in this hearing makes no claim that such harm has actually occurred. And as much was admitted in court by the US government in the Chelsea Manning trial. So all this amounts to is a US government fear that it’s agents might be hurt which has turned out to be unfounded.

And in actual fact WikiiLeaks did redact names when it released files. Others released unredacted files. But they aren’t in the dock.

The second accusation, that Assange was simply hacking or assisting Chelsea Manning to hack, and not behaving as a journalist is meant to separate Assange from the mainstream press. This simultaneously isolates him and reassures the mainstream media that the US isn’t after them…as long as they don’t print anymore WikiLeaks-like material in the future. 

But this ruse, despite Lewis’ constant refrain in court that Assange isn’t charged with reporting, is exploded the minute one reads the US indictment itself.

In Count 1, point 3, for instance, Assange is charged with acting ‘To willfully communicate documents relating to the national defense namely, detainee assessment briefs related to detainees who were held at Guantanamo Bay; U.S. State Department cables; Iraq rules of engagement files; and documents containing the names of individuals in Afghanistan, Iraq, and elsewhere around the world, who risked their safety and freedom by providing information to the United States and our allies, which were classified up to the SECRET level-from persons having lawful possession of or access to such documents, to persons not entitled to receive them…’.

So what exactly would be the meaning of ‘to willfully communicate…to persons not entitled to receive them’ mean if not to publish in the press? Remember this is not a charge against Manning for passing information to Assange. It is a charge against Assange for passing on documents ‘to persons not entitled to receive them’. Presumably this is not an objection to Assange telling his family, but to his publishing as a journalist with other journalists and so putting material in the public domain.

Count 1, point 4, is absolutely unambiguous about this. It reads that Assange’s crime is ‘To willfully communicate documents relating to the national defense…to certain individuals and the public-from persons in unauthorized possession of such documents to persons not entitled to receive them….’.

Now if ‘communicating documents’ to ‘the public’ is not journalism it’s very hard to see what is.

In Counts 15, 16, and 17 the very same language recurs. For instance, that ‘Julian Paul Assange…will be first brought to the Eastern District of Virginia, having unauthorized possession of, access to, and control over documents relating to the national defense, willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them’.

No one imagines that the ‘persons not entitled to receive them’ in this formulation is simply a small coterie of Assange’s coworkers. The US government would not be bothered in the slightest if that phrase did not denote the world’s press, and through them a global public audience.

When James Lewis tries to pretend otherwise he is attempting to bamboozle the court. To do so he is flagrantly attempting to disguise the very meaning of the indictment he is labouring to implement.

No wonder he is so irritable.

This article was originally posted on Stop The War.