WikiLeaks’ disclosure of US government documents are among the most important revelations of criminal state behaviour in US history, a former US government whistleblower has said.
Daniel Ellsberg told a court that WikiLeaks’ publication of thousands of documents were of comparable importance to his leaks of the Pentagon Papers that precipitated the end of the Vietnam war.
Ellsberg was speaking on the seventh day of a US extradition hearing against Julian Assange, who faces 17 charges under the Espionage Act and one charge of conspiracy to commit computer intrusion.
The WikiLeaks founder faces up to 175 years in prison after disclosing US government documents about the Guantanamo Bay detention camp, US diplomatic communications and the wars in Afghanistan and Iraq.
Ellsberg told the court: “It was clear to me that these revelations, like the Pentagon Papers, have the capability of informing the public that they had seriously been misled about the nature of war, progress in war, the likelihood of it ending at all.”
Ellsberg himself faced prosecution under the Espionage Act after leaking 43 volumes of a top secret study that showed the US government knew it could not win the Vietnam war and had lied to the public and Congress about its cost and prospects of success.
Assange leaked ‘low-level reports’
Questioned by Mark Summers QC, representing Assange, Ellsberg said the Iraq war and Afghan war logs, unlike the highly classified Pentagon Papers, were “low-level field reports”.
The reports revealed that torture, death squads and assassinations had become so normalised that reports could be trusted to a “secret level” network available to 100,000 people with low-level security clearances.
“It was startling to discover that the assassinations, murder and death squads were no longer regarded as sensitive,” he said.
“They did expose a very serious pattern of actual war crimes. In the Afghan case, the reports of assassinations and torture and death squads were really describing war crimes.”
Military rules of engagement ‘permit murder’
Ellsberg said there was no question that a US military video, published by WikiLeaks as “Collateral murder”, showed war crimes.
“We were watching someone pursue with his machine gun an unarmed man, wounded, calling for safety and deliberately shooting him down when there were troops in the vicinity capable of capturing that person,” he said.
Ellsberg said that had the government said this was aberrant behaviour which led to the punishment of the people involved, that would have been reassuring.
“What we were told in the press was there had been no punishment because the rules of engagement had not been violated,” he said. “To say that is to say that the rules of engagement permitted murder.”
Assange could not get ‘remotely fair trial’
The court heard that during Ellsberg’s trial for leaking the Pentagon Papers in 1971, the judge had refused to allow him to explain his motives for leaking the papers.
Ellsberg said that in every Espionage Act case since then, including two before president Obama and nine after president Obama, the motive had been judged as irrelevant.
He said the law was “absolutely inappropriate for use against whistleblowing” where the purpose was to release information for the good of the public.
“I did not get a fair trial,” said Ellsberg. “No one since me has had a fair trial under those circumstances. Julian Assange could not get a remotely fair trial.”
James Lewis QC, for the government, asked Ellsberg if he was aware that Assange was not being prosecuted for publishing the “Collateral murder” video or the rules of engagement.
He told Ellsberg that Assange was only being prosecuted for publishing a relatively small number of unredacted documents where sources or informants were put in danger.
Ellsberg said that appeared misleading. “As I read the indictment, he is charged with publishing that limited number of documents, but there are also charges of holding and retaining other documents,” he said.
Lewis said Assange was being prosecuted for all the documents he conspired to receive from Chelsea Manning.
But he was only charged with three counts of publishing unredacted documents on the internet containing names of people who could be put at grave danger.
“That is what the government’s case is and was said in open court,” said Lewis.
Good Ellsberg/Bad Assange theory
Lewis quoted an article by lawyer Floyd Abrams, who represented the New York Times in a civil case brought by the US government over the Pentagon Papers, arguing that WikiLeaks was not comparable with the Pentagon Papers.
Ellsberg said Abrams was a respected lawyer, but he was “mistaken”. Abrams’ position was widely held by people who want to criticise whistleblowers such as Edward Snowden, Chelsea Manning and Julian Assange, he said.
“I do not agree with the ‘good Ellsberg/bad Assange’ theory,” he added. “Except for the computer aspects which did not exist then, I see no difference between the charges against Assange and the charges against me.”
Ellsberg told the court that Assange withheld 15,000 files from the first release of the Afghan papers and also went through a very heavy process of redactions.
“He requested help from the State Department and the Defense Department on redacting names, and they refused to redact a single one,” he said.
“All of those names could have been kept from publication had the State Department and the Defense Department simply responded to the request of the newspapers and of Julian. I have no doubt that Julian would have removed names.”
Ellsberg said he could only infer that the government departments chose to preserve their capability for charging Assange with endangering lives, rather than taking steps to protect them.
“Then, years later, they have not been able to identify a single person at risk of death, incarceration or physical harm,” he said. “Either the risks were overrated, or they did not care.”
Assange accused of endangering lives
Lewis quoted at length a witness statement from US prosecutor Gordon Kromberg which said that that many individuals outed by Assange were placed at grave risk and suffered harm.
WikiLeaks published the names of Afghans and Iraqis who had provided information to US forces, and the diplomatic cables included names of people around the world who had provided information to the US government, at great risk to their own safety.
The US attempted to identify and notify people who had been put at risk by the leaked documents, but some people at risk subsequently disappeared – although the US cannot prove their disappearance was the result of WikiLeaks.
Ellsberg said he had read the evidence and found the US government response cynical. “Am I right that not one person who was subject to threats or interrogation by these brutal and repressive regimes actually suffered physical harm?” he said. “Were any of the threats carried out? Even one? Isn’t the answer no?”
Lewis said Assange had given a recorded interview at the Frontline Club for journalists in 2010, in which he said it was regrettable that sources disclosed by WikiLeaks may face some threat. Assange said in the interview: “We are not obligated to protect other people’s sources, military sources or spy organisations except from unjust retribution.”
Also, said Lewis, Assange was informed by the State Department in 2010 that publication of cables would put countless lives at risk.
Ellsberg said he presumed that Assange was not being charged with comments he had made to the press but with his actions, which were “antithetical” to the idea that he purposefully revealed names.
“He took important steps to redact them and requested help from the government,” said Ellsberg. “Had I been reading now that hundreds of these threats had been carried out, to the harm of these people, the situation would be entirely different and my attitude would be entirely different.”
He said harm such as momentary anxiety or having to leave the country must be put in the context of Assange exposing actions that had led to the displacement of 37 million refugees and more than a million deaths in wars initiated by the US.
“It seems to me the government is extremely cynical in pretending concern for these people when there is absolute contempt for the lives of Middle Easterners in general that has been demonstrated over the past 19 years,” he said.
Ellsberg said it was not obvious that a small fraction of people murdered by both sides had been murdered because of WikiLeaks’ disclosures.
“If there were evidence, if the Taliban or others claimed they had disappeared because of WikiLeaks, my answer would be yes, I would regard that as a harmful consequence,” he said, adding that he was not aware of a single incidence of that.
Read more about Julian Assange’s September extradition hearing at the Old Bailey
- Lawyers for Julian Assange say the US has introduced an 11th hour indictment against the WikiLeaks founder that provides additional grounds for his extradition.
- On the second day of his extradition hearing at the Old Bailey, judge informs the WikiLeaks founder he could be removed and potentially banned from court for interrupting witnesses.
- US journalism historian and investigative journalist Mark Feldstein tells a UK court that use of the Espionage Act against Assange will have wide implications for the press.
- Trevor Timm, co-founder of the Freedom of the Press Foundation, tells a court that if the US prosecutes Julian Assange, every reporter who receives a secret document will be criminalised.
- WikiLeaks founder Julian Assange will be held under special administrative measures if extradited to the US, said Eric Lewis, a US legal expert, effectively placing him in solitary confinement.
- MEPs and NGOs say they have been denied access to observe extradition proceedings against WikiLeaks founder in Central Criminal Court.
- WikiLeaks founder Julian Assange held back 15,000 documents from publication at the request of the US government, a court heard today.
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