Sunday, August 19, 2012

Dear Minister (Redacted): Assange and FOI

On Thursday, the Australian Department of Foreign Affairs and Trade published their answer to a Fairfax Freedom of Information two-fold request on Julian Assange. The first part was for briefings to Foreign Minister Bob Carr about Wikileaks, Assange and Bradley Manning. The second was cable traffic (the kind made freely available by Wikileaks) between the embassy in Washington and the department on Wikileaks, Assange and Manning in the months February to April this year. The aim of the FOI was not to release Assange but to embarrass the government by proving Bob Carr a liar. Fairfax's gotcha today was DFAT’s long-held concern Assange would be extradited to the US was “at odds with Carr's repeated dismissal of such a prospect.” More importanly however, DFAT's heavily redacted response gives much insight into Australian concerns about Assange

The response started with a letter addressed to Carr on March 2. The letter was written by the department’s secretary Dennis Richardson who was also ambassador to the US for four years to 2009.  While this was before the period of Assange’s international infamy, Richardson presumably had some sage advice on how to deal with the Assange dilemma. “Dear Minister” it began followed by five pages all marked “redacted”.  Some tantalising notes were left on the last page. Consider, Stephenson wrote to Carr in note s22.1(a)(ii), on any given day, the department is dealing with around 1500 consular cases. The appendix s22.1(a)(ii) also deals with workload and said consular work was increasingly complex due to the travel behaviour of Australians and the number of cases raised to the media which require ministerial involvement. We don’t know where this was leading as the next page was redacted.

There followed a suggested response to possible questions on Assange lawyer Jennifer Robinson whose name was included on a Heathrow “inhibited travel” list.  This was to confirm events but to deny any Australian involvement or British restrictions on her travel. The problem was caused by “management of Ms Robinson’s check-in” and “inadvertent comments by airport security and other staff”. They said check-in staff eventually cleared Robinson to travel and she boarded the flight as planned. The talking point ended “I hope this will put all the conspiracy theories to rest.”

Those conspiracy theories had to wait for the next page which was redacted. The next point was a problem of Carr's own making. A month prior to becoming Foreign Minister, Carr used his own blog to decry the role of judges as prosecutors in the Swedish legal system as “an outrage by Australian standards”. The possible question was shouldn’t the Government do more to stop him from being extradited there. The answer was whatever his opinions as a blogger, as a representative of the Australian Government, he had to express “confidence in the integrity of judicial processes of Sweden”. 

The matter of a US indictment should only be discussed “if raised”. The response should be that while the US is investigating Wikileaks there was no announcement of any action against Assange and the US has not advised Australia of any such action though “the details of our conversations are confidential”.  Australia refuses to comment on the leaked emails from Stratfor which spoke of the sealed indictment.  Two other issues to discuss only "if raised" were the “temporary surrender” extradition mechanism and the likelihood of Australia extraditing him to the US if he returned here.

The briefing said Assange was welcome home “once international orders preventing his travel have been lifted”. Any extradition from here was a matter for the Attorney-General though Assange could fight such an order in Australian courts. There was also an ambiguous answer to avoid confirming Assange’s eligibility to run as an Australian Senator as “suggested on Twitter”. It was Wikileaks’ own suggestion and while the response was to be handballed to the A-G, Senator Carr’s own opinion was that “Assange has not been charged with an offence in Sweden or elsewhere”.

There follows background on the legal proceedings. British police issued Assange with a European Arrest Warrant in December 2010 which a court found valid two months later. Assange appealed to the High Court which upheld the decision in November 2011. However they allowed an appeal to the Supreme Court on the legal matter of whether a prosecutor was a “judicial authority” who could issue an EAW under UK law. After hearings in February, the Supreme Court has reserved its opinion. If the appeal is successful, Assange is free to walk. If it is unsuccessful, Assange still has one last legal avenue open, the European Court of Human Rights.

The Department said they had spoken to Assange twice by phone, twice in person, facilitated a visit by his mother and had attended all legal proceedings. If he ends up in Sweden, he would probably be kept in detention while any trial was pending. As for the US, there a Grand Jury was deliberating the Wikileaks cablegate affair in secret. Wikileaks was accused of providing a rainbow table to crack passwords in Manning’s pre-trial. After Wikileaks released the Stratfor email, Australia sought clarification on whether there was a sealed indictment for Assange. The request was denied due to the secrecy arrangements of the Grand Jury. 

The secrecy of DFAT files on Assange continued with 10 more redacted pages. There followed a cable from Washington marked “routine, information only”. The cable provided a summary of the Manning case which described in great detail the links to Assange and Wikileaks. These included file-sharing, contact details and on-line chat. Implicit in the cable was that prosecutors were building a case against Assange. 

This possibility was made explicit in another similarly undated “routine” cable which said the US has been investigating Assange for more than 12 months. An unconfirmed grand jury was empanelled in Virginia in 2010 but this has been a Kafkaesque black hole for information with no one involved allowed to talk about it and the US refusing to even confirm its existence. The cable also quotes commentary which suggests a successful US prosecution of Assange would be “challenging and complicated”. Possible charges could include accessing computers without authorisation, theft of US property, disclosing prohibited material or criminal conspiracy to “defraud the US”. Any prosecution would not tackle First Amendment rights even though as a non-American he may not be covered. 

A few more redacted pages occurred before more routine cables.They quoted a Wikileaks press release denouncing UNESCO for banning Wikileaks personnel from a conference about Wikileaks. They pointed out the conference was organised by “Washington insiders, cold war ideological allies (such as Freedom House and the disgraced IAPA) and U.S. mainstream media groups.” When media asked the US State Department, spokeswoman Victoria Nuland said given US’s state of “suspended animation” in UNESCO, she was “not sure we’re going to have much to say about it."

Another cable gave an update on the Manning arraignment. With the complexity of the case of 40,000 documents containing 400,000 pages, it would mean an August start date. Manning would be detained for 800 days by the time it starts. It reported a voice from the gallery shouting “Judge, isn’t a soldier required to report a war crime?” It also reported the president of the Center for Constitutional Rights Michael Ratner’s comment that prosecutors were “bludgeoning Manning to accept a plea where he would then implicate Assange”. 

Then it was back to the leaked Stratfor emails. On 27 February Wikileaks began publishing the Global Intelligence Files based on five million emails from a company called Stratfor which provides subscription-based analysis of geo-political issues. It was a private sector Cablegate which Wikileaks publicised with newspaper partners. The cable did not mention the “sealed indictment” but did say Australia was mentioned twice. The first, an East Asia Monitor Guidance, talked about Australia’s submarine crisis and the second from a “well connected former Senator” discussed Chinese mining interests. 

A cable followed that explicitly mentioned the Stratfor “sealed indictment” email. The email’s author Fred Burton was an ex-deputy chief of US counter-terrorism with “close ties” to the intelligence and government network. The email was not official confirmation and the cable author said Burton might be mistaken due to a draft indictment “commonly used by prosecutors to ‘game out’ possible charges.” Either way the silence of the Grand Jury made everything just speculation.

There was a long explanation why Grand Juries operate in secrecy. It was imported from English law, it protected witnesses, it would lessen the risk someone indicted would flee, and lastly it would prevent someone tried but exonerated from “being held up to public ridicule”. While Assange might have coped with the indignity, it is also designed to prevent “satellite litigation in advance of judgement”. 

More cables discussed new allegations in the Manning case. Firstly, that he provided material assistance to the enemy, Al Qaeda in the Arabian Peninsula (AQAP). It discussed in detail the legal arguments and the media commentary with many saying the case was weak and questioned the benefits to AQAP.  Another cable followed that talked about the “rainbow table” allegation. 

Another one discussed the UN Special Rapporteur on Torture’s report to the UN on Manning (Manning data starts page 74). Juan Mendez said Manning’s detention was punitive but he did not accept monitored access to the prisoner. It had a letter from the Department of Defense to Mendez saying they were satisfied with the detention and had placed him on death watch. 

The last significant cable was about Wikileaks’ request for the US to publicise details of Manning’s court martial. The Center for Constitutional Rights' Michael Ratner said the public had First Amendment and common law rights to access to criminal trials. Ratner quoted Circuit Judge Damon Keith’s dictum “democracies die behind closed doors”. He noted Mendez’s objections and said the public had a “compelling interest” in the Manning case. Particularly Assange had a “unique and obvious interest” and “it appears” federal prosecutors had a sealed indictment against him. 

The last cable in the document about Jennifer Robinson’s flight difficulty was completely redacted. By my counting 39 pages out of 125 were redacted showing Assange has been a major topic of discussion and concern for DFAT. Yet there is much revealing about what is left in. Australia almost certainly knows about the sealed indictment but is content to hide behind legal niceties from confirming it.  This was certainly the take of today’s Fairfax report on the material. The Department as ever played a straight bat. Fairfax concluded with DFAT’s non-response. “A spokesperson for Senator Carr said yesterday Assange's circumstances remained a matter for the UK, Ecuador and Sweden, with Australia's role limited to that of a consular observer.” Carr hopes the convenience of consular observation will keep Australia off the hook as this high-stakes game heads towards a spectacular climax.


pk said...

Great read.

glenn mead said...

Very interesting conclusions. Maybe the redacted pages detail how to get from Knightsbridge to the airport avoiding police.

Anonymous said...

good read wooly;
so is there a grand jury indictment waiting to served on a captured Assange ?
exist or not, is no one allowed to even talk about it ?


Derek Barry said...

There is strong prima facie evidence such an indictment exists. But impossible to confirm as long as US media cannot report on it. One of the many reasons we need more tools like Wikileaks to allow whistle blowers to flourish without punishment. What journalists don't like is they are not the ones deciding on the bona fides of those whistling.