Cutting through the bullshit.

Sunday, 12 December 2010

Informed consent

Yesterday I received invitations to sign two online petitions supporting Julian Assange.

One, from the Australian group, GetUp!, addresses Obama and Attorney General Eric Holder and aims to publish the petition in a full page advert in the NY Times with 75,000 signatories.  Quoting Thomas Jefferson, ‘information is the currency of democracy’, signatories appeal for due process,

If Wikileaks or their staff have broken international or national laws, let that case be heard in a just and fair court of law.

The other, from, with well over half a million signatures so far, calls on some unspecified ‘you’

to respect democratic principles and laws of freedom of expression and freedom of the press. If WikiLeaks and the journalists it works with have violated any laws they should be pursued in the courts with due process.

I beg to differ.  Much as I support the work Wikileaks and Assange have been doing, due process is not the issue.  If, indeed, they have broken any laws, I applaud their civil disobedience and call for the law’s repeal.

As I understand it, if the US indicts Assange, it is likely to be under the terms of the Espionage Act (1917), which casts quite a wide net, drawing in anyone who 'copies, takes, makes, or...receives or obtains...any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing or note of anything connected with the national defence'.  Furthermore, under s. 5, 'Whoever harbours or conceals any person who he knows, or has reasonable grounds to believe or suspect, has committed, or is about to commit, an offence under this title' is subject to lesser penalties.  The principal issues are probably whether Assange had 'intent or reason to believe that the to be used to the injury of the United States, or to the advantage of any foreign nation' and whether the leaked information was ‘connected with the national defence’.  I think it is likely that Assange can mount a persuasive defence on the grounds that his intent was not to injure the US or advantage a foreign nation, but rather to inform the public or the like.  But I’m not optimistic that a judge or a jury of his peers would find such a defence convincing. 

As Jefferson and others have observed, an uninformed electorate cannot exercise even the parody we call ‘democracy’ meaningfully.  Some of Assange’s supporters seem tolerant of the state’s need to keep secrets from other states and even from its real adversary — the people it rules.  There is a tension between their need for secrecy and our need for full information, at least if they intend to maintain the pretence that they rule over us with our informed consent. 

In a system purporting to represent the governed, there is, I think, an implied right to the information the government bases its decisions on, made explicit in the right to freedom of expression.  It’s frightening that the governed are prepared to countenance such transparent infringements of their most treasured and fundamental rights as the Espionage Act and the even more draconian 1918 amendment, known as the Sedition Act, which makes it a crime to

wilfully cause... or incite... insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct... the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall wilfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag... or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government... or the Constitution... or the military or naval forces... or the flag... of the United States into contempt, scorn, contumely, or disrepute...

Now that Assange is at the mercy of The Criminal Justice System, he is certainly entitled to due process and we need to defend that entitlement.  But to couch the petition in those terms seems to me to miss the point and to elevate compliance with The Law into a matter of principle.  Any law with the capacity to criminalise the work that Wikileaks is doing demonstrates that The Law is not our friend and what we need to support is that work, whether legal or not.

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