Is Julian Assange's Asylum Claim Legit? Point-Counterpoint With Glenn Greenwald

Wikileaks founder Julian Assange has been holed up in the Ecuadorian embassy in London since June 19, having been granted political asylum by Ecuadorian president Rafael Correa. Sweden wants Assange to answer charges of sexual assault. Assange says that his extradition to Sweden would put him in danger of being brought to the United States where he might face prosecution under the espionage act.

It's unusual that Assange was granted asylum, given that the U.S. hasn't attempted to extradite him. Correa faces an upcoming election campaign, and has faced criticism for limiting Ecuadorian press freedoms, and many see the move as a way of pushing back on his domestic critics. The British reject the legitimacy of Assange's claim, and have refused to grant him safe passage out of the country. What has become an international standoff continues.

I see this as a matter of Occam's razor, with Assange doing whatever he can to avoid facing the Swedish charges. The Guardian's Glenn Greenwald disagrees, saying that Assange has a “rational” fear of persecution at the hands of the U.S. government. Greenwald recently appeared on the AlterNet Radio Hour to discuss the situation. Below is a lightly edited transcript of the segment (you can listen to the whole show here).

Joshua Holland: Now, Glenn, I want to make one thing clear. You wrote, “The accusations made against him are serious ones and deserve to be taken seriously. An accorded affair and legal resolution.” I say this upfront because I know you’ve been called a “rape apologist,” and I think that’s very unfair. You’ve made it clear that you’re not prejudging this case in any way.

Glenn Greenwald: Right. I think it was a year and a half ago when the charges first emerged. I wrote at the time, and I’ve been very consistent about this, that it would be incredibly irresponsible for Assange critics to assume that he’s guilty of any crime. It would be equally irresponsible for defenders of his to assume that these allegations are invalid. That’s the reason we have a justice system -- to resolve these kinds of conflicts and disputes in a fair and deliberative manner. Nobody should assume one way or the other anything about what happened here until that happens.

JH: We have an international incident, a standoff if you will. Assange is holed up in the Ecuadorian embassy in London. The Brits say they’re not going to give him safe passage. The Swedes are not going to give him a guarantee that he won’t be extradited to the United States. That’s the situation we’re looking at.

GG: The important thing about that is that’s the initial position of the parties. Typically, when there’s international standoffs and countries are unable to resolve their difference they get together and negotiate. Thus far the Brits and the Swedes have been unwilling to negotiate with the Ecuadorians, which is what made the Ecuadorian government conclude that there was something else going on her. It made them believe that Assange’s fear of political persecution was well-grounded.

Now that they’ve granted asylum there have been a couple of additional meetings. Whether the parties have softened their positions in an attempt to get closer together is something I don’t know, but generally that’s what has happened. So what you’ve laid out is generally a beginning gambit. That’s the reason there’s a standstill.

JH: I think he’s citing the threat of extradition to the US in order to avoid facing these charges. In one sense what he’s asking for from Sweden is a little difficult for them to grant. There has been no extradition request made of the Swedes, and there are no charges here in the United States as far as we know. There were certainly reports that there was a sealed indictment. Wouldn’t the Swedes have to kind of concede that they don’t have a good and independent judiciary in order to grant that request?

GG: I think there are two issues to note. One is that you’re right that there have been no extradition requests that we know of from the United States to Sweden, nor have there been any publicly disclosed indictments. I don’t really place much credence in the report you referenced -- the Stratfor emails that were leaked when Anonymous hacked into them, that there’s a sealed indictment. There may or may not be, but I don’t consider some Stratfor employee to be dispositive. I guess if you’re Assange you look at that and take it seriously, but to me that’s very much up in the air.

What we do know, though, is that there is a very aggressive and active grand jury investigation based in a northern district of Virginia that has been subpoenaing people and investigating whether or not Assange should be indicted under the Espionage Act. We know that prominent people in the government, like Dianne Feinstein, the chairwoman of the Intelligence Committee, and Eric Holder, the attorney general, have to varying degrees made clear that he should be prosecuted, that they want to prosecute him and that they are actively looking to do so. I think it would be very irrational to discount the extremely genuine threat that he faces from prosecution in the United States, especially given that this administration has proven its unprecedented fixation on criminally punishing people who leak information. I think that threat is very real.

You’re right that it would be odd for the Swedish government to give some sort of ironclad guarantee that they will not extradite him to the United States under any circumstances without having seen any extradition request. The odd aspect of this case is that Ecuador, a real country, has now granted political asylum to Assange in order to protect him from political persecution, and there is a need there for Sweden to negotiate if they want to get ahold of him in Sweden. They need to satisfy the Ecuadorians that this is not a ruse to get him to the United States. That makes the situation somewhat odd. Even if you believe that Sweden can’t, or that it would be hard to, issue some kind of hard and fast guarantee now, I think it’s very debatable.

Let’s assume that they couldn’t. Then what you do is sit down with Assange’s lawyers and the Ecuadorian government representatives and you say you can’t give him a guarantee, but you can make a public statement saying that we think that any attempt to prosecute Assange for Wikileaks’ disclosures would be a political crime. A political crime is not something under our extradition treaty that we can extradite for. So you take this position in advance that you consider this a political crime, but you still reserve the right to analyze the extradition request if and when it comes in.

Now will that be enough to assuage the Ecuadorians to withdraw their asylum or to Assange to go to Sweden? I don’t know, but I certainly think it’s worth the negotiation effort, and the fact that it hasn’t happened yet is why there is a lot of suspicion.

JH: There were a number of stories a few months back about the grand jury. They were also accompanied by various legal scholars expressing the opinion that it would be very difficult to charge Assange, given that the New York Times worked with him in publishing the cable leaks. How do you charge Assange without at least exposing the New York Times to the same charge, and if you do that you’d have a very tough First Amendment hurdle to overcome. 

I’m not convinced the United States is actively trying to prosecute him because it’s a very tricky case to prosecute, and Assange is not the whistleblower or leaker. If anything he’s a publisher; he’s basically a journalist. Obviously Bradley Manning is accused of leaking documents, leaking classified information. It’s different to be the leaker and the acceptor of those leaks, isn’t it?

GG: Sure. I think you’re making an argument from a very legalist perspective, and it’s one that I wholeheartedly agree with. It would be an incredibly violent breech of the First Amendement guarantee of freedom of the press for Assange to be prosecuted for doing what media outlets do all the time, which is receive classified information from government sources, and then publish it in the public interest. As you pointed out, the New York Times published many of these same documents. They’ve not only done that, but they’ve published far more secrets than Julian Assange has ever dreamed of publishing, including top-secret information. The New York Times has published all kinds of top-secret designations, whereas Wikileaks never has. None of the documents leaked from the Iraq War and Afghanistan war logs or the diplomatic cables were top-secret. They were either classified or confidential, a much lower designation of secrecy.

From a strictly legal perspective you’re right. Nonetheless if you look at what the United States government has done over the past 10 years, the fact that something is legally dubious or difficult seems to be no bar from them doing it. This is the same government that’s assassinating its own citizens without due process of any kind, putting people in cages in Guantanamo without a whiff of due process. The prior administration got away with declaring torture as something other than torture. We see the constant manipulation of law for the benefit of the United States government. When you add on to that the very deferential posture of the federal courts when it comes to claims about national security -- where all kinds of Muslims have been prosecuted for what looks to all kinds of scholars to be nothing other than First Amendment activity, like advocating for groups and putting YouTube clips on the Internet -- I think it’s a lot easier to say in some abstract legal sense that it would be a difficult prosecution, but that’s far from the same thing as saying that it won’t happen and that it won’t be successful.

The other thing I would add is that the Justice Department doesn’t convene grand juries for fun. They do it only when they’re serious about prosecuting. They didn’t convene a grand jury during the Wall Street financial crisis because they weren’t serious about prosecuting. They didn’t convene one to investigate Bush's torture crimes or eavesdropping crimes because they weren’t serious about prosecuting. They’ve convened a grand jury, they’ve had testimony, they’ve filed motions, and have been very active in this process leading to the very rational conclusion that they are serious. Whether they will go through with it or not nobody knows. It would be incredibly foolish for someone in Julian Assange’s position to blithely assume that it won’t happen, or that if it did happen it would succeed given the success of the United States in its court system over the last decade.

JH: You and I are in absolute agreement on the excesses in the war on terror. With everything that you just said, one thing that I think is a pretty critical difference is that we’re talking about brown, Muslim people accused of terrorism, whether rightly or wrongly. I think often wrongly. Assange is an international pop star. He’s a cult hero of sorts.

I would think that if I were the US government, having seen the damage done from the cable leaks -- damage that has already been done -- I would not go up against this guy in the court of public opinion thinking that I wouldn’t get my butt kicked. I would much prefer to see him charged with discrediting sex crimes in Sweden than making him a martyr to the US war on terror. I think there's a difference in the way that we’ve treated accused terrorists and others, especially blond, white superstar guys.

GG: That’s a fair point, except I’d say two things about it. One is the way in which civil liberties abuses and tyrannical power grabs always work is the same way everywhere. They begin with a very limited, marginalized group, but they never remain with that marginalized group. Once the society accepts the assertion of power and the abuses of power against that marginalized group because they are marginalized those powers become legitimized and then spread beyond their original application. That has happened in every single instance. We already see the abuses of the war on terror spreading to domestic dissent, the entrapment that has been used to put Muslims in prison. It’s spreading to people in the Occupy movement. The Patriot Act, which was justified in the name of the war on terror has been used overwhelmingly in cases not having anything to do with the war on terrorism. I think that what you see is this proliferation beyond its original application.

The other thing that I think is really important to note is because of the work I do I’ve gotten to know Daniel Ellsberg pretty well, who has been sort of my supreme political hero. One of the things the Nixon administration did in the Ellsberg case was it broke into a psychiatrist’s office to get all sorts of incriminating psycho-sexual information about him to leak it and destroy his credibility. I never quite understood why the Nixon administration thought that would be helpful. To me it was a non-sequitor. Ellsberg was leaking the Pentagon Papers, which showed that the US government systematically lied to the people about the Vietnam War. Why would Ellsberg’s sexual fantasies or his aberrations that were embarrassing to him personally have anything to do with that? The reason is if you can throw enough dirt on somebody in a sexual or personal or intimate level it makes almost everybody unwilling to defend that person, to want to be near them, to want to be associated with them.

As we began our discussion you pointed out my defense of Assange’s legal rights as I perceive them -- his rights against persecution -- have led people to believe that I say that I’m justifying rape or minimizing its importance, even though I’ve done nothing of the kind. But it has a very radioactive effect. While it’s true that two years ago Assange had a very big international following, it’s much less true today -- in fact if you look at popular opinion even in Europe, in Scandinavia, even in the United States -- it’s split at best, if not overtly hostile to him. The ability to prosecute Assange would be much greater than it was a couple years ago.

One last point in agreement with you. I think the reason the United States hasn’t indicted him yet, hasn’t prosecuted him yet, is because they’re happy with this current situation. He’s been incapacitated in house arrest in Britain. If he goes to Sweden and is convicted of those allegations that’ll essentially ruin him forever. Just the cost-benefit analysis will mean that it’s not worth the fight to extradite and prosecute him. I think if he’s acquitted -- if the charges are for whatever reason not coming to fruition -- and he’s free, then I think the United States will have a much different perspective on that.

You have to remember that even if Assange isn’t the leaker, the template he created is a very threatening one. It enables people to leak without any detection of who they are, even by the organization to which their leaking, which is different from the traditional model. It is a stateless organization, meaning it’s immune to the compulsory process governments use to force the disclosure of sources. It’s a threatening model that I think they want to hold up as an example that if you stand up to the United States government and the international security state and secrecy regime -- if you poke the finger in their eyes, you don’t get away with that. I think that’s an important lesson for them to teach. I guess I’m less dismissive of what I perceive to be their desire to punish him and to see him prosecuted.

JH: Getting back to the granular nuts and bolts here: One thing that doesn’t make a whole lot of sense to me is why Sweden is an important portal for his extradition to the United States. He was in the UK under house arrest for quite some time. There was nothing preventing the US from requesting his extradition from the UK at that time. It’s not unprecedented for two countries to seek the extradition of one person on different sets of charges. That becomes a matter for the courts to work out. I understand Sweden may be small, but the UK is a very close ally of the US in the war on terror. Why wouldn’t we have just grabbed him from the UK?

GG: I think that’s a good question. You acknowledge, but then wave away, the notion of a small country. I think that’s incredibly significant. Small countries are much more easily coerced and bribed or bullied than large countries are. You see all kinds of examples where that’s the case. Large countries have bigger populations, more ability to resist, and a stronger belief that they need to. It’s almost impossible for a very small country to just outright defy the wishes of the United States. It’s not impossible. You see Ecuador doing it, but it’s a much easier task for the United States to coerce a country that’s tiny like Sweden than fairly large like the United Kingdom.

The other aspect is that everything that would be done in Britain would be very transparent and public. We saw this with the Swedish extradition over the last year and a half. It’s all done in open court and all the proceedings are public. Sweden has a very unusual judicial system in that it has all kinds of levels of secrecy to their proceedings, especially in the pretrial stage that most Western nations would not even recognize as a justice system, let alone accept. There’s all kinds of condemnations of it, even from the US State Department. I don’t mean to suggest that there’s some tyrannical regime, but it is the case that this secrecy in their judicial system has always led Assange to fear that whatever the United States and Sweden did it would be away from the scrutiny of the public. It would be much easier than in Britain.

Finally, although the British government is very accommodating when it comes to the United States they have a very independent judiciary that has repeatedly ruled against the government and expressed disapproval of the United States in the war on terror. A lot of this would go through that court system. Sweden has a history of having the government just bypass its legislature, bypass the judiciary in order to comply with the requests of the United States -- including in instances where the UN found that it’s lawless. He perceives that the transparency of the more established judiciary, and public opinion, would be much bigger hurdles to overcome if he were in Britain than if he were in Sweden where it could just be out of the public eye.