Mrs. Clinton Goes to Berlin

One day before the defence for WikiLeaks co-founder Julian Assange is scheduled to appear in London's High Court – applying for permission to appeal the court's December 2021 decision to reverse district judge Vanessa Baraitser's January 2021 ruling against his extradition to the United States – former U.S. Secretary of State and 2016 presidential candidate Hillary Clinton was in Berlin for the »Cinema for Peace« Gala 2024.

A press release from earlier this month announced that Clinton is being »honoured for her work defending peace and democracy across the globe, firstly as a politician with decades of dedicated work, and now through her film production company 'Hidden Light', founded together with her daughter Chelsea Clinton.« Outside the Theater, a group of Assange supporters held up a banner which read: »Welcome Hillary to the peace supporters« and »The Best Yet is to Free Assange«. The banner references a phrase that was included in the short online description of the event, »The best is yet to come!«

Just a Fireside Chat

Police told demonstrators outside that Hillary had cancelled and that she would not be attending. Inside, the staff was obliqued about her attendance right until the posted start time of 17:00. Around 17:30, after being introduced by host Jaka Bizilj and showcasing a short film about her life and career thus far, Clinton took the stage at Theater des Westens for a ‘fireside chat’ with American journalist Ann Curry. After Clinton had spent several minutes advocating for the U.S. and E.U. countries to install »greater consequences for Putin« and aid in the supply of ammunition and air support to Ukraine, a series of audience members (at least six) protested her foreign policy stances, mostly focused around the Israeli-Palestinian conflict. The first disruption called her a »war criminal«. A chant was more explicit: »Hillary, Hillary, you can’t hide / You support genocide.«

The protestors were each removed as swiftly as possible, with obedient onlookers often rising preemptively from their seats to allow the security team access to the person speaking out of turn. The host of the »Cinema for Peace« explained that as this is a liberal democracy where we have free speech unlike in Russia where such people would be arrested. Anticipatory obedience was demanded under the guise of reasonability from the other audience members who largely dutifully complied. Hillary herself noted that yelling won't solve anything and that what is needed is discussion. Of note was that there was no room for questions or discussion from the audience.

Clinton is indeed a relevant figure in the extradition case against Julian Assange, but not in the way that most people seem to believe. Therefore it must first be stated that her 2016 presidential campaign and email scandal have -- legally speaking -- absolutely nothing to do with it. None of the charges in the first or superseding indictments even pertain to that time period, let alone the allegations of the involvement of Russian state-sponsored hackers or interference in the election. Yet those stories are usually front-and-center in people's minds when they consider whether or not Assange deserves to be extradited, prosecuted, and imprisoned.

»Drone the Guy«

For more than a decade, Assange has raised concerns about extradition to the United States as a consequence of WikiLeaks' disclosures, particularly those that exposed systemic corruption and war crimes. His concerns and fears were often dismissed, doubted, and mocked as unreasonable paranoia, including by the same U.K. judge who would soon supervise his very-real extradition trial. This was despite strong indications that extradition was not only desired by current and successive U.S. administrations, but that an indictment had been in some stage of preparation since at least 2011. He was granted asylum by the Ecuadorian government in August 2012 on the basis of »current and future risks of persecution and cruel, inhuman and degrading treatment in the United States in response to my publishing activities and my political opinions,« and thereafter lived in their London embassy for nearly seven years.

On April 11th 2019, Assange was forcibly removed and arrested by British police in response to an extradition request from the United States, based on the newly unsealed indictment charging him with »conspiracy to commit computer intrusion.« He is being held in the maximum security Belmarsh prison, which has been nicknamed »Britain's Guantanamo Bay.« Given that WikiLeaks' receipt and release of »800 Guantanamo Bay detainee assessment briefs« is criminalized by the indictment(s), this is but one of many Kafkaesque elements observed during the trial. Not only has Clinton made several public comments about the character of Assange while in office as Madam Secretary from 2009–2013, but in 2010 and 2011 her department was directly affected by the disclosure of more than 250,000 diplomatic cables, dating back to the 1960s. WikiLeaks describes the archive as »the single most significant body of geopolitical material ever published.« Reportedly she inquired during a U.S. State Department meeting during his publications: »Can we just drone the guy?« Clinton disputes remembering making this remark, and Politico reported that the claim was false. More disturbing is that it fits a larger pattern of U.S. government officials making statements to that effect.

Limited Cooperation

In December 2023, Die Zeit editor-in-chief Holger Stark spoke about the ongoing case against Assange at the 37th Chaos Communication Congress in Hamburg, an annual technology conference that has hosted talks with and about WikiLeaks since the early days of its inception. In that presentation, he included a previously unpublished audio clip from a conversation in November 2010 between Der Spiegel (which he was writing for at the time) and then Assistant Secretary of State for Public Affairs Phil Crowley. Der Spiegel had called the State Department for comment, just two days before the worldwide publication of the redacted cable set by WikiLeaks and various media partners, including Der Spiegel, the New York Times, the Guardian, the Spanish El País, and Le Monde in France. Crowley said that if the names of diplomatic interlocutors were published, this would result in »limited cooperation,« e.g. damage to the reputation of the United States and its ability to pursue its foreign policy goals. Crowley resigned from his position in March 2011 after he publicly criticised the Defense Department's treatment of the alleged source Chelsea (at the time 'Bradley') Manning.

As is publicly documented, WikiLeaks and other media partners were willingly engaging with the State Department on the question of potential harm. In a letter to U.S. Ambassador Louis B. Susman on November 28th 2010, Assange wrote: »As you know, WikiLeaks has absolutely no desire to put individual persons at significant risk of harm, nor do we wish to harm the national security of the United States. WikiLeaks have spent significant time and resources redacting the material in our possession to achieve this outcome and sought to cross check our work and that of our traditional media partners with the US government.« In August 2011, Assange and WikiLeaks editor Sarah Harrison called the U.S. State Department via official channels and warned them that the entire unredacted set of cables was, or would soon be, made accessible to anyone online (»not by us«). When the dispatcher was unwilling/unable to connect them with Secretary Clinton or someone else in a position of authority, Harrison replies, »I don't understand why you're not seeing the urgency in this.« At least a portion of this call can be seen towards the beginning of the 2016/2017 film »Risk,« directed by Laura Poitras.

Relying on Misinformation

The who-what-when-where-how of the sourcing and publication of the cables was a major topic of debate during the 2020 trial in London. Most of the key points – such as whether Manning was authorized to access the information she allegedly provided to WikiLeaks (answer: yes), and whether there was any evidence of harm to confidential informants resulting from the disclosure (answer: no) – had already been thoroughly adjudicated during Manning's court-martial in 2011–2012, to the apparent surprise of Judge Baraitser. During the second week, testimony by defence witnesses John Goetz, Daniel Ellsberg, and Nicky Hager was especially relevant regarding the redaction and harm reduction procedures practiced by WikiLeaks and its media partners. During the third week, the precise chronology surrounding the release of the cables, and the role of the Guardian in the accidental disclosure of the unredacted set, was exhaustingly explored. It became clear to many observers that the U.S. prosecution was relying more on old misinformation and public amnesia than new evidence or arguments.

Notably, during testimony by computer forensics expert Patrick Eller, it was put on record that the U.S. prosecution has never definitively proven that Assange engaged in any direct contact with Manning. Manning's alleged 'conspiratorial' communications with WikiLeaks had been through a pseudonymous Jabber account under the name 'Nathaniel Frank,' and according to Eller it has always been merely »assumed« that this was Assange. The prosecution did not make any attempt to contest this challenge to the core of their case.

Finally, during the fourth and final week of the trial, two anonymous witnesses with knowledge of the UC Global spying operations against Assange, had their testimony read into the record. They claimed that the CIA received regular updates about the goings-on in the Ecuadorian Embassy, and that U.S. intelligence was »obsessed« with monitoring his lawyers, their privileged conversations with Assange and their legal correspondence, and countless other confidential documents.

Obsessive Spying

Since 2019, UC Global and its director David Morales have been subject to an ongoing legal case in the Spanish National Court, Audiencia Nacional, regarding their role in the spying operation. In September 2021, Yahoo News published an extensive investigation into this »unprecedented CIA campaign directed against WikiLeaks and its founder,« based on »conversations with more than 30 former U.S. officials – eight of whom described details of the CIA’s proposals to abduct Assange.« In December 2023, federal judge John Koeltl ruled that four Americans – two lawyers and two journalists who had met with Assange in the embassy while he was under this surveillance – should be allowed to pursue a lawsuit against the CIA for violating »their reasonable expectation of privacy in the contents of their electronic devices.«

While one may be inclined to assume that such flagrant violations of both domestic and international law are rare/exceptional, or at least limited to targets suspected of serious crimes, it appears that officials such as Clinton are rather intimately acquainted with how both diplomacy and state surveillance can be abused to cement U.S. political and economic influence, rather than serve criminal justice or national security. A July 2009 cable signed by then Secretary Clinton, published as part of Cablegate in 2010, outlines the establishment of a »new National HUMINT Collection Directive (NHCD) on the United Nations,« encouraging reporting officers in the State Department and other intelligence agencies to compile extensively detailed information on »top officials and their support staffs,« particularly those of security council members and the U.N. Secretary General Ban Ki-moon. Among the list of 'relevant' data to collect: »personalities, biographic and biometric information,« the »current technical specifications, physical layout, and planned upgrades to telecommunications infrastructure and information systems, networks, and technologies used,« and even »details on commercial and private VIP networks used for official communications, to include upgrades, security measures, passwords, personal encryption keys, and types of VPN versions used.«

Violating the Law

A summary report of the cable published by the Guardian suggested that »the level of technical and personal detail demanded about the UN top team's communication systems could be seen as laying the groundwork for surveillance or hacking operations.« Such operations, they argue, would violate the 1946 convention on privileges and immunities as well as the 1961 Vienna convention on diplomatic relations. The Guardian and other media later reported that the directive had in fact originally been written by the intelligence community, specifically a manager at the CIA; upon being passed through the State Department and distributed as a cable, it was automatically tagged with Clinton’s name, as »the CIA and other agencies cannot direct State Department embassy personnel.« While Secretary General Ban Ki-moon largely refrained from publicly criticising the U.S. government in the wake of the scandal, he was vaguely quoted saying, »I do not believe that anybody would be happy when somebody knows that he or she is under watch by somebody.« Fast forward more than a decade, where both Ban and Clinton are being honoured at the same event, as if on equal ground.

Yet less than two weeks ago, U.N. Special Rapporteur on Torture Alice Jill Edwards issued a press release that »urged the Government of the United Kingdom (UK) to halt the possible extradition of Julian Assange.« She argues that it is unclear »whether Mr. Assange’s extradition to the United States would be compatible with the United Kingdom’s international human rights obligations, particularly under article 7 of the International Covenant on Civil and Political Rights, as well as respective articles 3 of the UN Convention against Torture and the European Convention on Human Rights.« »Diplomatic assurances of humane treatment provided by the Government of the United States are not a sufficient guarantee to protect Mr. Assange against such risk,« Edwards said. »They are not legally binding, are limited in their scope, and the person the assurances aim to protect may have no recourse if they are violated.«

Warning of Torture

Edwards’ conclusion and warning is eerily reminiscent of those made by her predecessor, Nils Melzer, who served as Special Rapporteur on torture from 2016-2022. In April 2019, only days before Assange was expelled from the Ecuadorian Embassy, Melzer announced his intention to »investigate the case« as part of his mandate. To his own surprise, Melzer eventually became one of the most vocal advocates for this man whom he had once dismissed as just a »shady hacker...hiding out in an embassy.« In December 2020, Melzer called for his immediate release from Belmarsh prison, stating that »Mr. Assange's rights have been severely violated for more than a decade,« and pointed to the 2015 opinion from the U.N. Working Group on Arbitrary Detention that had ruled in his favour. A 2016 blog post published by the European Center for Constitutional and Human Rights (ECCHR) concurred that »there is no doubt that Mr Assange’s situation meets the legal definition of detention in inhumane and degrading treatment.« »Despite the position taken by the United Kingdom and Sweden, this is a very usual and non controversial application of the case-law of the European Court of Human Rights on the definition of detention.

ECHR decided in many judgments (the first one being Aamuur v. France in 1996) related to limbo legal situations and the status of persons who remain ‘voluntarily’ in transit zones of airports that these persons are ‘in detention’.« During the following year, Melzer published the results of his investigation into the Assange case as a 300-page book, »Der Fall Julian Assange« (an English translation, »The Trial of Julian Assage: A Story of Persecution,« was later published in 2022). It seems, as of this writing, that the justice systems of the U.S. and U.K. may respond with the same deaf ears, unless more voices join the fight for the freedom of the press.