11

CAUGHT IN THE NET

When the fax machine at Twitter’s headquarters in San Francisco spat out its latest complaint just before Christmas 2010 it might have been just another dissatisfied customer writing in about a phishing scam or someone else up to no good on the Internet.

But it was in fact the latest development in the WikiLeaks investigation. Addressed to Twitter’s Trust and Safety Department, the four-page fax carried the United States Justice Department letterhead. It wasn’t seeking assistance: it was demanding information about some of Twitter’s highest profile clients on behalf of an unnamed authority, probably the FBI. Twitter was told it should tell no one about the fax, which named Julian Assange, Bradley Manning, Birgitta Jonsdottir, Jacob Appelbaum and Rop Gonggrijp. It was known in the WikiLeaks camp that an inquiry was underway, but it had been difficult to assess exactly which course it was taking. The investigation may have been trying to discover who leaked the ‘Collateral Murder’ video, but the inclusion of Appelbaum’s name suggested the hunt was much wider. Appelbaum operates a Tor, the special Internet system that allows people to communicate without revealing their identities. It was probable that the FBI were trying to link Manning to Assange through this ‘cut-out’ operated by Appelbaum.

Whoever wrote the court document spelt Rop Gonggrijp’s surname incorrectly (there are two ‘g’s), a likely indication the document had been pulled together quickly. Twitter was told it had just three days to comply with the demand to hand over the information.

The court order requested everything that Twitter knew about those named in the fax: where Assange and the others lived, how they paid their accounts, who they sent their tweets to, who they received them from, the telephone numbers they used and their bank account details. The order demanded every shred of information Twitter held on them dating back to November 2009, when it’s believed WikiLeaks first began receiving the initial trickle of classified documents from its well-connected source. Such was the secrecy, the Justice Department’s court order instructed Twitter not to even reveal receipt of the fax, or anything else that related to what it called an ‘ongoing criminal investigation’. The orders had been ‘sealed’ by the Federal Court.

Unlike other US corporations who had rolled over and abandoned WikiLeaks, Twitter decided to confront the government and not release the information without a fight. It had nothing to lose. By standing up to the US administration Twitter made Washington look like Beijing, using heavy-handed tactics to silence free speech. Had Twitter given in it would be seen as weak, and possibly receive the treatment meted out to other companies, like PayPal and MasterCard, who had handed over information without a fight. They’d been knocked offline by activists, their businesses and their reputations badly damaged. Whether or not Twitter took that into account is not known. But as an Internet company that prides itself on supporting freedom of communication, what it eventually did made sound business practice. It stuck by its stated policy that it would only hand over personal information about its users if compelled to by law.

Though Twitter took the fight to court, because of the secrecy order it couldn’t tell anyone in WikiLeaks what it was doing. The Justice Department made it clear that Twitter had to keep the request for information secret. Only when the judge lifted the secrecy order and the court documents were unsealed, was it possible for the names to be revealed, along with exactly what was going on.

Considering the demand was for detailed information about key WikiLeaks personnel, it was clear the grand jury investigation was more than a rumour: it was almost certainly a fact, and more importantly, it was possibly the first step in prosecuting Bradley Manning and Julian Assange under the 1917 Espionage Act. As the Justice Department dug into the WikiLeaks case it called witnesses before the grand jury, examining information and sifting the evidence to see whether the basis for criminal charges could be established.

After the Cablegate revelations it wouldn’t have come as a surprise that the United States government was prepared to brush aside diplomatic niceties to prosecute Manning and WikiLeaks members. The fact that Birgitta Jonsdottir was an elected member of parliament in Iceland, a friendly democracy, did not matter.

Freed from the non-disclosure provision of the sealed court order, Twitter called Birgitta Jonsdottir to break the news. Jonsdottir was furious, and demanded a meeting with the US ambassador. She said the Justice Department had gone completely over the top. ‘I have not done anything that can be considered criminal. It’s not against the law to leak information, it’s not against the law to be a source,’ she said. She is right: it is not illegal to leak material in the United States, which is why there was an attempt to prosecute Ellsberg under the Espionage Act all those years ago when he leaked the Pentagon Papers.

Assange described the Twitter revelations as ‘an outrageous attack by the Obama administration on the privacy and free speech rights of Twitter’s customers—many of them American citizens’.

The tables, however, were about to be turned on the Justice Department. Three of the WikiLeaks group—Birgitta Jonsdottir, Jacob Appelbaum and Rop Gonggrijp—asked the court to ‘unseal’ other information that was being kept from view—details of the investigation itself. They were represented by the Electronic Frontier Foundation [EFF] and the American Civil Liberties Union [ACLU]. It’s a standing joke that from the ACLU’s Manhattan office it is only possible to catch a glimpse of the Statue of Liberty, and justice can be similarly elusive. Nevertheless, it had already successfully argued that the attorney general had been in breach of the First Amendment’s right of free association and the Fourth Amendment’s protection against unreasonable search. Now the EFF wanted to test the constitutional right to question government to the limit. It argued that unsealing the court documents and revealing the details of the investigation would contribute greatly to the public’s ability to ‘participate meaningfully in this ongoing debate’ about freedom of the press. The case presented a rare and valuable opportunity for the public to learn more about the nature and scope of the government’s use of electronic surveillance orders, the EFF said.

As Judge Theresa Buchanan mulled over the arguments in the Eastern District Division Court, not far from where a special Pentagon team had been working on the case, Julian Assange’s legal representatives were noticeable by their absence. WikiLeaks described the hearing as ‘the first round in the US Government’s legal battle against Julian Assange’ but said neither it nor Assange would be present for the hearing because they believed that in this case the United States lacked jurisdiction over ‘activities beyond its borders’.

While the case was being heard in America, Twitter was making an impact on events in a former French colony perched on the northern coast of Africa. From the regional towns to the backstreet bazaars and the wide boulevards of the Tunisian capital Tunis, everyone knew that President Zine el-Abidine Ben Ali was corrupt. The people had watched government ministers become millionaires, while the regime siphoned off the nation’s wealth.

Like many revolutions it wasn’t one event that started the protests. First came the death of a street trader who set himself alight, protesting he’d been humiliated by a local official. This was closely followed by the release of the Cablegate documents. Thousands of Tunisians tweeted a link to a WikiLeaks story that said Ben Ali had presided over an orgy of corruption: the boats, the homes, the businesses, had been bought with money that rightfully belonged to the people. Significantly, the cables also revealed that Ben Ali did not have the guaranteed backing of his ally, the United States, indicating that the dictatorship only had the army’s support. The people of Tunisia took to the streets—convinced for the first time that the US would not intervene to support Ben Ali.

Le Monde journalist Florence Beaugé, who had been expelled from Tunisia in 2009 for writing critical articles about Ben Ali, knew first hand the importance of the cable to the Tunisians. ‘It was as if for the first time someone told the Tunisians: “You are not insane. You are right to hate him. You deserve better,”’ Beaugé said. ‘Tunisians could read what an official said from the outside: Ben Ali and his family were crooks and robbers and he was a dictator. It gave them tremendous encouragement to bring down the president.’ Even Bill Keller from the New York Times was fulsome in his praise: WikiLeaks cables in which American diplomats recounted the ‘extravagant corruption of Tunisia’s rulers’ helped fuel a popular uprising that overthrew the government.

As Ben Ali and his family fled into exile in Saudi Arabia, Assange was wary about claiming credit for the downfall. Assange’s plan had been to link up with the ‘old media’, Le Monde, to widen WikiLeaks’ reach into the French-speaking world. But in Tunisia the newspaper had no impact: Le Monde had been banned since Beaugé was ejected. In the end it was the new media—WikiLeaks links being spread by Twitter, Facebook and Al Jazeera—that cut through.

WikiLeaks was a brilliant example of what had been known for some time: the power of information from a legitimate source, disseminated via social networking systems, to threaten the power of the state and its institutions. And it made no difference whether a country was democratic like the United States, or autocratic, like Tunisia and Egypt, where president Hosnai Mubarak had ruled with US backing for nearly thirty years.

In Cairo on 29 January 2011, when demonstrators moved into Tahir Square for one of their biggest rallies in opposition to Mubarak’s rule, they too were spurred on by evidence from WikiLeaks. Just a few hours earlier WikiLeaks had released cables from US Ambassador to Egypt Margaret Scobey, reporting police brutality was ‘routine and pervasive’ and that there had been ‘standing orders’ from the Interior Ministry for police to ‘shoot, beat and humiliate judges in order to undermine judicial independence’. The demonstrators who, like their Tunisian counterparts, used Twitter and Facebook to organise, had other messages flashing across their mobile phones: a US embassy cable also said that the Americans suspected the Egyptian government of torturing a Facebook activist who had organised a strike, to scare others into ‘abandoning their political activities’. While the world looked on with fascination and a large degree of dread about the escalating bloodshed, Mubarak was ousted from power after just eighteen days of protest, replaced by the military until promised democratic elections.

Ironically, at the same time in the US, WikiLeaks was facing the possibility of being prosecuted for leaking the documents that were playing a significant role in achieving what the White House wanted: free speech in other parts of the world. In an address on censorship in January 2010 at Washington’s Newseum, a museum of news, Secretary of State Hillary Clinton made special mention of Tunisia and Egypt, naming them as countries where the ‘free flow of information’ was threatened. She added that any nation which restricted free access to information risked ‘walling themselves off from the progress of the next century’.

Assange was buoyed by her comments, hoping they marked a change of direction in US policy by demonstrating Washington’s support of a more open form of government—in the United States as well. He saw it as a possible shift away from the hard line against whistleblowers that had been pursued by the Obama administration.

Assange believed that the United States had used the principle of free speech as a ‘stick’ with which to beat the former Soviet Union. This was something that united the hawks (hard line anticommunists), and the liberals during the Cold War—the hawks because it attacked communism, and the liberals because it allowed them to argue that if free press was good for the Soviet Union it must also be good for the United States. The problem, as Assange saw it, was that with the end of the Cold War, the free speech argument was no longer important so the hawks were reasserting themselves. ‘They’re annoyed by people publishing, they’re annoyed by a free press, they’re annoyed by leaks, so they want to get rid of the free press,’ he said. It may sound far-fetched, but there’s some evidence to support his view. Despite Clinton’s championing of an unrestricted Internet, which she described as ‘the public space of the 21 st century—the world’s town square, classroom, marketplace,’ the Obama administration has been cracking down on freedom of speech at home. In the past two years it’s outdone all previous administrations in pursuing those who leaked classified information. According to US author Jonathan Alter, Obama was ‘fearsome’ on the subject and went on an ‘anti-leak jihad’ over some of the disclosures.

‘They’re going after this at every opportunity and with unmatched vigour,’ said Steven Aftergood of the Federation of American Scientists.

Bradley Manning and Julian Assange are just two in a long line who are under investigation. An FBI linguist has already been jailed for twenty months for leaking information to a blogger, and an employee of the National Security Agency (NSA) has been charged for allegedly handing over classified information to the Baltimore Sun about an intelligence project which even the NSA admitted in the end had wasted a billion dollars of taxpayers’ money on a failed contract.

On 7 February 2011, Assange was back in court in London fighting the extradition request from Sweden. The nearby Belmarsh Prison, known as Britain’s Guantánamo Bay because of the number of terrorism suspects who had been held there without trial, was a constant reminder to Assange of what his lawyer Mark Stephens repeatedly said might be his fate if the Swedes got their hands on him. His legal team argued that there was a strong possibility that US prosecutors would seek Assange’s extradition from Sweden to the United States. Geoffrey Robertson QC said there was a suggestion that the Swedish prime minister had meddled in the case with his remarks in parliament. Assange’s defence relied heavily on attacking the Swedish legal system, arguing that he wouldn’t get a fair trial there.

They brought in Britta Sundy-Weitman a retired Swedish judge, who suggested Swedish prosecutors illegally leaked information of the sex crime accusations and that the media in Sweden had ‘turned very hostile’ towards Assange. She saved her most damning assessment for the Swedish prosecutor, Marianne Ny, claiming Ny was ‘anti-men’ and prejudicial towards Assange.

Forty-eight hours earlier, the entire contents of the case against Assange—sent to his lawyers by the Swedes—had been published online. Just who it benefitted wasn’t clear but it did reveal that one of the women who accused Assange of rape had let him carry on having sex with her when she woke up even though he wasn’t wearing a condom.

Inside court, the focus was on the allegations themselves, which, for the first time, were being examined in public. The Swedes wanted Assange for questioning and possible prosecution for the ‘unlawful coercion’ of one of his accusers, which involved ‘a firm hold of the injured party’s arms and a forceful spreading of her legs’; ‘sexual molestation’; knowing that although it was ‘a prerequisite of sexual intercourse that a condom be used, consummated sexual intercourse without her knowledge’; a second allegation of ‘sexual molestation’ in that ‘Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity—that is, lying next to her and pressing his naked, erect penis to her body’; and finally, rape: in an ‘aggravating circumstance’ knowing it was a ‘prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her’.

Much of the argument in court revolved around whether or not rape meant the same thing in English as Swedish.

Assange, dressed in a dark suit, sat behind a glass screen while Robertson argued that the sex was consensual, citing evidence given by one of the women that sexual relations occurred four times over the night after [which] both parties fell asleep. ‘It is hyperbolic and irrational to suggest there was wickedness involved.’ Robertson also made much of the fact that Assange had made himself available for interview with the Swedish prosecutor, Marianne Ny, on several occasions, even offering to talk by Skype while he was in England.

It seemed like an open and shut case of prejudice: a man-hating prosecutor who bent the rules and sought extradition unreasonably. The problem was, it wasn’t true: Ny had in fact sought an interview with Assange, damaging the defence’s argument. Assange’s case collapsed and Judge Riddle ordered the extradition to go ahead.

Assange had barely left the court when his legal team announced they were heading back to the High Court to appeal the extradition decision. It was set to be a protracted legal fight. Next time the stakes would be much higher and if they lost there would be only two more appeals they could make—the British Supreme Court and finally, if all else failed, the European Court of Human Rights in Strasbourg. The stop after that would be Stockholm.

The reason Assange was resisting extradition to Sweden so vehemently is intriguing. When I spoke to him in December 2010, Assange said he was worried he wouldn’t get a fair trial in Sweden. He has a point, part of the hearings would be heard in private, something which Judge Riddle pointed out is ‘alien as far as our system is concerned’. He was also concerned about what he said was the close relationship between Swedish intelligence and the United States. If that really concerned him, he’s certainly worse off in Britain. There are no two countries closer in intelligence sharing than Britain and the US, with the possible exception of the US and Israel. It’s generally accepted that Britain’s extradition laws heavily favour the United States, much more so than in Sweden. In the end, Assange may have been better off just facing the music in Sweden, unless of course his real concern was the strength of the case against him.

Throughout the court hearings it seems that Daniel Ellsberg, though not uncritical of Assange, had been playing the long-distance role of father confessor to him. The two had been in regular contact since Assange came under attack after the ‘Collateral Murder’ video. Ellsberg had spoken to Assange about the Swedish sexual assault charges and believed that Assange had been telling the truth when he said he was innocent, but he thought he hadn’t handled the issue well. It was no use just saying that he didn’t do it: he had to explain himself, Ellsberg told Assange. WikiLeaks’ ‘media handling’ had been bad. ‘He denies the allegations which is fairly ambiguous because it could mean that he denies that this stuff was illegal, he denies the interpretation of it.’ Was Julian Assange denying that the events occurred at all? It was too unspecific and wasn’t convincing, he said.

There is often a conflation between the trouble Assange gets into with his work as editor-in-chief of WikiLeaks, and his personal life. Assange himself often points out the need to draw the difference between public issues and personal privacy. And yet, as he stood outside Belmarsh Magistrates Court he blurred the boundaries himself asking why he, as the head of a non-profit organisation, should be subjected to what he believed was unjust treatment. Assange was saying: if you support WikiLeaks you should support me.

WikiLeaks prides itself in demanding answers to tough questions—but what assessment is to be made of Julian Assange and WikiLeaks itself?

Assange has travelled a long way from Townsville, his nomadic childhood days with his mother and a wandering life in adulthood before arriving on to the world stage. He has turned himself and WikiLeaks into a significant political player, but precisely identifying his politics is difficult.

His world view was shaped by the Australia of the 1970s and 80s, especially its hacker community. He’s been described by the US State Department as an anarchist, but that’s not how Assange sees himself. Back in May 2010 when we first met, Assange did not answer the question of whether he was an activist or a journalist, pointing out that his objective was what he called an ‘end state’—the creation of a ‘more just world’. He was goal-driven and it was extremely satisfying to him, he said, ‘to push all of my abilities to the very edge in pursuing that goal’. It wasn’t exactly a ‘whatever it takes’ philosophy, but it wasn’t far from it, and it indicated a certain kind of hubris.

His beliefs sprawl across the political spectrum, with unlikely support from right-wing libertarians. He is certainly no classic lefty, and appears to be primarily motivated by anti-authoritarianism, not anti-Americanism. His support of the First Amendment is testament to that. It may well be that Julian Assange simply has an Emperor complex, as some former WikiLeaks friends have said. Whatever Assange is politically, he has built an empire of ideas that are intellectually and socially challenging.

Nick Davies, the investigative reporter who landed the cables and war logs deal for the Guardian says of Assange: ‘He has grown up being the cleverest person in the room.’ Lisa, the mother of his daughter, put it this way: Julian ‘always wins because he is smarter, and he’s right’. He rationalised everything and became upset when someone ‘didn’t think of his feelings’.

The contradictions in Assange abound. Davies said of him: ‘He was brave and I liked him’ but as time went by he found he couldn’t trust him. Assange didn’t seem to understand the ‘normal human feelings’ that were involved in the betrayal of trust. Davies said Assange had told him when they were in Stockholm together: ‘I am somewhere on the autistic side,’ and added, apparently jokingly: ‘Aren’t all men autistic?’ Whether or not it was a joke, there are some in the WikiLeaks camp who believe his humorous self-diagnosis could have had a strong element of truth in it and may explain some of his difficulty with both professional and personal relationships. It takes someone with an extraordinary cast of mind and character to make the enemies he has made.

Despite it all, Davies is still intrigued by what Assange has achieved. ‘It is like he is in a fantasy world,’ he said. He fantasised in Melbourne about creating a system that could take on governments. And that, is what he has done.

Just five years ago, WikiLeaks was a name carefully written on a whiteboard in a Melbourne terrace. The International Subversives made some contribution to the idea that eventually became WikiLeaks, but it was Julian Assange who brought it all together. WikiLeaks harnessed twin powers: Assange’s intellect and commitment to social justice, and the emergence of the greatest revolution in communication since the printing press, the Internet. It might be too early to make an assessment of WikiLeaks’ impact, but there are many who believe that it has changed the world already. Oddly enough, one of its greatest supporters, Daniel Ellsberg, has his doubts.

Ellsberg is not optimistic that WikiLeaks will win the battle against secrecy and force organisations to be more open. Nor does he believe the secrecy of closed organisations will eventually destroy them, which is the view Assange takes. Ellsberg, who has been championing more open and accountable government for the past forty years has an interesting perspective on why Assange holds the beliefs he does.

‘I think it’s because he’s thirty-nine years old, not seventy-nine years old. I think it’s the kind of political naïvety which for me doesn’t damn him, it doesn’t mean he’s worse than a lot of other people, but I really don’t agree with it.’ Ellsberg believes instead that governments will get more secretive to preserve themselves. He cites the Stalinist regime of the old Soviet Union, which lasted ‘only seventy years or so’ but it was long enough: ‘to kill scores of millions of people’. While he applauds much of the work done by WikiLeaks, what Ellsberg fears is a backlash in the US and the introduction of an Official Secrets Act, which would curtail parts of the First Amendment. If that happened it would be a huge defeat for Assange, whose stated goal is to bring the benefits of free speech enshrined in the First Amendment of the US Constitution to the entire world. The unintended consequences could be that WikiLeaks achieves just the reverse of what it hopes—a lessening of free speech in the United States.

What’s significant about WikiLeaks is not that it has leaked material—leaks have occurred for years—but that it has shifted such a huge volume of data into the public domain and it has been able to do this without sources being discovered. (If Bradley Manning is the leaker of the biggest document dump in history, he was only caught because he confessed.) It is the welding of a desire for change and the capability to affect that change that has created such a powerful force. Ellsberg’s argument that large organisations and even countries will become more secretive under the threat of WikiLeaks may be right in the long term, but recent examples suggest that in the short term at least there have been great benefits to democratic movements in Tunisia, Egypt, Yemen and Bahrain.

If WikiLeaks had existed before the Second Gulf War it’s not unimaginable that the invasion of Iraq may have been averted. There was enough concern inside intelligence agencies, including the CIA, for those working there to plausibly have sent incriminating documents to WikiLeaks. Plenty spoke up after the invasion, but only one, Australia’s Andrew Wilkie, an intelligence officer at the federal government’s Office of National Assessments, had the courage to quit and reveal the truth publicly before the invasion. WikiLeaks has lifted the bar even higher on what the public can expect. Governments cannot be trusted on their say so. Journalists, too, will have to be more demanding of governments if they are to be believed or trusted.

The cast of characters scattered throughout this book is a who’s who of old and new journalism. They were all caught up with the pursuit of truth of a kind, but how they went about it is as interesting as the final outcome. Maybe it was the cutthroat world of journalism, mixed with the new speed of instant communications and huge data drops, that led to some unprincipled behaviour on the part of a number of parties.

It is hard to imagine a greater degree of fear and loathing from people supposedly on the same side of an issue: the disclosure of information the public has the right to know about. Most have been damaged in some way by their experiences in the murky world of cyberspace, where ethics are often whatever you think and theft is covered by a pervasive belief system that information is a free commodity. Many of the actors in this drama, including the New York Times and the Guardian, have published their own version of their experiences, which is probably as much about getting their version of history out first as it is about settling old scores and comforting themselves that they didn’t behave too badly.

The real victim in all this is Bradley Manning, whether he is guilty or not. He had already been accused of illegally downloading classified material, but in early March 2011 further charges were added of ‘aiding the enemy’, an offence for which he could be sentenced to death. He’s been held in solitary confinement for twenty-three hours a day since May 2010 without trial, something his supporters say amounts to psychological torture, an allegation being investigated by the United Nations. For many, Manning is a truth-telling hero, as Ellsberg—a steadying voice of reason throughout—portrays him. For others he’s a treasonous villain. The man who dobbed him in, Adrian Lamo, has the dubious distinction of making many of the others involved look honourable. His role as an online celebrity posing as a journalist-turned-informer is probably the least appealing of them all. Lastly, there’s Julian Assange, who emerges as a fearless and charismatic character, but also someone who is complex and mercurial. He’s either a man of little credence who has fanned the cult of personality around him, or a journalistic saviour, depending on your point of view.

WikiLeaks is now in danger of unravelling. The safe haven for journalists in Iceland, with shielded offshore bank accounts providing protection from vexatious legal action, are still to be achieved and WikiLeaks’ financial security is not looking good. In early 2011 the organisation still can’t take whistleblower submissions because Assange still doesn’t have the keys to the system. Yet whether WikiLeaks survives or not it has spawned a huge number of copies around the world, including websites like Domscheit-Berg’s OpenLeaks, making it difficult for authorities to prevent further leaking.

Whatever the future brings for Assange and his organisation, WikiLeaks has provided a new way to achieve better journalism by challenging powerful institutions, be they governments or corporations. There will be difficult issues, as always, over what to publish and what to keep secret. But the old journalistic maxim ‘publish and be damned’—a phrase first used by the Duke of Wellington to dismiss a blackmail attempt nearly 200 years ago—seems to capture the feeling of the moment. WikiLeaks and Julian Assange have delivered to journalism an old-fashioned idea reborn: real journalism is simply the disclosure of whatever powerful vested interests want kept secret.