What Is an Assange? Part 2

Recently, I sat down with George Washington Law School professor and constitutional scholar Jonathan Turley and my close friend Kevin McCabe to discuss WikiLeaks' impact on transparency, the government's response, and the comparison to the Pentagon Papers whistleblower Daniel Ellsberg.
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Two and a half weeks ago, I was pleased to help launch the Freedom of the Press Foundation, which aims to promote and help fund independent journalism organizations who aggressively report on issues that the U.S. government considers secret. You can read about it here (and see Freedom of the Press Foundation co-founder Daniel Ellsberg's post here).

Below is the second part of my conversation with Jonathan Turley and Kevin McCabe. You can read part one here.

We left off speaking of Assange, publishers and journalists -- about definitions and constitutional protections in the new digital world -- and the grey areas that seem to be artificial and convenient for those in power -- with the media's largely passive response.


Jonathan Turley: The government is treating him as if he is a hacker. In fact, many people insist that it's clear he's not a hacker, that he somehow got this material from a third party.

John Cusack: -- Like the New York Times got from Ellsberg -he was the third party

Jonathan Turley: Right. I think that if he's a hacker, it's difficult to treat him as a journalist. And it may be difficult to treat him as a whistleblower.

Kevin McCabe: Another element to it -- my understanding of it; was that when he was negotiating with the Times, regarding what would be reported therefore verified and validated through the New York Times and the Washington Post -- he lost any ability to get into the club, because of the way he engaged them.

Apparently when the Times set out parameters, Assange became difficult and insisted on a different approach, the Times was like no, that's not how we do it and Assange lost any institutional support going forward, on an ongoing basis, to be considered a journalist because he wouldn't play by those rules. So it's just an interesting part of the dynamic, when you so eloquently put that -- it's sui generis, but of what? He's neither fish nor fowl, but he's serving, and filling a vacuum and serving the public by disclosing information and reporting information everyone should be aware of.

John Cusack: So Jon, on the same terrain -- if you give me information and I decide I want to put it out on, say Twitter, -- and it'll reach a million plus people -- am I in the same class as Assange -- if somebody sends me a video of a crime, and I believe a crime has been committed? Do I have a right or moral obligation to expose the truth...And am I protected?

Jonathan Turley: Well, this is a longstanding conflict that we've had in the civil liberties community with Congress. In fact, I testified before the House Intelligence Committee years ago on the move by a number of members to criminalize the publication of classified information, whether you're a journalist or anyone else. So they were including all the journalists, as well as non-journalists.

And this had the support of the Republicans and Democrats. Members of Congress tend not to like whistleblowers, or journalists for that matter, because they get them off-script and when they are most vulnerable. They make this less controllable. I have previously testified before both Democratic and Republican members considering a disastrous move toward criminalizing the publication of classified information regardless of how you receive it.

The question of your releasing the same information on Twitter is interesting. Given your status, you actually reach more people than virtually all of the daily newspapers. So you're reaching over a million-plus people with a single tweet that most newspapers would dearly love to replicate.

John Cusack: We both blog and write on line -- as we are now --

Jonathan Turley: Then, we get into this serious question of why you're not a journalist but Chris Matthews is. I mean, you actually are likely to reach 100 times more people than MSNBC would on any given evening because of your status.

John Cusack: One of Arianna's big ideas was to create what she calls citizen journalists to participate and have your voices heard, -- and ordinary people could be alongside -- right up there with Hillary Clinton. And blog, and she'll aggregate news. She's created this kind of revolution in her own way. But it has to do with connectivity and aggregation and the idea of a citizen journalist. So is Assange basically a citizen publisher? It gets back to the same question -- what are the rights of people to expose the truth? Where are their protections?

Jonathan Turley: I think that's right. And this is where I think the media has decided to go conspicuously silent. Because there's no question that Assange's release of this information resembles the type of act for which journalists have received Pulitzers. He released information that came to him, and information that had not been released in any other forum. That information dealt directly with government deception and potential crimes.

So it walked and quacked just like a journalistic story. But they're not willing to call him a journalist.

John Cusack: And so therefore, he has no protections?

Jonathan Turley: Well, that's how the US government is dealing with it. They have rather transparently opted to deal with him as a suspected hacker. And they're going to pursue him on that ground. If they get their hands on him, I expect they're going to do everything they can to keep him in jail. They need to hoist the wretch, they need to make it clear that you won't get away with this if you embarrass the government and release this type of information. Both the Bush and Obama Administration have previously threatened journalists. They are not going to hold back on Assange if they have already threatened to prosecute reporters.

John Cusack: As the man once said -- You have the right to free speech -- as long as you're not dumb enough to actually try it. So it's another part of the widening clamp-down on civil liberties and freedom of speech.

Jonathan Turley: Indeed.

So the Justice Department continues to insist that journalists and others who receive classified information are technically violating the law if they know that they are in possession of classified information and release it. This is an age-old argument that we've seen since Nixon. There's a continuing hostility towards journalists doing this type of act. I think that's what makes Assange such a tempting target for the government. Because they know they can pursue him and that the media is equivocating as to whether to support him, or even whether to explain him to the public.

I mean, the astonishing thing is that after all this time, Assange remains as much of a mystery as he was in the first month. The question is why. And the media really is treating him the way the government is. He's not a journalist, he's not a whistleblower; he's an Assange. He's becoming a noun unto himself.

John Cusack: Yeah, that's true.

Kevin McCabe: He's not one of them.

Let me ask you a question -- from a legal point of view, the fact that the government can take a very strict and a very calculated, and almost singular, approach to leaks, and individuals who do the leaking; yet for their own political purposes have [routinized] leaking to outlets that they favor, in order to control the message in politics?

Jonathan Turley: You're right, that's always been that hypocrisy --

John Cusack: And then the other hustle -- the grand diversion we do. We start to leak personal peccadilloes and/or personality profiles that make us either like or despise a person, and we never know what's actually true-- Assange is vain, he's messianic, a sexual predator etc etc -- none of us know whether it's true or not; We have no idea.

Jonathan Turley: Right.

John Cusack: But the argument then pivots to the, perhaps, feigned personality disorders of the individual, not to the principle behind it or the content intrinsic to what they're doing.

Bradley Manning exposed the brutal murders of human beings.. Daniel Ellsberg, also a co-founder of Freedom of the Press Foundation, even held up a picture saying "I was Bradley Manning" and yet I still hear -- "It's not a valid comparison." -- all the time -- All the while governments leak to their own political advantage frequently --

Jonathan Turley: Well, I think -- you really have to wear waders to get through the hypocrisy of this issue with Washington.

When I was testifying in the House Intelligence Committee, these members were coming off like Claude Rains -- that they were 'shocked, shocked' people are leaking things in Washington. Some of these people routinely pick up the phone and leak embarrassing things against each other. And that's viewed as part of the game.

But I think that they share a certain dislike for journalists and whistleblowers doing it.

Kevin McCabe: What is the legal standard? If there was a comparable dynamic, a comparable scenario, not Assange, somebody who is being accused of being a leaker or hacker, or a non-whistleblower threat to America. And then, there's a government entity that's -- either on instructions or on their own volition -- setting up an investigation; from a strictly legal point of view, what is the protection for the individual that's initiating the action, whether it's well-intended or more venal; and whether you're a government official or a citizen, or even a non citizen -- what are the legal standards for saying -- I can leak, but you can't?

I cannot believe that Leon Panetta is allowed to call up the mainstream media and say -- don't report that story, here's a better story, and I need this, or whatever. They do it all the time. But if somebody else does it, he can get the electric chair. I don't get it.

John Cusack: Or the differences being that because Seymour Hersh doesn't burn his sources, he can release classified information about Iran attacks or WMDs... because besides the hacker argument which we don't know if its true -- are they falling back on the method to which he's gone about releasing this information? Or is it just a general deep-freeze in hypocrisy?

Jonathan Turley: Well, I think the problem is the legal standard. If you read the federal law, it's quite sweeping that it is a crime to possess classified information without having a clearance or a need to have that information.

Kevin McCabe: Is Judith Miller in that world, or is that different?

Jonathan Turley: Well, that can be used against any journalist who receives classified information like the Pentagon Papers. And the problem is that the courts, particularly since the Rehnquist court, have gradually reduced the journalistic privilege in this country. There's a crime fraud exception to the journalistic privilege, which is why journalists can be pulled into grand juries and thrown into jail for not testifying. That's not just for classified matters but for any criminal matter.

John Cusack: But then it doesn't uniformly apply to the government. So when Rove released Valerie Plame's identity, -- well, I guess they got Scooter Libby, so they gave up one head.

Jonathan Turley: Well, but there's a lot of those types of conflicts. I mean, you had Sandy Berger, who reportedly put classified material in his sock and walked out of a secure facility. Any other person doing that would likely have been prosecuted, and he --

Kevin McCabe: And leaked it. It wasn't like he was bringing it home to put in his varsity album.

Jonathan Turley: Yeah. So there's a great deal of that.

People don't realize that the Obama Administration has been, if anything, harder on whistleblowers than the Bush Administration. Part of the reason is that they know that the response will be more muted because the traditional constituency supporting whistleblowers just happen to be the same constituency as Obama's. And so they --

John Cusack: Can you explain that a little more? I don't quite understand that.

Jonathan Turley: Well, that the Obama Administration, in the area of whistleblowers, has taken the same position as they have with regard to civil liberties. That is, they are fully aware --

John Cusack: Institutionalizing the Bush agenda, the massive expansion of executive power...

Jonathan Turley: But they have more of an ability to do it, because they know that they're starting out by dividing the usual --

John Cusack: Opposition.

Jonathan Turley: -- community, right --

John Cusack: Got it.

Jonathan Turley: -- that supports whistleblowers. And it's the same thing with civil liberties -- they know that at least half of the usual folks who support whistleblowers will remain silent if the assault is by President Obama. And it's part of this cult of personality that has taken hold of so many liberals and Democrats and progressives.

John Cusack: Yeah. We see that every day.

Jonathan Turley: But the crackdown on whistleblowers is an example of a rather muted response. The Obama Administration has gone full tilt against whistleblowers. They have shown very little sympathy or restraint. But there has been precious little coverage of that. I mean, I thought the Democratic Convention was eye-opening, when you looked at the party platform from 2008 in comparison to 2012. Whole areas of civil liberties disappeared between those two conventions. And even though it's true that these conventions are pretty much content-less, the refusal to even mouth support from some of the principles in his reelection campaign was really striking from indefinite detention to torture.

John Cusack: I know.

Jonathan Turley: I mean, it's evaporated. The same thing with warrantless wiretapping -- drone murders -- even Americans killed without out even a coherent legal argument or standard --

John Cusack: But he was on Jon Stewart, and he did say that killing Americans isn't optimal,

Jonathan Turley: Yes.


John Cusack: -- that is sort of a loose acknowledgement of some of the messy and pesky affairs of state.

Jonathan Turley: Yes. It's sort of like taking a convertible out in the rain. It's not optimal.

John Cusack: No, not optimal. Sometimes you just need to hold people in prison without trial and assassinate them. But not optimal.

Jonathan Turley: It really does show the infatuation with drones in this administration. Few people know that President Obama has used drone attacks many times more than Bush ever did. Obama's off the charts in terms of drone attack.

John Cusack: -- and these are acts of war, on sovereign countries, and innocents are being killed, right? But we call them suspected terrorists, and butcher them. In reality we don't know who they are -- or who we're killing -- or why.

Jonathan Turley: Yeah, this is another example of this sort of nuanced meaning that we find in the Obama Administration -- what is a drone attack? A drone attack is an assassination. It is targeting an individual to kill them.

John Cusack: That should be underlined in blood -- As you said, your due process is served when your car explodes -

That's interesting, because it's kind of a twisted parallel to what is an Assange -- what is a journalist? All this profound sickness -- people just don't seem to want to acknowledge it and it isn't really even defended -- just routinely ignored -- it isn't just that the excesses of the Bush Administration haven't been righted -- there's an escalation of warrantless wiretapping, an escalation of drones, an escalation of intimidation of whistleblowers. These things are escalating exponentially. Is that a fair statement?

Jonathan Turley: No, it's absolutely fair. But these Democratic leaders have largely abandoned civil liberties. They'll still give rhetorical flourishes about civil liberties. But these are some of the very same people during the Bush Administration that were told about things like the torture programs. Some were the same people that blocked any congressional investigation of these programs.

So they're heavily invested in this national security system that we have. And that's not going to change just because Obama's in his second term. Congress is still heavily divided. These politicians will be looking to the next election in two years, and so will Obama. And they're going to continue the same scripted approach to civil liberties. They are going to continue to give the national security crowd everything that they want.

John Cusack: It's so bizarre, because even when we talk about civil liberties, it sounds sort of like a very fringy issue -- kind of a kitsch, kind of like a thing that collectors of small trinkets do. I like my little Chinese boxes, I like my civil liberty.

What I don't understand is -- and that's why I think maybe it's just racism -- perhaps since it hasn't happened to anyone that we know yet, just those Arabs or brown skinned people from failed states. Fuck em .. It doesn't matter if they can throw Bradley Manning in jail. Doesn't matter if they can throw any Arab in jail or murder them, or their families at a wedding -- If the government can simply say -- we suspect this or these people are terrorists, we can pulverize them -- obliterate them from the face of earth.

Jonathan Turley: Or, more importantly you're going to have the same division. People are still not going to feel that they can oppose Obama, when the Republicans are even further to the right.

And so you're going to have the same dynamic. It's the same echo chamber that exists today. And that's why Obama's been so disastrous for the civil liberties movement. I wrote a column a few years ago, about the death of the civil liberties movement, for the LA Times. And it details how devastating Obama has been to the movement. I don't think his re-election will help, but rather hinder a meaningful movement to crystallize. It's not going to come together.

I think it could have come together if Romney were elected, ironically. I think it would've come together if McCain had been elected because you would have the removal of this very divisive figure, which is Barack Obama. Because many people just cannot fight on these civil liberties issues when they're fighting against this iconic figure.

John Cusack: Kevin, how do you see it playing out politically? Do you see any good news coming down the pike, or is it really just we have the obligation to tell the truth and take the beatings? Or rather watch on as others do -- in reality..

Kevin McCabe: I think we have too many problems at the same time: One. the Congress -- regardless of whether it's Democrat or Republican, the Congress, both the House and the Senate, are bought and paid for by "POLITICS/GOV. Inc. who control it. The commercial, professional consultants/lobbyists/fundraisers/operatives -- they run the business of Washington, DC now. So you have very few openings for anything creative, any alternative, any solution and the public at large is looking for solutions.

Two, Jon makes a great point that I hadn't thought about before. The fact is that there's no 50-50 split. There's a different kind of split. And the reason that Obama has not been as good as he could've been is because he's being enabled. And every day, there's this silent enabling of people who are afraid of being viewed as disloyal -- ooh, don't say that, you can't say that, you can't say that. He's our guy.

Well, the fact of the matter is, politically, if you don't have your supporters pushing you towards an agenda, pushing you to be better, pushing you to a higher plane...you leave it to the ego -- or to Obama's ego, or his vanity, or his narcissism, whatever you want to call it -- we will not benefit. The people at large will not benefit, it is about him, not the people.

So there's this, I believe, unintended, or well-intended, silent enabling by giving him a pass. And it's not just civil liberties.

What scares me the most is that so many of the people that are on the sidelines, that would have to be activated -- motivated and activated to make a movement, are taking it for granted.

John Cusack: I will see Assange soon and report back...

For more, check out Jeremy Scahill's Dirty Wars and his video at TheNation.com.; Glenn Greenwald's posts at The Guardian, here and here.

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