The real question here is why the Australian government is playing nice by issuing Assange a passport since it has refused to acknowledge evidence of a sealed indictment or provide him with any sort of substantial assistance to get him home in the last eight-plus years.
CANBERRA, AUSTRALIA — On February 21, 2019, the Sydney Morning Herald reported that Australia’s Department of Foreign Affairs and Trade (DFAT) issued Julian Assange a new passport despite the fact that DFAT officials had reservations about doing so. According to the article, last year officials stated that Assange’s “entitlement to a passport” might be affected by “an arrest warrant in connection with a ‘serious foreign offence’ within the meaning of Section 13 of the Australian Passports Act 2005.”
Section 13 of the Australian Passports Act states that an application may be rejected if the applicant is subject to an arrest warrant for a serious foreign offense, is restricted from traveling because of a serious foreign offense, or if the issuance of a passport would compromise proceedings connected with a serious foreign offense.
However, it would be extraordinary if the Australian government’s reservations last year had anything to do with a U.S. indictment or charges against Assange, some of which may include charges under the Espionage Act, since it not only went ahead and issued the passport but as recently as last week maintained that there is no evidence of any U.S. charges against Assange.
In fact, parliamentary documents dating back to 2010 reveal not only that the government rarely takes seriously evidence in Assange’s case, but also that it has embraced an entirely passive role in helping to secure his freedom, despite the fact that it has used government pressure and diplomatic power to help free other Australian citizens detained in foreign states.
Transcripts from Parliament also reveal a long-standing pattern when it comes to how the Australian government typically responds to anything Assange-related: “There is no evidence of charges or a sealed indictment against him;” and “We are not able to interfere in the legal processes of any foreign government,” are two sentences from the Australian government we should probably get used to.
This stance has been adhered to despite the fact that there is evidence of charges (evidence is different from proof); Assange has been arbitrarily detained since 2010 and imprisoned in London since 2012; political figures have publicly called for his assassination; the U.K. threatened to storm the Ecuadorian Embassy where Assange sought asylum; the UN has ruled twice that he’s being arbitrarily detained; and he’s been established both legally and professionally as a journalist.
With that said, the real question here is why the Australian government is playing nice by issuing Assange a passport yet it has refused to acknowledge evidence of a sealed indictment against him or provide him with any sort of substantial assistance to get him home in the last eight-plus years.
“Whole-of-government” WikiLeaks Task Force
Australia’s abysmal record on supporting Australian journalist and publisher, Julian Assange, became clear in late 2010, when WikiLeaks published Cablegate — a collection of U.S. diplomatic cables that in its entirety spans over 35 years and includes over 270 U.S. embassies, consulates, and diplomatic missions around the world. At the time, the Australian government established a “whole-of-government” WikiLeaks task force similar in nature to the 2010 U.S. WikiLeaks Task Force (WTF) that was created to “make an inventory of the leaked cables” and to report on their impact.
The Australian task force was established by then Attorney-General Robert McClelland at the behest of the Department of the Prime Minister Cabinet, who then became the chair of the group. Other agencies involved included the Department of Foreign Affairs and Trade, Department of Defence, Office of National Assessments, and the Australian Federal Police (AFP). Their job was to closely monitor future Cablegate publications while the AFP was tasked with determining if Assange had broken any laws.
In the meantime, the Australian government contemplated canceling Assange’s passport while then-Prime Minister Julia Gillard publicly decried the publication as a “grossly irresponsible thing to do and an illegal thing to do,” despite the fact that the AFP had not concluded its investigation nor had she been briefed on any alleged illegalities. On December 17, 2010, the AFP concluded that it could not “identify any criminal offence where Australia would have jurisdiction.”
Undeterred by the AFP’s findings and uninterested in protecting an Australian citizen, two months later former Senator and current Australian High Commissioner to the United Kingdom George Brandis asked former AFP Commissioner Tony Negus if the AFP had looked into Assange’s “personal involvement” in the “solicitation of the cables or the posting of the cables.”
Brandis’ question, whether purposely or not, served as a U.S.-government talking point that Assange was directly involved with the procurement of documents that Chelsea Manning allegedly leaked to WikiLeaks — propaganda that seems to have originated publicly with the now-deceased hacker and FBI snitch Adrian Lamo and Wired journalist Kevin Poulsen, and that may be one of the charges used against Assange.
Death threats and calls for assassination
After publishing five major publications during 2010, including a U.S. Intelligence report on WikiLeaks, Collateral Murder, the Afghan War Diary, the Iraq War Logs, and Cablegate, Assange had made some powerful enemies, but even political figures calling his assassination didn’t rouse the Australian government’s interest. After being questioned about comments — made by former Alaska Governor Sarah Palin and the former senior advisor to the Canadian prime minister, Tom Flanagan — that Assange should be “hunted down” and assassinated, then-Minister of Foreign Affairs Kevin Rudd essentially responded that any threats that had occurred should be referred to the United States and Canada.
In the Senate, former Senator Scott Ludlam who fought tirelessly for Assange over the years, tried to address the threats Assange was facing on several occasions, including the possibility of being “transferred without any due process,” also known as “temporary surrender.” During a May 2012 Senate hearing, Ludlam asked the AFP if it would get involved in any situation in which an Australian citizen was being threatened with assassination or extrajudicial killing overseas, to which AFP Commissioner Negus admitted that AFP would need a referral from the Minister of Foreign Affairs — a referral that never came despite “repeated threats of assassination by senior American military officials and civilian political figures.”
And when then-Prime Minister Julia Gillard was confronted with a question about “senior figures in the United States” calling for Assange’s assassination, Gillard effectively ignored the question and responded with the government’s usual rhetoric, “The Australian government cannot interfere in the judicial processes of other countries,” as if death threats fell under this category.
Stratfor and the sealed indictment
On February 27, 2012, WikiLeaks started publishing over five million leaked emails from Stratfor, a private global intelligence firm located in Texas, called The Global Intelligence Files. One email in particular, written by Stratfor’s Chief Security Officer Fred Burton, stood out: “Not for Pub — We have a sealed indictment on Assange. Pls protect.”
Although Burton’s statement looks like a slam dunk on whether or not evidence exists that the U.S. has charged Assange, the Australian government doesn’t see it that way, nor has it ever.
Two days after WikiLeaks started publishing The Global Intelligence Files, Ludlam asked then-Senator Chris Evans, “How long has the prime minister known of the existence of this sealed indictment?” to which Evans responded, “The Australian government is not aware of any charges by the U.S. government against Mr. Assange.” Ludlam later retorted:
So, even though some ex-State Department guy in Texas running a little intelligence organisation apparently knows…the Australian government apparently does not.”
Three months later, Ludlam addressed the Stratfor email with former Senator Bob Carr, who had recently become Minister for Foreign Affairs:
Ludlam: “What can you tell us about the existence or otherwise of a sealed indictment issued by the United States Department of Justice, which would presumably come with an extradition order back to the United States?”
Carr: “We have seen no evidence that such a sealed indictment exists.”
Ludlam: “Have you sought such evidence?”
Carr: “We have not sought evidence.”
Documents released under a FOIA request show that in mid-2012, then-Minister for Foreign Affairs Kevin Rudd acknowledged that a secret grand jury had been impanelled in the Eastern District of Virginia, stating: “I understand that grand juries can issue indictments under seal, and that theoretically one could already have been issued for Mr. Assange.”
And yet a year later the Sydney Morning Herald reported that, when asked about the Australian government’s interest in whether or not there was still an ongoing U.S. grand jury investigation into Julian Assange and WikiLeaks’ activities, Carr responded that “no further inquiries would be made because it doesn’t affect Australian interest.” In an even more dismal display of non-support of an Australian citizen, he added that he wasn’t going to allocate any resources to it.
Julian Assange is a journalist
The day after the Stratfor release, Ludlam also moved for the Senate to recognize Assange as a journalist. But, despite his best efforts, to this day the Australian government refuses to do so regardless of Assange’s history: Assange was awarded The Economist New Media Award in 2008, the Amnesty International U.K. Media Award in 2009, and the Sam Adams Award, Le Monde Readers’ Choice Award for Person of the Year, and TIME Person of the Year in 2010.
He was also granted the Sydney Peace Foundation Gold Medal, the Australian Walkley Award, the Martha Gellhorn prize for journalism, the Italian International Piero Passetti Journalism Prize of the National Union of Italian Journalists, and the Spanish Jose Couso Press Freedom of Expression Award in 2011. Recently, he was nominated for the 2019 Nobel Peace Prize.
But most importantly, on November 2, 2011, the Queen’s Bench Division of the British High Court recognized Assange as a journalist, as did a London tribunal during a FOIA case filed by journalist Stefania Maurizi. The tribunal also recognized WikiLeaks as a media organization.
The storming of the embassy
A few months after the Stratfor release, Assange lost his Supreme Court extradition appeal and immediately sought asylum from Ecuador. He entered the Ecuadorian Embassy in London on June 19, 2012, and, just one day before Ecuador was to publicly announce its decision to grant Assange asylum, things came to a boil. The U.K. threatened to storm the embassy.
Ecuador denounced the threats as “political suicide;” the MSM called the U.K.’s reckless move “unprecedented;” and WikiLeaks stated that it condemned “in the strongest possible terms the U.K.’s resort to intimidation.” But, despite the backlash, the U.K. defended its actions by resurrecting a 1987 British law about “revocation of diplomatic status of a building,” and reinforced its security detail around the embassy.
Former Ecuador Foreign Minister Ricardo Patino stated that any move to assault the embassy would be a “flagrant violation of the Vienna Convention,” and the Australian attorney general at the time, Nicola Roxon, commented that the DFAT’s consular services were limited but that she had an “absolute interest in the case.” Parliament was another story.
Ludlam addressed the Senate during the height of the crisis:
My question is to the Minister for Foreign Affairs, Senator Bob Carr. Minister, in response to several carloads of metropolitan police entering the building that houses the Ecuadorian Embassy in the middle of the night London time, cordoning off the street and threatening to break the door down and threatening to rezone the embassy, have you or the High Commissioner in London made representations to the United Kingdom to not violate the Vienna Convention on Diplomatic Relations by entering the premises of the Ecuadorian embassy without the consent of the head of mission?”
Australia, of course, is not a party to this decision. It is a matter between Mr. Assange and the governments of Ecuador and the United Kingdom…[the] Australian government cannot intervene in the U.K. legal process.”
First, the U.K.’s decision to storm a foreign country’s embassy makes everyone who’s party to the Vienna Convention party to the U.K.’s decision to violate that convention. The U.K.’s threats were not just a danger to Assange but, had they actually followed through with their threat, it would have been a serious violation of international law. Any state that is part of the Vienna Convention should have been concerned, including Australia. The fact that the Minister of Foreign Affairs wasn’t put off at all by these events speaks volumes about the political nature of Assange’s case.
The UN Working Group’s decision
The Australian government has stated on numerous occasions that it has reached out to foreign governments about Assange’s case but Parliament hearings and media reports tend to reflect that this generally means reiterating his right to due process, nothing more. Additionally, it’s questionable how much time the government spends doing that.
For instance, during a February 11, 2016 Foreign Affairs, Defence and Trade Legislation Committee hearing, then-DFAT’s First Assistant Secretary, Consular and Crisis Management Division, Jon Philp, admitted that the government had not been in contact with Swedish authorities since December 2011. That’s a more-than-five-year period during which Sweden dragged out its investigation by refusing to interview Assange in London, while Australia appears to have done literally nothing diplomatically in terms of the Swedish investigation.
Furthermore, when confronted with a 2015 report from the UN Working Group on Arbitrary Detention that stated Assange was (and still is) being arbitrarily detained, then-Secretary of the Department of Foreign Affairs and Trade Peter Varghese both declared that the decision was not legally binding and then admitted that the Australian government had made no “representations at all of any kind,” to Swedish or U.K. officials in terms of the ruling.
On May 31, 2017, Ludlam brought up the UN Working Group’s decision in front of the Senate committee, this time with regards to its subsequent 2016 finding that Assange was being arbitrarily detained and again Jon Philp — as well as former Senator George Brandis, who had become the attorney general by that time — maintained that the decision was not legally binding.
Ludlam responded: “That is remarkable. It is basically an entirely selective interpretation and selective respect and regard for important UN working groups.”
And although Foreign Minister Julie Bishop has been given credit for Assange’s new passport, on February 6, 2016, the day after the Working Group’s decision was released, Bishop released a statement confirming that she had read the report and was “seeking legal advice on its implications for Mr. Assange, as an Australian citizen.” However, a response to a FOIA request revealed that four days later both Jon Philp and the then-director of the Australian Passports Office advised the foreign minister on the UN decision:
We recommend we not seek to ‘resolve’ Mr. Assange’s case following the WGAD opinion, as we are unable to intervene in the due process of another country’s court proceedings or legal matters, and we have full confidence in the UK and Swedish judicial system.”
The FOIA documents also revealed that Bishop stated: “The U.K. and Sweden have rejected the WGAD opinion and, like Australia, do not recognise the opinion of the UN working groups as legally binding.” It would be another two and half years before Assange would be granted a new passport.
In 2016, Assange argued that the UN Working Group’s decisions were indeed legally binding, stating that they are “an opinio juris, which is higher in the hierarchy of international norms,” and that they are “part of the founding basis of the United Nations which the U.K. and Sweden are part of.” After former U.K. Foreign Minister Philip Hammond called the decision “ridiculous,” Assange shot back that the “lawfulness of my detention or otherwise is now a matter of settled law, adding:
They cannot now seek to object to the findings of a process which they themselves were involved in for 16 months. A jurisdiction which they submitted to, recognized, and, in part, founded together with their early involvement in the United Nations.”
You can’t decide that you are going to recognize a forum, take place in proceedings, respond to the other party, and then at the end when you don’t like the outcome because you have been breaking the law and you don’t even bother to appeal, come out with press statements and say, ‘Well, we disagree,’ or engage in purely superfluous ad hominem attacks like saying that a finding is ‘ridiculous.’”
But object is exactly what everyone did. On June 19, 2017, Bishop reiterated that the decision wasn’t legally binding and pointed out that it was directed at the U.K. and Sweden, not Australia. She went on to say that Assange had avoided “lawful arrest” by remaining in the embassy and that the government cannot “intervene in the legal processes of another country.” But that’s exactly what Julie Bishop did with a another case.
Peter Greste is an Australian journalist who was arrested by Egyptian authorities in 2013 and then charged and sentenced to seven years in prison on terrorism-related charges (in this case, reporting). At the time of Greste’s arrest, Julie Bishop indulged the public with the government’s usual rhetoric, “It is not possible for another nation to interfere in the criminal proceedings of another country.” However, she added, “we will continue to press our position that he should be given conditional release while we consider what more we can do to seek his release overall,” despite the fact of an ongoing court case. There’s more.
In a 2015 sit-down aired by ABC News between Bishop and Greste after his early release, Bishop told him that the Australian government made “representations to the Egyptian authorities” that their retrial of Greste “should not have gone ahead.” Bishop also stated:
I spoke to [Egyptian] Foreign Minister [Sameh] Shoukry on July 16 and set out quite plainly Australia’s position, that we wanted you to be able to clear your name, that we would not accept the verdict as being evidence of your guilt, and that it would have ramifications for the relationship and for Egypt’s reputation more generally.”
“[R]amifications for the relationship and for Egypt’s reputation more generally.” It appears that Australia absolutely interfered in the legal process of a foreign state by pressuring or, rather, threatening Egypt with ramifications. Not only that, Bishop went on to say that the Australian government put forth a “concerted campaign of advocacy” involving “high-level diplomatic contacts with the United States, the European Union, the United Nations and countries in the Middle East.”
In a 2014 hearing, former Australian Greens Senator Christine Milne stated:
It is well worth nothing that this is also about the safety of journalists and a free and fair press. Mr. Greste has worked for Reuters, for CNN, for the BBC; he is a well-known, respected journalist accused of very serious crimes. I do not want to see a situation — as occurred previously with Colin Russell — where there is not the level of political engagement that is necessary.
I call on the prime minister to intervene in the case of Peter Greste as soon as he possibly can, because the charges that Peter Greste now faces are serious…I believe he was doing his job as a journalist and we should support him in what he was doing. As an Australian citizen, we should stand up for him.”
Note that there is no mention of Julian Assange. And this from Senator Mitch Fifield:
The Australian government is deeply concerned about the ongoing detention of Mr. Peter Greste by Egyptian authorities. Mr. Greste was detained, along with his colleagues, during the normal course of his work as a journalist.
Journalists have a legitimate role to play in any democracy…The Minister for Foreign Affairs has raised Mr. Greste’s case directly with Egypt’s foreign minister and the Egyptian ambassador to Australia, and will continue to do so.”
Again, former Senator Milne:
I believe they [consular staff] are doing everything they possibly can to serve the best interests of Peter Greste and everything they can to argue for his release. But this is not about the consular staff; this is about where the politics takes it.
The Prime Minister needs to reassure Peter Greste’s family that, at the highest levels of this government, as well as through the Parliament, everybody stands behind Peter Greste and that we are all doing all we can to get Peter Greste home as quickly as possible.”
Former Senator Jane Prentice even noted that the Australian government had created a “multi-pronged strategy” to assist Greste, which included “making direct and high-level representation to a number of other governments.”
And after Greste was convicted by an Egyptian court and sentenced, then-attorney general for Australia, George Brandis, stated: “The government will be lodging a formal request imminently with President el-Sisi, seeking his intervention in the matter.”
If that isn’t interference in a legal process, I don’t know what is. And this case is a perfect example of why the Australian government refuses to recognize Assange as a journalist.
Despite any reservations the Australian government may have had about issuing Assange a new passport, those concerns appear to have absolutely nothing to do with any charges filed by the United States or issued by a U.S. grand jury. In a more recent hearing on October 25, 2018, DFAT Chief Legal Officer James Larsen confirmed that Assange had been issued a passport. At the same time, DFAT First Assistant Secretary, Consular and Crisis Management Division, Andrew Todd argued that Assange should hand himself over to U.K. authorities, despite being reminded that the potential exists for Assange to be extradited.
The same message permeated throughout a Senate hearing just last week where Larsen, Todd, and former Minister of Defence, Senator Marise Ann Payne, who is currently serving as the Minister for Foreign Affairs, argued that Assange is not being arbitrarily detained; he can leave the embassy whenever he wants (and that he should leave); they are not aware of any U.S. charges against him; and that they are in no position to interfere in his legal matters. So, despite being fully aware that Assange will likely be extradited to the U.S. to face the Trump administration’s persecution of journalists and America’s long-reaching arm of the law, his home country is essentially pushing for that very outcome.
Furthermore, during the October 25th hearing, Todd admitted that he wasn’t aware of «any discussion about a pathway» to bring Assange home; and just last week, Larsen couldn’t answer whether or not the government had sought assurances that an extradition notice doesn’t exist. It’s not surprising that the Australian government doesn’t want to show its hand but, despite its best efforts, WikiLeaks has been happy to do it for them.
In a December 1, 2010 Stratfor email released by WikiLeaks, Stratfor employee Lena Bell wrote:
Basic fact is that any move to arrest the guy (assuming they get an indictment for him) would require that a friendly government do it and then extradite him. Nick Miller told me the Australians have already offered to do this, as Assange is an Australian citizen, and Australia is the Canada of the southern hemisphere when it comes to its relations with the U.S.»
If this information is true, it shows that after the AFP had already found that Assange had broken no laws, the Australian government was willing to conjure up charges in order to hand him over to the United States.
Just yesterday The New York Times reported that Chelsea Manning has received a subpoena to testify before a grand jury. Although they reported that it’s unknown what prosecutors want to ask her, the subpoena was issued in the Eastern District of Virginia — the same district where a secret grand jury allegedly issued a sealed indictment for Assange, as well as where a cut-and-paste error last year inadvertently revealed Assange’s name in filed court documents, setting off alarm bells that indeed the U.S. had secretly charged the Australian journalist and publisher.
According to the Times article, “there are multiple reasons to believe that the subpoena is related to the investigation of Mr. Assange,” and there have been indications prosecutors want to talk to her about pertinent past statements that Manning has made. Additionally, according to Julian Assange’s 2013 affidavit, the case number on Manning’s subpoena, “10GJ3793,” matches the grand jury’s case number in the Eastern District of Virginia. More documents on the case can be found through web.archive.org.
It seems likely that the Trump administration is reexamining options to charge Assange for allegedly taking an active role in helping Manning procure documents that she then leaked to WikiLeaks.
So, with Australia’s long-standing history of denying any evidence that suggests the U.S. has charged their own citizen; taking a backseat to historical attacks against a journalist; encouraging their own citizen to risk extradition to the United States; failing to do all that it can to help Assange get home; and engaging in standardized rhetoric while taking a passive stance in Assange’s case, in order to remain in the employ of the United States — one has to wonder why Australia reissued Assange a passport and whether it’s really safe for him to go home at all.
Top Photo | Watched by the media WikiLeaks founder Julian Assange looks out from the balcony of the Ecuadorian embassy prior to speaking, in London, May 19, 2017. Matt Dunham | AP
jimmysllama is an independent researcher and writer who provides balanced, critical analysis with a focus on the Boston bombings, Magnitsky Act, and WikiLeaks. She is currently trying to stay warm in the Midwest. You can read more of her work at jimmysllama.com and find her on Twitter at @jimmysllama.