On Borrowed Time

by Robert Manne

  To tell the inside story of WikiLeaks without interviewing Assange or any of his loyal supporters, Gibney was forced to rely on some of the insiders who have either been dismissed from WikiLeaks, like the German Daniel Domscheit-Berg, or who have defected, like James Ball, the young Englishman. Assange is a charismatic leader of a besieged organisation. It cannot have been easy for Domscheit-Berg or Ball to part company with Assange gracefully or without guilt. For this reason, the danger of relying uncritically on such witnesses ought to have been obvious. The evidence of We Steal Secrets suggests that for Gibney it was not.

  Take the evidence of James Ball, who describes to Gibney his reaction to being asked by Assange to sign a non-disclosure agreement. “I found this a little awkward – being asked by a transparency organisation to sign exactly the kind of document used to silence whistleblowers around the world. It seemed pretty troubling and so I refused.” It is an apparently telling judgement. There are, however, problems with it. It is an oversimplification to call WikiLeaks a transparency organisation. WikiLeaks is based on the idea of seeking to expose corruption by guaranteeing its sources not transparency but absolute anonymity. This is one reason non-disclosure agreements might be needed. Nor is it reasonable to expect transparency from a tiny organisation under threat from an almighty state. Even more obviously, as Assange has proven, Ball did in fact sign a first non-disclosure agreement, on 23 November 2010. Ball also claims, damagingly, that Assange did not distinguish between donations to WikiLeaks and to his Swedish legal defence. “No one knows now whether money going to WikiLeaks is going to Julian or elsewhere.” As WikiLeaks shows in its annotations, donors were offered a clear choice. “You can help support Julian’s defence fund and/or contribute to WikiLeaks.” Donations were audited by a firm of accountants.

  Even more importantly, in the final minutes of the film, Gibney relies uncritically on the interpretative judgements of those insiders who have fallen out with Assange. It is Domscheit-Berg who argues that “WikiLeaks has become what it detests and what it actually tried to rid the world of”. And it is James Ball who identifies what is called “‘noble cause corruption’; essentially you do things which, if anyone else did [them], you would recognise aren’t okay … but because you know you’re a good guy, it’s different for you”. These statements, being partly defensive and self-justificatory, are hardly objective and authoritative.

  Assange’s spectacular fallings-out have not only been with former WikiLeaks insiders. Almost as bruising were those with some of his mainstream media partners at the New York Times and the Guardian. Gibney does not pretend to explain why these explosions occurred. He allows the Australian journalist Mark Davis to record the hypocrisy and condescension of the New York Times, which first published WikiLeaks’ material and then ridiculed Assange before abandoning him to his fate. More questionably, it is one of Assange’s most implacable enemies, Nick Davies of the Guardian, the hero of the News of the World phone-hacking scandal, who makes some of the film’s most damaging charges. On screen, Davies bristles with aggression towards Assange. He is the film’s most important witness regarding Assange’s supposed indifference to the fate of the Afghan sources named in the US war logs. In this dispute between Davies and Assange, the evidence is mixed. In We Steal Secrets Davies claims that Assange told him in a personal conversation that if Afghans were collaborators with the Americans they deserved to die. Assange has always denied using such words, though his defence relies upon the eyewitness testimony of a Der Spiegel journalist concerning a quite different occasion, a dinner conversation involving a second detested Guardian journalist, David Leigh. In another instance regarding the Afghan-indifference accusation, Assange is on firmer ground. Davies tells Gibney of his “amazement” when he heard Assange tell journalists at a press conference on 25 July 2010 about his harm minimisation strategy. “Julian had no harm minimisation in place.” The WikiLeaks annotations quote from an article published in the Guardian that very morning, in part written by Davies, which outlined clearly WikiLeaks’ strategy for harm minimisation. Almost everyone agrees that Assange’s first impulse – to publish the Afghan war logs unredacted – was wrong. But it was a lesson he learned and never consciously repeated.

  There are also legitimate questions about the film’s account of the Swedish sexual allegations. Some arise from the way Gibney has edited material from contemporary interviews with Assange. In one, Assange is shown to be saying: “I have never said this is a honey trap. I have never said it’s not a honey trap.” And shortly after: “There are powerful interests that have incentives to promote these smears.” Here is a fuller version of the interview Gibney draws upon:

  ASSANGE: I have also never criticised these women. We don’t know precisely what pressures they have been under, exactly. There are powerful interests that have incentives to promote these smears. That doesn’t mean that they got in there in the very beginning and fabricated them.

  INTERVIEWER: So you’re not suggesting this was a honey trap?

  ASSANGE: I have never said that this is a honey trap.

  INTERVIEWER: You don’t believe it?

  ASSANGE: I have never said it’s not a honey trap. I’m not accusing anyone until I have proof.

  The differences between the original interview and the comments seen on screen are subtle but significant. Gibney’s misleading edit underpins the scathing assessment by Davies that follows directly and which carries the film’s final interpretative weight: “What Julian did was to start the little snowball rolling down the hill, that this was some kind of conspiracy.” Davies is hardly an objective witness on this matter. Responsible for the first analysis in the British press of the leaked Swedish police report concerning the allegations, his competence and fair-mindedness were immediately challenged by Assange and his supporters. One of his most acerbic critics was Guy Rundle, in an article in the Monthly. Several months after its publication, a still-enraged Davies threw a glass of wine in Rundle’s face.

  Far more importantly, Gibney misleads his audience about the reason Assange has fought so fiercely to avoid extradition to Sweden. The interpretation he favours is best expressed by one of Assange’s Swedish accusers, Anna Ardin: “He has locked himself up to avoid coming to Sweden to answer a few pretty simple questions.” This is utterly unconvincing. There is direct evidence that the United States is delaying action until the conclusion of the Swedish cases. Indeed, Assange’s lawyers believe that US legal authorities are compelled to wait for decisions on both the request for extradition from Britain and the hearing in Sweden of possible charges before moving on Assange. Those interested can find their detailed reasoning in the tightly argued and cogent document “Extraditing Assange”. In these circumstances Assange is, to put it mildly, right to be cautious. One false move might earn him a lifetime in jail. In We Steal Secrets, Gibney breezily ignores all this. He claims rather that “members of Assange’s legal team admitted that it would be easier for the United States to extradite Assange from Britain”. At best, this is a vast oversimplification. Gibney relies here on an interview fragment from Baroness Helena Kennedy, who has since told Assange that she has been misrepresented.

  The wronged party in We Steal Secrets is Bradley Manning. Once more, however, there are problems about the way Gibney presents the crucial evidence. There are only two direct sources for Manning’s state of mind at the moment of his fateful decision to pass on to WikiLeaks hundreds of thousands of military and diplomatic documents: his confessional chat logs with Adrian Lamo, where the emphasis is on his crisis of gender identity, and his statement before the military court at Fort Meade on 28 February 2013, in which he outlines lucidly the political reasons for his disillusionment with his country’s behaviour and decision. Because Gibney relies exclusively on the confessional chat logs, his audience is led to believe that it was profound psychological breakdown rather than sincerely held political principle that best explains Manning’s motives. Although Assange and many of his supporters argue t
hat interest in Manning’s psychic state is prurient or irrelevant to Gibney’s story, and that Manning should be seen as nothing but a principled war crimes whistleblower, with Manning, at the moment of his critical decision, the personal and the political were self-evidently and inscrutably entangled. Nonetheless it seems wrong and puzzling for Gibney to omit the best evidence we have of Manning’s political motivation. Nor can Gibney argue that Manning’s testimony came too late to be included. One small detail in the film – Manning’s claim that he approached both the Washington Post and the New York Times before approaching WikiLeaks – proves that Gibney had read Manning’s statement to the court in time.

  At its conclusion, We Steal Secrets tries to drive a moral wedge between Julian Assange and Bradley Manning. James Ball suggests that Manning turned to his betrayer, Lamo, only because he was abandoned by WikiLeaks. This is simply untrue. In his statement to the court, Manning spoke about the many long and enjoyable conversations he had with his contact at WikiLeaks, whom he called “Nathaniel”. In this testimony Manning does not identify “Nathaniel”. The Lamo chat logs suggest that almost certainly he was Assange. Further to Ball, Assange’s most bitter enemy, Daniel Domscheit-Berg, offers a contrast between the situations facing Assange and Manning: “We must get away from this understanding that we see Julian as the saviour, as some noble guru, as some new hero or some new pop star or whatever that’s going to change all of it … Bradley Manning is the courageous guy. He is the one that took all the risk and, in the end, now is suffering.”

  In the moral economy of We Steal Secrets, Domscheit-Berg’s words come close to serving as a final judgement. They also involve several telling distortions. Assange and Manning have been loyal to each other throughout what is their mutual crisis. The risks facing Assange are very real, and if there is one quality in him that cannot possibly be doubted, it is his quite extraordinary courage.

  Shortly before this film was released, the New Yorker launched a whistleblower drop-box coded by another young electronic freedom fighter, Aaron Swartz, who in January 2013 took his life rather than face trial following a grand jury indictment for illegally downloading large numbers of academic articles. And, at the time of writing, the world learned that the American government had been secretly collecting the phone, email and text records of its citizenry, a practice that Al Gore described as “obscenely outrageous”. Julian Assange is the fearless and imaginative inventor of a political means by which individuals in the electronic age can expose the encroachment and corruption of state and corporate power. For this reason, he seems to me to deserve far more sympathy and credit than is found in Alex Gibney’s superficially impressive but ultimately myopic film.

  The Monthly, July 2013

  THE SNOWDEN FILES

  “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” the Fourth Amendment of the United States Constitution, adopted in 1792, proclaims. Veneration for the Constitution lies at the heart of American political culture. The inspiring story of Edward Snowden must remain elusive without an understanding of the power these words still possess for him and other citizens of the United States.

  Until the mid-1970s, the collection of intelligence about foreign powers inside the United States was unregulated by law. It was then discovered that under President Richard Nixon this power had been abused by the highly secretive National Security Agency (NSA), responsible for signals intelligence, which had helped other services to conduct their unlawful secret surveillance on American citizens. The Church Committee established by the Senate concluded that before 1973 the NSA had conducted surveillance of “individuals, groups and organizations involved in domestic antiwar and civil rights activities in an attempt to discover if there was ‘foreign influence’ over them”. In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA), which created the Foreign Intelligence Surveillance Court (also known as the FISA court). The purpose of both the Act and the Court was to ensure Fourth Amendment protections for American citizens concerning foreign intelligence collection. Inside the NSA, the lessons of the 1970s were well learned. By the late 1990s, during General Michael Hayden’s tenure as director, posters with the words of the Fourth Amendment were plastered over the walls of NSA headquarters at Fort Meade, Maryland. The eyes of the NSA looked only beyond American borders. Intelligence threats inside the United States were the responsibility of the FBI.

  The attacks of September 11, 2001 changed all that. A top secret 2009 NSA report explained the reason clearly: “Here is NSA standing at the border looking outward for foreign threats. There is the FBI looking within the US for domestic threats. But no one was looking at the foreign threats coming into the US. That was a huge gap that NSA wanted to cover.”

  Inside the NSA, one story was of particular significance. The agency had overheard telephone conversations between one of the September 11 terrorists, Khalid al-Mihdhar, and an al-Qaeda operational centre in Yemen. Because it looked only outward, it did not discover that the calls were coming from San Diego, California. September 11 seemed to prove that the future of the United States rested on the immediate discovery of the links between al-Qaeda’s leaders overseas and the hundreds of al-Qaeda cells supposedly inside the United States. The predominant trope was now the vital need to “connect the dots” between the foreign and the domestic elements of the al-Qaeda threat.

  Under the leadership of Vice-President Dick Cheney, the administration of George W. Bush gave the NSA the task of searching for al-Qaeda cells in the United States via a secret program of warrantless wiretapping that appeared to violate US statutory law, FISA and the Fourth Amendment. On 4 October 2001, the president signed an authorisation for a program of domestic electronic surveillance that before September 11 would have been regarded as obviously unlawful.

  Cheney turned to a deputy assistant attorney general, John Yoo, to provide some legal respectability. Yoo argued that the Constitution granted the president, as commander-in-chief, total authority in the conduct of war. No statutory law, like FISA, nor even the Fourth Amendment, could limit what the president might do to defend the United States in its war against al-Qaeda.

  Yoo’s revolutionary legal opinion was regarded as the most tightly protected state secret, shown to neither the director of the NSA nor the US deputy attorney general. Moreover, apart from those NSA operatives who volunteered to conduct warrantless wiretapping, knowledge of the program’s existence was restricted to a very select circle, including the chief judge of the FISA court (but not the other judges) and, at Hayden’s insistence, with the scandals of the 1970s in mind, the four members of Congress who led its Senate and House intelligence committees. At first, the program was regarded as a short-term measure at a time of “extraordinary emergency”. After the initial thirty days, however, the legal authority for the program was renewed time and time again.

  In early 2004, a conservative professor of law, Jack Goldsmith, newly appointed to the Department of Justice, cast his eye over the most recently drafted authorisation. He had never seen such a legal mess. He pointed out that one of the four kinds of surveillance measures proposed, concerning email metadata, would have been regarded by the FISA court as transparently unlawful. Goldsmith convinced the deputy attorney general, James Comey. In turn, Comey convinced both the attorney general, John Ashcroft, and the director of the FBI, Robert Mueller.

  Cheney was livid. Were thousands of American lives to be lost as a result of legal pedantry? By chance, as this battle was joined in March, Ashcroft fell dangerously ill. President Bush ordered his legal counsel, Alberto Gonzales, to go to Ashcroft’s hospital bed for his signature. Comey and Mueller sped to the hospital. Ashcroft, at death’s door, refused Gonzales’ request. Cheney was not yet defeated. He convince
d Bush to sign the authorisation without the signature of his attorney general. Virtually all the senior members of the Department of Justice, likely including even Ashcroft, were now ready to resign. Bush learned that in addition he would also lose his FBI director. Facing the near-certainty of impeachment hearings in an election year, he backed down. The authorisation was amended. Nonetheless, the program of warrantless wiretapping continued.

  Inside the NSA, someone cracked. Details of the entire post–September 11 program of secret domestic surveillance were leaked to the New York Times in the northern spring of 2004. The story was written. The White House begged the paper not to publish. Was it really willing to shoulder responsibility for another September 11 or for something even worse? As it turned out, it was not. Following the re-election of Bush in November 2004, the journalist who had received the leak, James Risen, decided that if his newspaper lacked the courage to publish, he would provide details in a book. Faced with the public exposure of its spinelessness, the New York Times eventually decided to ignore the pleas of the White House. On 15 December 2005, the public learned for the first time that Americans’ phone calls and emails had been tapped and read illegally for the past four years.