Wednesday, April 03, 2024

DEMOCRATIC SOCIALSTS OF AMERICA

Conflict Could Upend DSA’s Big Tent—or Steady It

To preserve DSA’s unique political dynamism, its factions will need to retreat from scorched-earth competition and move towards generative conflict.
March 30, 2024
Source: Convergence




I believe in DSA. When Listen To Michigan’s “Vote Uncommitted” campaign was seeking organizational allies to donate infrastructure, volunteers, and staff time, every other major left-progressive organization in Michigan had to keep their involvement behind the scenes and off the record. DSA, on the other hand, was able to take the leap wholeheartedly. There really is a “DSA difference” when it comes to taking challenging and independent political positions.

I believe in the value of conflict within DSA. I used to think it was all a big dumpster fire, but I’ve come to understand it differently. Unlike a lot of staff-directed movement NGOs, DSA has a truly democratic governance structure that determines the direction of the organization.

When a member is frustrated with DSA, they have clear political channels through which to change it, or at least try. The organization belongs to its members. That’s why DSA survived the challenging period of 2020-2023—Bernie’s defeat, the pandemic, a new terrain under Biden and ensuing re-evaluation on the Left—with only a 30% membership melt, lower than many progressive movement groups which sharply peaked in the Trump era.

Instead of a dumpster fire, I started to think of DSA as a shield volcano, always oozing with lava and billowing with the smoke of each new conflict, but all the while: growing, developing.

In this metaphor, distributed movement groups and “digital parties” of the 2010s turned out to be like cone volcanoes—proud, tall, impressive, but quick to blow their top like Mt St Helens. Political conflict was suppressed, and when it finally arrived, it was destructive to organizations.

While DSA is not the only US left organization possessing a robust member democracy, it is the only one that openly contains a big tent of political ideologies spanning from social democratic reformers to revolutionary communists. Political caucuses give coherence and voice to different ideological positions within the organization; they make up the poles of the big tent. DSA’s big tent and democratic process results in a dynamic and engaging political culture which, at its best, is uncommonly capable of surfacing and digesting the biggest strategic debates of the day.

However, there are signs that the pattern of conflict could be turning toxic and negative-sum. The lava flow of conflict is widening, and the big tent is wobbling. If conflict is not channeled and directed more effectively, it will consume us all, and an important institution of the US Left will be lost.

Who shares DSA’s big tent?


Is DSA the left pole of the Democratic Party, or a new independent party in waiting? Is it an electoral-legislative force whose power base is strongest in statehouses, or a mass movement organization whose power base is strongest in the streets and the shop floor? Is its horizon to win a better deal for the US working class, or to pull up the US Constitution and global class structure from the roots? Yes! Maybe! We’re not sure! You can find members of DSA who would answer yes to any of the above options, and who would vehemently object to others.

Broadly speaking (and to use some highly imperfect labels), there is a “DSA left” which angles towards dreams of revolution, extra-parliamentary power, and a break from the Democrats, and a “DSA right” which angles towards ambitious but plausibly achievable reforms, electoral power, and tactical coalition with the Democrats. The right held a narrow governing majority in the last two-year term of the National Political Committee (NPC); since August 2023’s convention, the left has held a narrow majority.


As counter-intuitive as it may seem, I contend that the tension between these positions, and the ambiguity about DSA’s ultimate strategy and shape, is a highly positive thing for the organization. Two poles, leaning in opposite directions, pull tension on the canvas and create a big tent under which many can coexist. While some in the big tent are unambiguous partisans of the idealized right or left position, many others hold sympathies to both, and healthy uncertainty about how things will and should develop.

Personally, my daily political practice is more aligned with that of the DSA right, but I find some ideological affinities with the DSA left. I think the right is usually correct in its conjunctural analysis, while the left often raises good points about structural analysis. I think the right is more advanced in its current practice of mass politics, while the left is asking more interesting questions about what may be required in the future (even if I often find their answers lacking).

In short, my political practice is reformist and social democratic, but only for the lack of an actionable revolutionary pathway in the present conjuncture. Were we to enter more revolutionary times, I would hope to find myself among the revolutionaries. In the language of options theory, one might say that I hold an active option on reform, and a presently non-exercisable option on revolution.

The special thing about DSA is that it doesn’t make me choose among the uncertain points in my political views now, or between my current practice and my future practice. It contains all of the above.

Making space for growth as well as debate


In addition to creating a forum for constructive debate among various political tendencies, the big tent benefits membership retention for the simple reason that few of us arrive to any organization as fully developed political subjects. Our views change—from revolutionary, to reformist, and many gradations in between. An organization that is exclusively revolutionary, or exclusively reformist, will lose members along the process of their political education. DSA at its best has the capacity to hold people along the journey.

While each wing of DSA claims to possess the silent majority of organizational members, the recent track record suggests that most members hold sympathies to both positions, like I do. This doesn’t reflect a lack of political development by the membership—it reflects the fact that the matrix of left and right positions provides a variety of strategic options for the future course of DSA. In an uncertain and highly volatile political environment, it’s rational to maintain multiple options for the future course of a political organization. In fact, to prematurely close out those options would be the unstrategic move.

Unfortunately, closing out either the reformist, or the revolutionary option, is what the emerging pattern of conflict in DSA threatens to do. It appears that the most zealous partisans of the “DSA left” and “DSA right” are each aiming to discredit and vanquish each other, prioritizing victory for their political line over the value of the big tent. If each pole holding up the big tent cannot refrain from undermining the other, the tent will topple and the organization as a whole will lose out.
Budget debate turns ugly

The present budget negotiation on the DSA National Political Committee (NPC) is the latest example of how factional conflict is turning corrosive and creating a negative-sum spiral for the organization.

Since the present NPC was elected in August, there has been a known disagreement between the narrow NPC majority and minority: What to do about a structural budget deficit of over a million dollars. Members of the “left” majority (led by Red Star Caucus, Marxist Unity Group, and Bread & Roses) had a known preference for paid elected officers over hired staff, and a wariness about the potential of becoming top-heavy through overstaffing at the expense of program costs. The “right” minority (Socialist Majority Caucus and Groundwork), vehemently disagreed and sought to defend staffing levels by cutting everywhere else, plus taking a bullish stance on new funding prospects.

With the stage set thus, the majority proceeded to act imperiously, while the minority acted moralistically.

The majority engaged in procedural maneuvering to limit an open discussion of staff cuts from a month-long consensus budgeting process among the full NPC. Instead, they held their cards close before dropping a proposal for up to 12 layoffs–over one-third of the staff–and voting it through several days later. This seems to have been their idea of taking decisive action to right-size the staff; upon questioning they could not credibly answer why this was the correct number of layoffs, and in fact it turned out to be based on outdated financial data. The majority also seems to be blundering its way through dealing with the staff union, first failing to set up a meeting, then doing so, then claiming to need to approve maximal layoffs in order to negotiate. They give the appearance of wishing the staff union away, which is no way to win the collaboration of staff through an inevitably difficult transition.

The minority, meanwhile, began the process by staking out an unreachable position for absolutely zero staff cuts, and vowed to cut every other item before touching personnel. Having set themselves up to be aghast at any layoffs whatsoever, the proposed cut of 12 ignited a furor. They took up these proposed layoffs as a cudgel against the majority and mounted an internal campaign against the layoff authorization vote. One of the primary arguments used was the moralistic and patently absurd claim that to conduct any layoffs in a budget crunch would make DSA indistinguishable from a capitalist firm.

Seven months into the new NPC term, what began as an unenviable challenge became an acute crisis, through the failure of the competing factions to find a pragmatic middle ground in a timely manner. Months ago, a united NPC commitment to fewer (but nonzero) layoffs plus a united fundraising push could have made the difference. This could have been achieved had the right caucuses been willing to entertain some layoffs, the left caucuses been more willing to participate in the consensus budget process, and each side more invested in finding middle ground. Instead each side acted to polarize the situation.
New issue, same pattern of negative-sum conflict

This crisis is concerning on its own, but it’s even more concerning for its resemblance, with the majority and minority positions reversed, to the largest crisis from the last NPC term, the “Bowman affair.” This suggests a pattern. We have, again, imperiousness by the majority and moralism by the minority, and an apparent preference by caucuses in both major camps to prolong and weaponize challenging issues for internal factional gain, rather than find a workable compromise and move forward with building DSA.

All in all, the appearance is increasingly of factions who genuinely hate each other, who can’t resist the ability to call each other nasty names, who are uninterested or incapable of finding mutually agreeable positions and would rather quit or expel the others. There is some evidence of good faith across factions by people banding together to support the major fundraising drive, and surely there are some problem-solvers trying their best behind the scenes, but this is not the major signal.

When I raised the possibility to friends in the NPC minority caucuses that they may have misplayed their hands by staking out an absolute opposition to all layoffs and seeking a middle ground earlier could have been more constructive, I was told the following, in so many words: “There’s no chance of compromise with the majority and there never has been. All we can do is polarize the issue, raise hell and make sure that people remember this at the convention in August 2025.” Not everyone in the minority holds this view, of course, but the point remains that the actions of the major caucuses appear more aimed at advantage for their faction than at solving the dilemma at hand.

If it’s true that there is no chance of compromise between the left and right, then the big tent is well on its way to collapse. If scorched earth is the only path forward in DSA, the best-case outcome for any party is five years immersed in internal conflict, for the sake of controlling a smoldering and diminished pile of rubble in 2030.

But if dialogue and compromise are possible, behaving as if they aren’t is highly destructive and exactly the opposite of what everybody ought to be doing. The big tent is a tremendous benefit to DSA. Maintaining its dynamic tension over the long run requires compromises in the short run—and practicing generative rather than negative-sum conflict.

Towards generative conflict

In generative conflict, parties start from common values and interests, affirm as legitimate the interests of their counterparts, and consider “non-negotiables” in that light. It is not easy, and requires political commitment to execute. It also requires that elected leaders have the range and freedom to actually negotiate creatively with their counterparts, rather than being bound to positions established by their respective caucuses.

Generative conflict, at its best, achieves a synthesis from existing positions, transforms the participants, and replaces stale old debates with vital new ones. When dealing with the most divisive issues, the aim of the majority should not be to divide further by seeking a narrow and total victory, nor should the aim of the minority be to merely weaponize defeat for future political gain. The aim of all should be to find a workable accommodation for now, while raising the level of mutual understanding that will help us all later. Parties aim to persuade, not conquer, their internal adversaries, and are willing to be persuaded as well. This only works if they resist the temptation to dunk, bully, or purge their opponents from the arena.

In 2022 amidst the Bowman affair, Jack Suria Linares wrote a thoughtful piece in Convergence, arguing as do I in defense of the big tent, while pointing towards the need for more “programmatic unity,” which would require minority factions to exercise collective discipline to to follow the democratically established will of the majority. I agree that programmatic unity is a worthy goal, and that it requires more disciplined restraint on behalf of minority factions—an assignment that has now been failed by the DSA left and right in the last two NPC terms, respectively. I would build on Suria Linares by pointing out that reaching programmatic unity also requires more give from the elected majorities than we have seen over the last four years.

Can we really expect the full membership and their chapters to follow with complete discipline if every two years new NPC leadership attempts to enact an utter sea change of direction, despite pitched internal opposition? This would only be appropriate if a given faction has an overwhelming mandate for leadership, not the narrow majorities we have recently seen. My assessment is that the DSA membership is asking for steady leadership that draws on the best insights of left and right. Majorities should aim to do more than merely imposing their own political line. They should be trying to find the line that is best suited at any given time for the organization as a whole.

To adopt this posture in DSA is not “all ideas are valid” liberalism, nor is it a retreat from political-ideological struggle. Rather, it’s about balancing struggle and unity, internal deliberation and external action, in due proportion. It’s about recognizing the strategic value of DSA’s big tent, and learning how to preserve it today, in order to struggle and build together tomorrow.


'A Failure of Vision': Michael Harrington and the Limits of Democratic Socialism' by Doug Greene

Zer0 Books and Repeater Media
Feb 18, 2022

Interviewer Daniel Tutt speaks with author Doug Greene about his upcoming book. Should socialists cooperate with the Democratic Party? What does the ideas and vision of the founder of the largest socialist organization in America, the DSA, inform the "common sense" of America's contemporary left?\\



 


Jacobin.com

https://jacobin.com/2019/07/michael-harrington-dsa-dsoc-democratic-socialism

Jul 31, 2019 ... As the Democratic Socialists of America (DSA) — newly grown to more than sixty thousand members — prepare to meet in Atlanta this weekend, it ...

Leftvoice.org

https://www.leftvoice.org/michael-harringtons-failure-of-vision

Jul 25, 2021 ... Michael Harrington was the most important American democratic socialist of the latter half of the 20th century. He was the author of 14 books on ...


En.wikipedia.org

https://en.wikipedia.org/wiki/Michael_Harrington

Edward Michael Harrington Jr. (February 24, 1928 – July 31, 1989) was an American democratic socialist. As a writer, he was best known as the author of The ...


Jacobin.com

https://jacobin.com/2019/07/michael-harrington-dsa-democratic-socialism

Jul 31, 2019 ... Democratic Socialists of America founder Michael Harrington, who died thirty years ago today, was a beacon of humanity, decency, ..


Dissentmagazine.org

https://www.dissentmagazine.org/wp-content/files_mf/1426020673WhatSocialistsWouldDoinAmericaIfTheyCould.pdf

In America there is, of course, no major socialist movement, yet. But this society is more and more running up against the inherent limits of the welfare state.


Cloverleaflocal.org

https://www.cloverleaflocal.org/Downloads/Chapter%2021%20Michael%20Harrington%20from%20Socialism%20Past%20and%20Present.pdf

People speak of socialism. We should speak of socialisms. There is an amnesia about the socialist tradition that abandons entire definitions of that ideal ...


Muse.jhu.edu

https://muse.jhu.edu/pub/56/article/728101/summary

Jun 26, 2019 ... Download PDF. full access Socialism Beyond Equality ... Michael Harrington and Wilbur H. Ferry ... Download PDF. Share. Facebook Twitter Email Print ...

Newpol.org

https://newpol.org/michael-harrington-and-twilight-capitalism/?print=pdf

Jul 18, 2009 ... Michael Harrington is rarely taken seriously as a Marxist thinker — indeed, his Marxism is rarely taken seriously at all, by either his ...

Digitalcommons.sacredheart.edu

https://digitalcommons.sacredheart.edu/cgi/viewcontent.cgi?article=1010&context=shureview

In the later 1950s Harrington criss-crossed the country as a student organizer (the ``oldest young socialist in America,'' he started to call himself after ...

Deepblue.lib.umich.edu

https://deepblue.lib.umich.edu/bitstream/handle/2027.42/51230/464.pdf;sequence=1

The most prominent liberal-democratic socialists in the United States are associated with Dissent magazine, notably the late Michael Harrington; see, for ...

Twitter.com

https://twitter.com/i/events/1493385608521154560

Socialism: Past and Future is prominent thinker Michael Harrington?s final contribution: a thoughtful, intelligent, and compassionate treatise on the role ...

Scholarlycommons.law.hofstra.edu

https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1189&context=hlr

For a fluent statement of the philosophy of social democracy, see, e.g., the preface to E. BERNSTEIN, EVOLUTIONARY SOCIALISM xxiii-xxxii (1961). 4. This is "the ...

Radicalteacher.library.pitt.edu

http://radicalteacher.library.pitt.edu/ojs/radicalteacher/article/download/1187/851

Harrington, Michael. Socialism: Past and Future. NY: Arcade. Publishing, 2011. Howe, Irving (Ed.). Essential Works of Socialism. New Haven. & London: Yale UP ...


Remembering Michael Harrington Feb 23, 2015 ... Michael Harrington was one of the U.S.'s leading socialists and a founder of Democratic Socialists of America. On the anniversary of his ...

Chile “The working classes have dropped out”

March 31, 2024
Source: Pressenza




As head of state since March 2022, elected with the hope of reorienting his country on the path of progressivism, Chile’s young president Gabriel Boric (38) seems rather to have refocused his politics, unable to compete with the conservative bloc or to unite the left around his government. At mid-term, Boric has not yet been able to carry out the expected far-reaching reforms. Luis Reygada interviewed Franck Gaudichaud, a specialist in Latin America, for the French newspaper L’Humanité.

At mid-term, what is the balance sheet of the man who promised to “reopen the main avenues” of socialist President Salvador Allende?

Gabriel Boric came to power embodying the hope of a post-neoliberal turn, in a very particular context since it followed the social explosion of 2019. He was driven by very strong demands, particularly social ones, and was at the head of a coalition including parties much further to the left than he was (such as the Chilean Communist Party) and fundamentally critical of the twenty years of government in the post-dictatorship period, the Concertation (between 1990 and 2010), marked by compromises, even neoliberal management of power by left-wing governments during this period.

Boric thus arrived with promises of profound reforms in a country where the private sector represented the structuring base of society, with a stranglehold on broad and largely deregulated sectors (education, health, pensions and so on). In general, then, there was the hope of a “new Chile” in which the public would succeed in regaining the upper hand over market forces that Boric had hinted at. On all these aspects, the results are extremely disappointing.

Due to the lack of a majority in Congress?

Yes, but that’s not all. The government is not in a position of strength within the institutions, so it has to negotiate constantly and has ended up governing from the “extreme centre,” including the reintegration of central figures of the Socialist Party into power. The president was not able to take advantage of the honeymoon of the first six months of his term: he staked everything on the approval of the first draft of the constitution to consolidate a political dynamic with a progressive orientation. Its rejection (by 62%, in September 2022 – editor’s note) was a cold shower. This defeat hurt the left as a whole and the social movements, which are now struggling after a long and rather chaotic electoral cycle that led to a second constituent process, dominated by the far right. In the end, this second draft of the constitution was also rejected – by more than 55% of the voters. The government appeared to be neutralized, unable to regain the political initiative.

In addition, the lack of capacity to mobilize social bases and social movements means that the government does not count on a broad and structured support that will allow it to compete with opposition forces. Even less to challenge the Chilean oligarchy, which can count on the most conservative and traditional parties to represent its interests.

Still, progress has been made, and polls give the president an approval rating of between 26 and 30 percent?

Absolutely, which is more than its predecessors. After two years, he can still count on a base, and it is undeniable that he has a certain foothold among the progressive middle classes with university degrees. But the working classes have dropped out.

There has been progress in the social field (reduction of the working week to forty hours, but with new flexibilizations of work, increase in minimum wages, easier access to free primary healthcare and so on) but the major structural reforms (especially fiscal reforms) have not been able to see the light of day, and the dominant framework remains totally capitalist and dominated by the same oligarchy. The disappointment is very great and strengthens the far right.

A rise also favoured by an unfavourable security context, with an increase in crime?

It is true that, in about six years, Chile has seen a doubling of its rate of the most violent crimes, with a clear increase in the activity of groups linked to drug cartels (such as the Venezuelan cartel called “El tren de Aragua”). This violence, sometimes sadly spectacular, has a great impact on the working and middle classes. However, the figures show a slight improvement in recent months, and we are faced with another problem that is difficult to overcome, sharpened by the ability of the mainstream media to impose security issues in the public debate, from an angle unfavourable to the left.

However, Boric’s response to the problem of cartel violence has also disappointed many of his own people. The reform of the Carabinieri Corps, which has been responsible for serious human rights violations, particularly in 2019, has never taken place. Boric had always refused to militarize the issue of law and order, but this has now been done, in the context of the fight against crime, but also in the conflict with the Mapuche people in the south of the country. There is a real public policy problem here regarding an issue that is much easier to manage for the far right, which obviously advocates a militarization at all costs, supported by a xenophobic and racist discourse.

Are we a long way from the “radical left” president that the right likes to portray?

President Boric has always shown himself to be willing to engage in dialogue, even to seek to create a certain national unity, as was seen during the commemoration of the fiftieth anniversary of the 1973 coup d’état. This strategy does not pay off when we are dealing with a right that does not want it, that continues to claim – at least in part – the legacy of the dictatorship, that systematically opposes any compromise and seeks, on the contrary, to permanently “hysterise” any political debate, for example by pointing the finger at the left wing of the government in a country where virulent anti-communism remains present. The recent accidental death of ex-president Sebastian Piñera, one of those responsible for the repression of the 2019 revolt, and the way in which Boric has nevertheless put forward his “republican” profile, has also surprised or even shocked part of his activist base.

In fact, Boric has made many symbolic gestures that have shown an evolution of his ideological positioning, to the point of recently claiming the legacy of the Christian Democrat President Patricio Aylwin (1990-1994), a major figure of the transition era in the 1990s.

Boric had, however, constructed himself politically in opposition to this historical period. To date, we can say that his mandate is more in line with what the transition period and its “consensus” represented. Fifty years after the coup, if we have to make a comparison, it is with Michelle Bachelet and her administration rather than that of the Popular Unity government of the 1970s.

Translated by International Viewpoint from l’Humanité
Julian Assange’s Basic Press Freedoms Are Still in Danger

In granting Julian Assange only the most limited appeal rights, the UK High Court has deliberately closed its eyes to the press freedom issues at stake and shown a grotesque indifference to Assange’s basic human rights.
March 31, 2024
Source: Jacobin


Julian Assange, 2014. Cancillería del Ecuador, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons

On March 26, 2022, the UK High Court issued a decision about whether journalist Julian Assange could appeal his extradition to the United States. The United States is seeking to put the WikiLeaks founder and Australian journalist on trial for exposing US war crimes and abuses of power. After a nearly five-year legal process, during which a UK judge blocked Assange’s extradition only for a higher court to reverse, the UK High Court in February held two days of hearings on whether Assange had the right to appeal his extradition on a myriad of grounds, including press freedom and free expression concerns. Had the court rejected Assange’s right to appeal, it would have foreclosed any further options for the journalist to fight his extradition before the UK judiciary.

During two days of hearings in February, the British judges presiding over the case seemed to express concern about the possibility that the United States could argue Assange lacked First Amendment rights as a foreign national and the United States’ lack of assurances that it would not seek the death penalty against him. As a result, unsurprisingly, they granted Assange the right to appeal based on these issues.

While the UK High Court has halted Assange’s extradition for now, there is grave cause for alarm. Assange’s lawyers sought to appeal the extradition on nine separate grounds. The UK High Court granted limited appeal rights on three very narrow grounds. In doing so, it dismissed the bulk of Assange’s serious free expression arguments.

It is these concerns that have led press freedom and human rights groups, mainstream newspapers, and even the United Nations special rapporteur on freedom of expression to oppose Assange’s prosecution. In spite of the global outcry about how this case imperils press freedom rights, the UK High Court seemed unable or unwilling to recognize the grave press freedom issues at stake.

On top of that, the court has allowed the United States to potentially sidestep an appeal altogether if it offers assurances that it will not seek the death penalty against Assange or deny him First Amendment rights based on his nationality. This would be the second time in this convoluted legal process that the United States has been allowed to rescue its defective extradition request by granting assurances.

The worst-case scenario for Assange has not yet come true. But ultimately the court’s ruling is a grim one for press freedom.
Security and Speech

Two of the grounds of appeal granted to Assange center on concerns that Assange could be denied First Amendment rights because he is a foreign national. Such a situation would both see Assange subjected to prejudice based on his nationality and deprived of any free expression rights. This fear was not concocted out of thin air. It is based on the statements the lead US prosecutor voluntarily submitted to the UK judiciary.

Throughout the extradition proceeding, US Attorney Gordon Kromberg, the lead prosecutor in the case, has provided the court with a number of sworn declarations. Kromberg is a notorious figure. He has been accused of politically motivated prosecutions and bias against Muslims. In addition to leading the Assange prosecution, he also prosecuted drone whistleblower Daniel Hale. I was present in court for Hale’s sentencing, and Kromberg’s animosity for the courageous whistleblower was clear: at one point, Kromberg compared Hale to a heroin dealer.

The goal of Kromberg’s declarations is to show that Assange’s case is not political, and that Assange would be treated fairly in a US court. To illustrate this point, in a June 2020 declaration, Kromberg argued that if Assange were to be extradited to the United States, he would have the opportunity to challenge the indictment before “independent federal judges.” Kromberg preemptively listed out the types of challenges Assange and his defense team may make. They could argue, according to Kromberg, that Assange was the victim of selective prosecution, that his conduct was protected by the First Amendment, and that the Espionage Act is unconstitutionally vague.

As the lead prosecutor in this and other Espionage Act cases, Kromberg wanted to make clear that “the United States has arguments against these potential challenges to the superseding indictment, and does not believe that they would have any merit; otherwise, it would not have proceeded with the charges.” One such defense? Kromberg wrote, “Concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information”

The intent of Kromberg’s declaration was to show how Assange would receive fair treatment in the United States, thus paving the way for his extradition. By stating the US government might attempt to deprive him of fundamental human rights protections on the basis that he wasn’t a US citizen, the veteran national security prosecutor achieved the opposite result.

The UK Court granted Assange two separate potential points of appeal based on Kromberg’s blunder. First, Assange can appeal on the grounds that he would be subjected to prejudicial treatment as a foreign national. Second, if the First Amendment may not apply to Assange, Assange can appeal the extradition on the basis that it violates the Article 10 of the European Convention on Human Rights guarantee of free expression.

When it comes to Article 10’s right to free expression, Assange’s defense proffered a much wider, more robust range of arguments. They argued that Assange exposed war crimes and faces prosecution for doing so. Under European human rights law, they also argued, Chelsea Manning is a whistleblower, and those who expose state criminality deserve protections.

Assange was only granted the right to appeal based on Article 10 in relation to Kromberg’s comments. When it comes to the broad issue of whether prosecuting a journalist for reporting on war crimes revealed by a whistleblower is a flagrant violation of free expression rights, the UK High Court denied Assange’s right to appeal. In doing so, it displayed a shocking contempt for journalism.

The court argued that the European Court of Human Rights rulings “do not support the proposition advanced by the applicant that whistle-blowers or journalists have an immunity from prosecution in respect of criminal conduct in the course of journalistic activities.” This statement is, of course, at face value, true. Yet saying a journalist cannot commit crimes is different than criminalizing journalism itself.

The UK High Court seems to find little about the Assange prosecution troubling from a free expression perspective. Assange faces eighteen felony counts. Seventeen of the counts were brought under the Espionage Act and concern information given to WikiLeaks by whistleblower Manning about war crimes and abuses of power. Press freedom and human rights groups have been universal in their rejection of the Espionage Act charges.

Yet according to the UK High Court, only three of the charges brought against Assange “directly concern freedom of expression.” The remaining fifteen allegations “are of what may be described as ordinary criminal offences.” Of the charges where the court found a free expression nexus — publishing the Iraq and Afghanistan significant activity reports and the State Department cables — the Court argued that since these documents contained the names of individuals who shared information with the US government, there was no strong public interest in publishing them.

The UK High Court accepted, based on declarations from Kromberg, that in prosecuting Assange for three of the most consequential and groundbreaking publications about US foreign policy in history — the Afghan War Diary, the Iraq War Logs, and Cablegate — the United States is really pursuing a narrow interest in protecting the safety of foreigners who share information with the United States.

This analysis is glaringly wrong for a number of reasons. These publications, which major newspapers around the world participated in, absolutely were in the public interest. There is no evidence from anyone, including the US military, that any harm was done to anyone as a result of these publications, which were clearly in the public interest.

And Assange and WikiLeaks were far from reckless. Multiple media partners testified during the initial extradition hearing about WikiLeaks’s stringent redaction and larger information security policies. John Goetz, an investigative journalist who represented Der Spiegel in their media partnership with WikiLeaks, explained that while working on the Afghan War Diary, Assange agreed to vet documents for their potential to cause harm to individuals. WikiLeaks delayed the release of fifteen thousand pages of documents as part of a harm minimization process. Goetz described the security measures taken as the most stringent he ever encountered as a journalist.

When it came to the Iraq War Logs, WikiLeaks took even more stringent precautions to redact the names of informants. John Sloboda of the Iraq Body Count testified during the original extradition hearing how his organization developed a computer program for WikiLeaks to redact informants’ names in the four hundred thousand pages of documents. Wikileaks were so insistent on redactions, it annoyed their partners in the mainstream media, who were upset it was slowing down publications. Another WikiLeaks media partner, Italian investigative journalist Stefania Maurizi, also testified that the precautions were the strictest she had ever encountered as a journalist, noting that not even her colleagues working on stories about the Italian mafia had ever adopted such strict security protocols.

By point of historical comparison, the copies of the Pentagon Papers given by Daniel Ellsberg to the media did contain unredacted names of intelligence sources and even a CIA officer. Ellsberg believed — correctly — that the public interest in releasing the Pentagon Papers outweighed these concerns.

When a breakdown in security occurred, it was not WikiLeaks but their media partners who caused it. With the State Department documents, WikiLeaks continued its policy of strict redactions to protect informants and tight information security. A Guardian reporter published the password to the encrypted files as a chapter title in his book. This set off a series of convoluted events whereby individuals online were able to access the entire document set. Assange and WikiLeaks notified the State Department, but its officials showed no interest in engaging with him.

Only after other websites published the complete, unredacted State Department cables did WikiLeaks follow suit. None of these publishers have been indicted under the Espionage Act, even though the editor of Cryptome, the first site to publish the unredacted cables, has taken the unusual step of asking the government to indict him. If the government was concerned solely with informants’ names, it would have pursued those who first published them.

The court found that because the US First Amendment so closely resembles Article 10 of the European Convention of Human Rights that its existence and Assange’s ability to rely on it means Assange’s extradition doesn’t violate Article 10. This, of course, depends on the United States not arguing Assange has no First Amendment rights.

On other political expression grounds, the High Court also denied Assange the right to appeal on the basis that he was persecuted for his political opinions or that he was being extradited for a political offense. The US-UK Extradition treaty bars extradition for political offenses, but a 2003 UK extradition law omits the language. According to the High Court that means judges cannot weigh the issue. By this logic, a judge must order an extradition that clearly contravenes the language of the treaty.
Attempted Murder

The other issue that most alarmed the judges during February’s hearings was the lack of death penalty assurances. None of the charges against Assange carry the death penalty. Although it is not impossible that the United States could pursue new death penalty charges, it is a very remote possibility. During February’s hearing, Assange’s defense outlined several scenarios under which the United States could pursue death penalty charges. When British prosecutors, who under UK extradition law represent the United States in court during extradition proceedings, were asked about this, they asserted the defense’s theories were correct. They further stated that under such a circumstance, the UK government would be powerless to stop the United States.

UK law forbids the government from extraditing someone if they might face the death penalty. The law here is clear-cut. As a result, it is unsurprising that the High Court granted Assange the right to appeal on the death penalty.

While the Court showed concern about the death penalty, it was shockingly indifferent to the US government’s extrajudicial plots on Assange’s life. The High Court expressly prohibited Assange from raising fresh evidence about CIA plots to assassinate or kidnap him during a potential appeal. During the original extradition hearing, the court heard from multiple witnesses from Spanish security contractor UC Global. The witnesses detailed how the company spied on Assange and plotted to kidnap or poison him. In their belief, these actions were taken at the behest of the CIA. These allegations are the subject of a criminal investigation in Spain.

Since the original hearing, Yahoo! News reported on the existence of CIA plots against Assange, including how the CIA considered (but ruled out) assassinating Assange. Whereas the hearing testimony had come from UC Global employees, the Yahoo! News report was based on insiders within the US government.

Assange’s defense has correctly asserted that this is further proof of the assassination plot against him. The UK High Court doesn’t reject this; it just doesn’t care. Their reasoning for denying fresh evidence is precisely because this “fresh evidence is similar to the evidence that was before the judge.” The judges admit they find the evidence presented credible, and that it “is of the utmost seriousness.”

If the plot to assassinate Assange was “connected to his extradition,” it would be a barrier to his extradition. Yet the High Court agreed that it wasn’t an issue, on the most absurd reasoning. “Extradition would result in him being lawfully in the custody of the United States authorities,” the Court wrote, “and the reasons (if they can be called that) for rendition or kidnap or assassination then fall away.” Thus it is okay to extradite Assange to the country that plotted to murder him.

And the judges do not want to hear anything more about the plots against him.
Empty Assurances

Although Assange has been granted leave to appeal on these extremely narrow grounds, an appeal might not happen. The High Court has granted leave to appeal only if the United States does not offer additional assurances. If the United States can guarantee that Assange “is permitted to rely on the First Amendment,” that the case against Assange is not prejudiced at trial (including sentencing) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen, and that the death penalty will not be imposed, then there will be no appeal, as long as the court finds the assurances satisfactory (Assange’s lawyers will have the right to challenge the assurances).

Most of the assurances are fairly straightforward. Given that the United States is not seeking the death penalty against Assange and has given similar assurances not to seek the death penalty against Edward Snowden in the past, it seems likely it will comply.

The most complicated assurance to parse is what it means for Assange to be able to “rely on the First Amendment.” In a criminal trial, the First Amendment would come into play in a number of ways. The defense can challenge a statute as either being unconstitutional in and of itself, or argue that although a statute itself is constitutional, its application in a specific case is unconstitutional. Often in criminal trials, the defense will mount both arguments: the statute is unconstitutional and should be struck down in its entirety, but even if it is constitutional, in this case it is being applied in an unconstitutional manner. In the US legal system, such questions are considered questions of law for a judge, not a jury, to decide.

Additionally, even if a statute or specific charge isn’t dismissed, the defense could argue that if the government wishes to convict Assange for pure speech, it must prove a high degree of intent. Such a requirement would be reflected in any instructions the judge gave the jury on what the government must prove beyond a reasonable doubt to convict Assange.

Unless a US trial takes place, we do not know what Assange’s lawyers will or will not argue. However, given the fact that Assange and his legal team have always stressed the press freedom and free expression issues with his prosecution, it doesn’t require clairvoyance or even a bold prediction to suggest that they will probably fight the prosecution on the basis of the First Amendment.

Assange is the first publisher indicted under the Espionage Act. But in the past, government insiders who acted as whistleblowers or journalists’ sources have been indicted. Citing the First Amendment, they have moved to have their charges dismissed outright or argued that the government must prove the defendant had a “a specific intent or evil purpose.” In all of these cases, courts have rejected these arguments, absurdly finding there are no First Amendment issues with prosecuting government employees who aided in news gathering.

As a publisher, not a whistleblower, Assange’s case is different. But the question arises: Would the UK High Court believe the aforementioned defendants were able to “rely” on the First Amendment? The government did not challenge whether the defendants had First Amendment rights, but instead argued the First Amendment did not protect their whistleblowing. They were able to raise First Amendment arguments, but judges rejected them.

In my reading of the UK High Court’s decision, it only requires a US court to take into account the First Amendment, not rule that it protects Assange’s clear journalistic activity. When denying the bulk of Assange’s free expression arguments, the court ruled the judges were making their findings on the assumption that, contrary to Kromberg’s declaration, Assange would have the same rights as a US citizen. Only when dealing with the potential that Assange would be granted no protections as a foreign national did the court find a problem. In his declaration, Kromberg mentioned other potential arguments that the government would raise in response to Assange’s potential First Amendment claims. Not only did the UK High Court not object to them, the judges mimicked them in their own dismal finding that the charges against Assange didn’t pose a threat to his free expression rights.

A cynical interpretation is that the UK High Court was ready and willing to rubber-stamp the persecution of a journalist for exposing war crimes. The unnecessary comments of Kromberg that the government may argue Assange lacked First Amendment rights as a foreign national and UK prosecutors’ bumbling replies to questions about the death penalty made it impossible for them to do so. Now, with the request for assurances, its judges are instructing United States and UK prosecutors on what they must say in order to make the extradition succeed.
Global Stakes

Any day Assange is granted another chance to fight for his life, his personal freedom, and the rights of press freedom and free expression is ultimately a good day. But the UK High Court’s decision, while not the worst scenario, is deeply disturbing. In granting Assange only the most limited appeal rights, they deliberately closed their eyes to the press freedom issues at stake and showed a grotesque indifference to Assange’s basic human rights. The invitation for the United States to grant assurances to prevent an appeal also is troubling.

There are dire human stakes to Assange’s case. But his case is ultimately bigger than just one person. Global press freedom rights are at stake. For those who do not wish to live in a world where journalists can be whisked across borders so that the governments whose crimes they exposed can put them on trial, the situation could not be more urgent.


UK Court Gives Biden Chance to Dodge Assange Appeal by “Assuring” His Rights

The WikiLeaks publisher could be extradited if the US gives “satisfactory assurances” of rights and no death penalty.

March 30, 2024
Source: Truthout


Image by Duncan Cumming via Flickr

WikiLeaks publisher Julian Assange is closer than ever to being extradited to the United States for trial on 17 counts under the Espionage Act and one count of conspiracy to commit computer intrusion over WikiLeaks’s 2010-2011 revelation of evidence of U.S. war crimes in Iraq, Afghanistan and Guantánamo Bay. He faces 175 years in prison.

“This is a signal to all of you that if you expose the interests that are driving war they will come after you, they will put you in prison and they will try to kill you,” said Stella Assange, Julian’s wife, of his prosecution.

On March 26, the United Kingdom Divisional Court denied Assange the opportunity to make most of his appellate arguments. But the two-judge panel of Justice Jeremy Johnson and Dame Victoria Sharp left open the possibility that Assange could appeal on three grounds. They found that Assange “has a real prospect of success” on the following issues: If extradited to the U.S., he will be denied the right to freedom of expression, will suffer discrimination because he’s not a U.S. citizen and could be sentenced to death.

Rather than simply allowing Assange to argue the three issues on appeal, however, the panel gave the Biden administration an out. If the U.S. provides the court with “satisfactory assurances” that Assange won’t be denied any of these rights, his extradition to the U.S. can proceed without an appeals hearing.

Stella Assange called the decision “astounding,” adding, “The court’s recognized that Julian has been exposed to flagrant denial of his freedom of expression rights, that he is being discriminated against on the basis of his nationality and that he remains exposed to the death penalty.”

At an earlier stage in this case, the U.S. gave the U.K. High Court “assurances” that Assange would be treated humanely if extradited. That caused the court to reverse the magistrate judge’s denial of extradition (which was based on the likelihood of suicide if Assange is held in harsh U.S. confinement). The High Court accepted those assurances at face value in spite of the U.S.’s history of reneging on similar assurances.

The current ruling, however, requires U.S. assurances to be “satisfactory” and the defense will have an opportunity to challenge them at a hearing.

“Mr. Assange will not, therefore, be extradited immediately,” the panel wrote, implying that if they had denied his appeal outright, the U.K. authorities would put him on a plane to the U.S. forthwith. They gave the U.S. three weeks to come forward with satisfactory assurances.

If the U.S. fails to provide any assurances, Assange will be granted a hearing on the three grounds. If the U.S. does give assurances, a hearing to decide whether they are satisfactory will occur on May 20.

“The Biden administration should not offer assurances. They should drop this shameful case that should never have been brought,” Stella Assange said.

These are the grounds the High Court will review if the U.S. fails to provide “satisfactory assurances”:
1. Extradition Would Violate Freedom of Expression Guaranteed by Article 10 of European Convention on Human Rights

Assange would argue at trial that his actions were protected by the First Amendment to the U.S. Constitution. “He contends that if he is given First Amendment rights, the prosecution will be stopped. The First Amendment is therefore of central importance to his defence,” the panel concluded.

The First Amendment provides “strong protection” to freedom of expression, similar to that provided by Article 10 of the European Convention on Human Rights, the panel noted. Article 10 (1) of the convention says, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

Gordon Kromberg, assistant U.S. attorney in the Eastern District of Virginia, where Assange’s trial would be held, said the prosecution might argue at trial that “foreign nationals are not entitled to protections under the First Amendment,” the panel noted. In 2017, then-CIA Director Mike Pompeo said that Assange “has no First Amendment freedoms” because “he is not a U.S. citizen.”

In addition, the U.S. Supreme Court ruled in the 2020 case of Agency for International Development v. Alliance for Open Society International that “it is long settled as a matter of American constitutional law that foreign citizens outside United States territory do not possess rights under the US Constitution.”

The panel wrote that if Assange “is not permitted to rely on the First Amendment, then it is arguable that his extradition would be incompatible with article 10 of the Convention.”

But even if the U.S. Department of Justice prosecutors give “satisfactory assurances” that Assange’s First Amendment rights would be protected, that is no guarantee. Prosecutors are part of the executive branch, which cannot bind the judicial branch due to the constitutional doctrine of separation of powers.

“The ruling reveals that the High Court does not understand the American system of government,” Stephen Rohde, who practiced First Amendment law for almost 50 years and writes extensively about the Assange case, told Truthout. “It only has before it the executive branch of the U.S. government. Whatever ‘satisfactory assurances’ the Department of Justice may give the High Court, they are not binding on the judicial branch.”

Moreover, Rohde said, “The High Court is obligated to uphold Assange’s rights to ‘freedom of expression’ under Article 10 of the European Convention on Human Rights, which protects Assange even if the U.S. courts refuse to do so. The only way to do that is to deny extradition.”
2. The U.K. Extradition Act Forbids Discrimination Based on Nationality

Julian Assange is an Australian citizen who would be tried in the U.S. if the Biden administration’s pursuit of extradition is successful.

Section 81(b) of the U.K. Extradition Act says that extradition is barred for an individual who “might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his … nationality.”

Due to the centrality of the First Amendment to Assange’s defense, the panel noted, “If he is not permitted to rely on the First Amendment because of his status as a foreign national, he will thereby be prejudiced (potentially very greatly prejudiced) by reason of his nationality.”
3. Extradition Is Barred by Inadequate Death Penalty Protection Required by the Extradition Act

Section 94 of the U.K. Extradition Act says, “The Secretary of State must not order a person’s extradition … if he could be, will be or has been sentenced to death for the offence” in the receiving state. That limitation does not apply if a written “assurance” that is “adequate” says “that a sentence of death- (a) will not be imposed, or (b) will not be carried out (if imposed).”

None of the charges that Assange is currently facing carry the death penalty. But if extradited to the U.S., he could be charged with aiding and abetting treason or espionage, both of which are capital offenses.

Ben Watson KC, secretary of state for the Home Department, admitted that:


a.) The facts alleged against [Assange] could sustain a charge of aiding or abetting treason, or espionage.

b.) If [Assange] is extradited, there is nothing to prevent a charge of aiding or abetting treason, or a charge of espionage, from being added to the indictment.

c.) The death penalty is available on conviction for aiding or abetting treason, or espionage.

d.) There are no arrangements in place to prevent the imposition of the death penalty.

e.) The existing assurance does not explicitly prevent the imposition of the death.

The panel noted that when former President Donald Trump was asked about WikiLeaks publishing the leaked documents, he said, “I think it was disgraceful…. I think there should be like a death penalty or something.” If Trump is reelected, he may seek to ensure that his Justice Department adds capital charges to the indictment.

In concluding that Assange could raise this issue on appeal subject to “satisfactory assurances,” the panel cited “the potential, on the facts, for capital charges to be laid; the calls for the imposition of the death penalty by leading politicians and other public figures; the fact that the Treaty does not preclude extradition for death penalty charges, and the fact that the existing assurance does not explicitly cover the death penalty.”
Appeal Grounds Denied by Panel

Remaining grounds for appeal that Assange requested were denied by the panel. They include prosecution for a political offense, prosecution based on political opinion; violation of right to a fair trial; violation of right to life; and violation of right to be free from torture and inhuman or degrading treatment or punishment. In addition, since no publisher has ever been prosecuted under the Espionage Act for publishing government secrets, Assange could not have known it was a crime.

The panel also ruled that Assange could not introduce new evidence adduced after the magistrate judge’s ruling. This includes a Yahoo News report detailing the CIA’s plan to kidnap and kill Assange when he was living under a grant of asylum in the Ecuadorian Embassy in London.

If the U.S. offers “satisfactory assurances” and extradition is ordered, Assange could appeal to the European Court of Human Rights and raise these additional issues as well.

Meanwhile, there is a possibility that instead of filing “assurances,” the Biden administration will opt to avoid the political pitfalls of Assange’s extradition to the U.S. and offer a plea bargain to end the case.



Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. A prominent scholar and lecturer, her books include Cowboy Republic: Six Ways the Bush Gang Has Defied the Law; and Drones and Targeted Killing: Legal, Moral and Geopolitical Issues She provides commentary for local, regional, national and international media and is co-host of “Law and Disorder” radio.