Homo Sacer

The news that the Home Secretary, Priti Patel, has approved the extradition of Julian Assange to the United States will not have come as a surprise to anyone. Despite the Conservative Party's historically late conversion to the cause of free speech, it clearly sees the WikiLeaks co-founder as on the wrong side in the all-enveloping culture war, and that's before you consider the likelihood of the government wilfully pissing-off the Americans at a time when it is still hopeful of a trade deal. There has been an equally predictable reaction among the British press, ranging from good riddance on the right to liberal outlets pleading the cause of free expression and conscience but largely going through the motions, as if their hearts aren't really in it. It's notable that the Guardian in particular is incapable of reporting on Assange without raking over his supposed misbehaviour in respect of the collapsed Swedish rape case and his breaking bail in order to seek refuge in the Ecuadorean embassy. As much as its sneering at celebrity libel cases such as Vardy vs Rooney, and tutting over the "abusive spectacle" of Depp vs Heard, its coverage of the Assange trials has revealed its prejudices, which since Alan Rusbridger's rapprochement with the security state have included giving the spooks the benefit of the doubt.

Lost in the noise is the original leak, which was clearly both an act of conscience by Chelsea Manning and a legitimate case of free expression and public interest journalism by WikiLeaks. The claims that it endangered US national security and the lives of its foreign informers have never stood up to scrutiny. Even veterans of the national security machine admit that the impact was modest and largely limited to embarrassment, not just of the US but of its often craven allies. The suggestion that intelligence sources in Iraq and Afghanistan were compromised has never been substantiated, though you could be certain the New York Times would have published evidence of the Taliban exacting revenge if they could find any. The truth is that while the cables were classified they were not top secret: they didn't involve the genuinely valuable intelligence assets. Most were simply background noise. Their value was that in aggregate they displayed an attitude of bullying contempt by the US towards its allies, which was hardly a shocking revelation. The pursuit of Manning and Assange is little more than revenge and a desire to deter others through exemplary punishment.

The British government's decision has come at the end of a week that also saw Aaron Banks lose his libel case against Carole Cadwalladr of the Observer. The case against Assange is essentially that he knew he was being reckless in publishing the leaked diplomatic cables and thus has no defence of public interest. As a consequence, his actions amount to espionage rather than journalism. Given how reckless the press has been over the years (incidentally, an argument at the heart of the "Brexit was a con" campaign), this is a debatable distinction. In contrast, Banks failed in his attempt to show that Cadwalladr was reckless in suggesting he was in the pay of Russia in her Ted talk and tweets, essentially because the judge ruled that so long as Cadwalladr thought her statements were in the public interest, "a journalist is not required to guarantee the accuracy of her facts". There's obviously a world of difference between criminal and libel law, not least in the threshold for proof, but this does highlight an important point that gets to the heart of free speech: that you are entitled to be wrong. 

Where the judge has been remarkably generous towards the journalist ("Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part") is in deciding that when the inacurracy of her Ted talk claims came to light - i.e. when the Electoral Commission found no evidence of law-breaking by Banks with respect to donations - the continued public circulation of the talk was unlikely to cause Banks any real reputational harm, which is a polite way of saying that he didn't have much of a reputation to defend and should get over himself. Mrs Justice Steyn did not pass judgement on Cadwalladr's failure to apologise to Banks for being inaccurate, though this was central to the plaintiff's whole case. As he put it this week, "This was never about seeking to silence criticism. Carole knows that had she apologised and agreed not to repeat this false accusation at the outset, these proceedings would never have been necessary". He's not a man it's easy to feel sympathy for, but he unquestionably has a point.

The case highlights the lack of any formal means of redress against media misreporting, short of an expensive libel action that only someone of Banks's wealth could consider, but you can easily understand why Steyn decided not to venture onto that terrain and risk being accused by the press of trying to resurrect Leveson. I don't think we should underestimate the extent to which the press's turn against the judiciary in recent years - "enemies of the people" etc - was fuelled by the fallout from the Leveson Inquiry, in particular the ongoing cases over phone-hacking damages. Likewise, we shouldn't be misled by the empty Rwanda flight this week into thinking that the government's target is solely the European Convention on Human Rights and the court in Strasbourg. Most of those refugees were taken off the plane manifest as a result of injunctions allowed by English judges under UK law. The appeal to Strasbourg simply mopped up the handful of individuals that remained due to board.

The Guardian's own judgement on the Banks vs Cadwalladr case predictably claimed it was "an important victory for free speech and public-interest reporting" and (perhaps a little too frankly) "a boost to a media industry, which, when it comes to court cases, has had little to cheer about in recent times." But, in the manner seen in its coverage of Assange, it also muddied the waters by chuntering on about "the online trolling, abuse and harassment Cadwalladr had faced". Given that much of that so-called trolling was justified - i.e. claims that Cadwalladr was talking bollocks and had long ago crossed the line into paranoid conspiracism - the attempt to paint this as mere misogyny was depressing. It would appear that the paper that claims "Facts are sacred" is not above the manipulative emotionalism it decries in others, while Cadwalladr herself is very selective in what she considers to be fair criticism. The facts of the matter are that Cadwalladr was wrong to say what she did but that the wider liberal media campaign to establish a conspiracy behind Brexit meant that her contribution to damaging Banks's reputation was considered inconsequential by the court. That's hardly a victory for free speech.

Julian Assange will probably be extradited to the US, though his case will go all the way to the UK Supreme Court first and, who knows, maybe even Strasbourg. Once on US soil, he will be tried, found guilty (let's not be naive) and will probably then spend most, if not all, of the rest of his life in jail (a Presidential pardon is unlikely). His is, without question, the most important test case of free speech in the world today because his opponent is the most powerful state in the world and one which has made no bones about its belief that raison d'etat trumps law, notably in respect of war crimes - the very substance of the WikiLeaks revelations. Though the "media industry" was happy to publish much of the leaked material Assange provided - not least the Guardian - it has proven abjectly weak in its defence of the man, constantly introducing tests of character and muttering about irresponsibility. This is partly professional elitism (they don't recognise him as a journalist) and partly partisanship (though his politics are actually quite opaque), but above all it is simple cowardice in the face of an implacable US state that seeks to make an example of him.