Dear Minister (Redacted): Assange and FOI

On Thursday, the Australian Department of Foreign Affairs and Trade published their answer to a Fairfax two-fold Freedom of Information request on Julian Assange. The first part was for briefings to Foreign Minister Bob Carr about Wikileaks, Assange and Bradley Manning. The second was cable traffic (the kind made available by Wikileaks) between the embassy in Washington and the department on Wikileaks, Assange and Manning from February to April this year. The FOI’s aim was not to release Assange but to embarrass the government by proving Bob Carr a liar. Fairfax claimed DFAT’s long-held concern Assange would be extradited to the US was “at odds with Carr’s repeated dismissal of such a prospect.” DFAT’s heavily redacted response gives insight into Australian concerns about Assange.

The response started with a letter addressed to Carr on March 2. The letter writer was department secretary Dennis Richardson who was also ambassador to the US for four years to 2009.  We don’t get to see much of Richardson’s advice to Carr. “Dear Minister”, the advice began, followed by five pages marked “redacted”.  Some tantalising notes were left on the last page. Stephenson wrote to Carr in note s22.1(a)(ii), on any given day, the department is dealing with around 1500 consular cases. The appendix s22.1(a)(ii) also deals with workload and said consular work was increasingly complex due to the travel behaviour of Australians and the number of media cases requiring ministerial involvement. Unfortunately the next page was redacted.
There followed a suggested response to possible questions on Assange lawyer Jennifer Robinson whose name was on a Heathrow “inhibited travel” list.  This was to confirm events but to deny Australian involvement or British restrictions on her travel. The problem was caused by “management of Ms Robinson’s check-in” and “inadvertent comments by airport security and other staff”. They said check-in staff eventually cleared Robinson to travel and she boarded the flight as planned. The talking point ended “I hope this will put all the conspiracy theories to rest.”
The next page is redacted. The briefing sheet moved onto the possible question whether the Government should do more to stop Assange from being extradited to Sweden. A month before becoming Foreign Minister, Carr used his blog to slam the role of judges as prosecutors in the Swedish legal system as “an outrage by Australian standards”. But as a representative of the Australian Government Carr had to express “confidence in the integrity of judicial processes of Sweden”.
The likely US indictment should only be discussed “if raised”. The US is investigating Wikileaks and the US has not advised Australia of any action against Assange though “the details of our conversations are confidential”. Australia also refuses to comment on the leaked emails from Stratfor saying there was a sealed indictment. Carr should not talk about the “temporary surrender” extradition mechanism nor the likelihood of Australia extraditing him to the US if he returned here.
The briefing said Assange was welcome home “once international orders preventing his travel have been lifted”. An extradition was a matter for the Attorney-General though Assange could fight an order in Australian courts. There should be no comment on Assange’s eligibility to run for the senate as “suggested on Twitter”.  It was Wikileaks’ suggestion and while the response was to be handballed to the A-G, it was Senator Carr’s opinion that “Assange has not been charged with an offence in Sweden or elsewhere”.
There followed background on the legal proceedings. British police issued Assange with a European Arrest Warrant in December 2010 which a court found valid two months later. Assange appealed to the High Court which upheld the decision in November 2011. However they allowed an appeal to the Supreme Court on the legal matter of whether a prosecutor was a “judicial authority” who could issue an EAW under UK law. After hearings in February, the Supreme Court reserved its opinion. If the appeal is successful, Assange is free. If it is unsuccessful, Assange has one last legal avenue, the European Court of Human Rights.
The Department had spoken to Assange twice by phone, twice in person, facilitated a visit by his mother and had attended all legal proceedings. If he ends up in Sweden, he would probably be kept in detention while any trial was pending. The US Grand Jury was deliberating the Wikileaks cablegate affair in secret. Wikileaks was accused of providing a rainbow table to crack passwords in Manning’s pre-trial. After Wikileaks released the Stratfor email, Australia sought clarification on whether there was a sealed indictment for Assange. The request was denied due to the secrecy of the Grand Jury.
Then 10 more redacted pages followed by a cable from Washington marked “routine, information only”. The cable provided a summary of the Manning case including the links to Assange and Wikileaks. These included file-sharing, contact details and on-line chat. Though not explicitly stated in the cable, prosecutors were building a case against Assange.
This possibility was raised by another similarly undated “routine” cable which said the US has been investigating Assange for more than 12 months. An unconfirmed grand jury was empanelled in Virginia in 2010 but but no one involved is allowed to talk about it and the US refuses to confirm its existence.  The cable also quotes commentary which suggests a successful US prosecution of Assange would be “challenging and complicated”. Possible charges could include accessing computers without authorisation, theft of US property, disclosing prohibited material or criminal conspiracy to “defraud the US”.
We see more redacted pages before more routine cables. They quoted a Wikileaks press release denouncing UNESCO for banning Wikileaks personnel from a conference about Wikileaks. They pointed out the conference was organised by “Washington insiders, cold war ideological allies (such as Freedom House and the disgraced IAPA) and U.S. mainstream media groups.” When media asked US State Department, their spokeswoman Victoria Nuland said given US’s state of “suspended animation” in UNESCO, she was “not sure we’re going to have much to say about it.
Another cable gave an update on the Manning arraignment. With the complexity of the case including 40,000 documents containing 400,000 pages, it would mean an August start date. This would see Manning detained for 800 days. It reported a voice from the gallery shouting “Judge, isn’t a soldier required to report a war crime?” It also reported the president of the centre for constitutional rights Michael Ratner’s comment prosecutors were “bludgeoning Manning to accept a plea where he would then implicate Assange”.
Another cable discussed the leaked Stratfor emails. On 27 February Wikileaks began publishing the Global Intelligence Files based on five million emails from Stratfor which provides subscription-based analysis of geo-political issues. It was a private sector Cablegate which Wikileaks publicised with newspaper partners. The cable did not mention the “sealed indictment” but Australia was mentioned twice. An East Asia Monitor Guidance talked about Australia’s submarine crisis and the second was from a “well connected former Senator” on Chinese mining interests.
A cable followed that explicitly mentioned the Stratfor “sealed indictment” email. The email’s author Fred Burton was an ex-deputy chief of US counter-terrorism with “close ties” to the intelligence and government network. The email was not official confirmation and the cable author said Burton might be mistaken due to a draft indictment “commonly used by prosecutors to ‘game out’ possible charges.” The Grand Jury silence made everything just speculation.
There was a long explanation why Grand Juries operate in secrecy. It was imported from English law, it protected witnesses, it would lessen the risk someone indicted would flee, and it would prevent someone tried but exonerated from “being held up to public ridicule”. While Assange might have coped with the indignity, it is also designed to prevent “satellite litigation in advance of judgement”.
More cables discussed new allegations in the Manning case. Firstly, that he provided material assistance to the enemy, Al Qaeda in the Arabian Peninsula. It discussed the legal arguments and media commentary with many saying the case was weak and questioned the benefits to AQAP. Another cable followed about the “rainbow table” allegation.
Another cable discussed the UN Special Rapporteur on Torture’s report to the UN on Manning (Manning data starts page 74). Juan Mendez said Manning’s detention was punitive but he did not accept monitored access to the prisoner. It had a letter from the Department of Defense to Mendez saying they were satisfied with the detention and had placed him on death watch.
The last significant cable was about Wikileaks’ request for the US to publicise details of Manning’s court martial. Michael Ratner said the public had First Amendment and common law rights to access to criminal trials. Ratner quoted Circuit Judge Damon Keith’s dictum “democracies die behind closed doors”. He noted Mendez’s objections and said the public had a “compelling interest” in the Manning case. Particularly Assange had a “unique and obvious interest” and “it appears” federal prosecutors had a sealed indictment against him.
The last cable in the document on Jennifer Robinson’s flight difficulty was completely redacted. Some 39 pages out of 125 were redacted showing Assange has been a major topic of discussion and concern for DFAT. Australia almost certainly knows about the sealed indictment but is content to hide behind legal niceties. This was the take of today’s Fairfax report. The Department played a straight bat. Fairfax concluded with DFAT’s non-response. “A spokesperson for Senator Carr said yesterday Assange’s circumstances remained a matter for the UK, Ecuador and Sweden, with Australia’s role limited to that of a consular observer.”

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