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Politics Foreign Affairs Culture Fellows Program

Assange, Phillips, and the End of Rights

His Majesty’s Government is bent on destroying Britain’s oldest and dearest patrimony. 

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I remember when British people used to say things like “They can’t run me in; I haven’t done anything wrong,” or “They can’t do that; it’s against the law.” George Orwell noted in 1941 that a vague belief in law being above power, expressed in such sentiments, was part of the English character. We also used to say that an Englishman’s home was his castle. 

But night after night, local TV news bulletins show police in body armor with special battering rams, smashing down the door of some alleged drug dealer’s home. And we are expected and intended to approve, even though these events, plainly done for show, have less than no effect on the vast levels of drug abuse in our society. In fact, although we have had a Bill of Rights in England since 1689, on which much of the American Bill of Rights is based (including, amazingly, the right to bear arms), we are very poorly protected from the state if it wishes to start pushing us around. 

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Two recent cases in the London courts, one awaiting judgment and the other perhaps awaiting appeal, would be engaging the attention of the Voltaire of our age if we had one. 

But we do not. Radicals, in Britain at least, have given up concerning themselves about annoying matters of free speech or the abuse of power. I think this is because those radicals, finally in charge, are actually rather enjoying the sweets of government—the freedom to start wars, and the freedom to squash the liberties of others. 

The two cases are those of Julian Assange, an Australian whose Wikileaks organization published American secrets after Chelsea Manning leaked them; and Graham Phillips, an unloveable British video blogger whose reports from Ukraine have, to put it mildly, not glorified the Ukrainian side in the current war in that country.

Here I must give thanks for the Internet, which allows the curious reader to examine the details of these two men’s actions for themselves. There are many such details, and I do not ask anyone to admire either man. I have disagreed with Assange rather fiercely over the drug issue. I don’t much like Phillips’s behavior, especially towards prisoners of war captured by the Russians. But, as the Supreme Court Justice Felix Frankfurter once rightly said, “The safeguards of liberty have frequently been forged in controversies involving not very nice people.”

I won’t even go very deeply into the argument about what Assange published except to say that his supporters fiercely rebut the main (and most widely believed) claim against him—that he endangered Americans by his actions. They say he took careful precautions against doing so, and that no evidence of such harm has ever been produced. I’d add that his revelations about the shocking behavior of American Apache helicopter crews over Baghdad in July 2007 are by any standards an illustration of what journalism truly is and what it is most profoundly for—revealing the concealed truth about the actions of the state, and so increasing the amount of justice in the universe.

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The U.S. government wants Assange in its hands, even though, if he were a U.S. citizen, he would (I believe) be protected by the First Amendment. It wants to try him under the oppressive Espionage Act of 1917, which allows no public interest defense. The same rather disreputable piece of legislation was used against Daniel Ellsberg after his 1970s leaking of the Pentagon Papers. This is now pretty universally believed to have been a noble and correct act, and Ellsberg, before his recent death, was a vocal supporter of Julian Assange. 

There is no question that this is a political case. It has been openly discussed by the former CIA Director Mike Pompeo, who was highly critical of Assange. If any British government official of similar rank had intervened in this matter in the same way, I doubt that our courts would have allowed the case to proceed. The Extradition Treaty between Britain and the U.S. specifically and explicitly bans political extradition. 

Yet the London courts and the British government have so far insisted that Assange (languishing now for years in a UK maximum security prison as if he were a terror suspect) should be sent to America. It is quite astonishing how few British journalists, whose own freedom seems to me to be gravely threatened by these proceedings, have been prepared to back Assange. There is a kind of acceptance of this mighty crushing action, unworthy of an allegedly free country, let alone two allegedly free countries.

Even fewer voices have been raised for Phillips, the only purely British citizen (that is to say, without any other nationality) ever to have been sanctioned by His Majesty’s Government under ferocious recent laws granting ministers arbitrary powers to punish individuals without due process. Generally, such sanctions are levied against governors of Siberian provinces of Russia or Syrian army officers who will never set foot in England and do not need to be worried about them. They have been a way for Britain to look as if it is doing something in various officially noble causes when it is not really. But Phillips, a former minor civil servant, is badly hurt by this treatment. 

The expression “Kafkaesque” is used pretty widely and lightly in our language. When we employ it, we do not really think that an individual is being treated remotely as badly as Josef K. was in “The Trial.” Yet Phillips is genuinely trapped in a legal matter in which he can do no right, and from which there is no obvious escape. He owns a modest house in North London and expects one day to return to his homeland. These sanctions, imposed by decree rather than by any court, make him a prisoner of the state. He cannot receive payment for work. Nor can he pay anyone for any services. So he is forced to break the law. He cannot, for example, pay the property taxes on his house to his local town hall. Non-payment is of course against the law. Some time ago, I had to intervene to explain this to that town hall, who might otherwise have taken stern action against him, but who had the humanity to see he was trapped and to act accordingly. 

Phillips has been repeatedly told that he could apply for a special license from His Majesty’s Treasury, allowing him to live some of his life. He understandably resisted this, believing that to do so would be to accept a punishment unjustly imposed on him. Now that he has sought to apply for such a license, he has found that it has not in fact helped him very much. His British bank still does not wish to deal with him, for instance. He cannot make it do so. The charge against him is so strange that I find it almost incredible. Phillips is being sanctioned because he is “a video blogger who has produced and published media content that supports and promotes actions and policies which destabilize Ukraine and undermine or threaten the territorial integrity, sovereignty, or independence of Ukraine.” 

Two thoughts occur to me. One is that Ukraine must be weaker than we thought if the insignificant video blogs of this little-known person threaten its territorial integrity, sovereignty, stability or independence. The other is that my own newspaper and magazine writing, and my broadcast debate contributions, critical of Ukraine and of British policy towards it, could, under a slightly dimmer government than Britain now possesses, be cited against me in the same way. Phillips, who could barely get the London Foreign Office to respond to his letters about his treatment, took this matter to the High Court in London as a civil matter, thanks to the pro bono support of a London barrister called Joshua Hitchens (to whom I am not related). Joshua Hitchens fought the case hard, on the grounds of free speech, and lost. He has since sought permission to appeal. 

In initially refusing him, the High Court said that the arbitrary punishment of Phillips was an intentional outcome of UK sanctions law. It noted that “it is clear that Parliament intended that sanctions could be imposed in response to the exercise of rights of speech and expression.” 

These are bad times for freedom of speech in the country that gave birth to it, and worse times for those who thought that the country, or at least a reasonable number of journalists, would rise in revolt against the extinction of its liberty. It turns out that they can do that here—that they can run you in if you haven’t done anything, and nobody but a few eccentrics will care.

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