By Pam Stavropoulos | 10/12/2020
What kind of law allows pursuit of charges under the 1917 United States Espionage Act — for which there is no public interest defence — against a journalist who is a foreign national?
The closing argument of the defence in the extradition hearing of WikiLeaks founder and publisher Julian Assange has been filed. For this and other reasons it is apposite to consider the authority invested in the law before which, in democratic societies, we are ostensibly all equal.
In fact, notwithstanding the familiar claims of objectivity (and as `everybody knows’ in Leonard Cohen’s famous lyric) the reality is somewhat different. Jokes about the law attest to this:
‘One law for the rich…’
‘Everyone has the right to their day in court — if they can pay for it’
‘What’s the difference between a good lawyer and a great one? A good lawyer knows the law. A great lawyer knows the judge’
The term ‘legal fiction’ calls into question the relationship between law, objectivity, and truth. On the one hand, law is the essential pillar of a functioning society. On the other, it is replete with anomalies both in conception and execution. To what extent can these perspectives be reconciled? High stakes are attached to this question.
Questioning claims of objectivity in the context of law.
Despite its routinely invoked status of objectivity, there are many grounds on which the law cannot be objective in any overarching sense. Judicial findings can be overturned on appeal (i.e. including in the absence of new evidence). This immediately indicates that the law, in common with other domains and disciplines, is subject to interpretation.
Decision-making can be significantly influenced by unconscious factors. Although this is rarely considered in the legal context, it includes basic factors such as the timing of rest and food breaks. A study of the judicial rulings of Israeli judges in relation to parole boards found that the percentage of favourable rulings decreased “from about 65% to nearly zero within each decision session and return[ed] abruptly to about 65% after a break.” These findings suggest‘that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions’. This study provides further evidence “that points to the susceptibility of experienced judges to psychological biases.”
Conflicts of interest also pose challenges to the notion of objectivity in the context of law. In the case of Julian Assange, as DiEM25 and others have highlighted, conflict of interest would clearly seem to be operative. This is because financial links to the British military — including institutions and individuals exposed by WikiLeaks — by the husband of the Westminster chief magistrate who initially presided over the extradition case have been revealed. This chief magistrate refused to recuse herself and retained a supervisory role of oversight even in the face of this manifest conflict of interest.
At another fundamental level is the conception and construction of the law itself (i.e. distinct from, but also in combination with, factors which influence those who practice it). The western philosophical tradition from which liberal law derives is shaped by dichotomies (e.g. objective/subjective, mind/body, intellect/emotion, public/private). Entities which are relational are artificially counterposed as oppositional, the first listed is privileged over the second, and these dualisms are not only gendered but classed and ethnicised as well.
Insistence on ‘objectivity’ obscures and deflects attention from these dichotomies which are far from neutral in the way they operate. This is a legacy which continues to shape the present and it is especially strong in the discipline and profession of law. The role accorded to precedent by and within the context of law is itself a bias towards traditionalist conceptions of law and its practice. It also serves to slow the pace of legal reform in light of changed social conditions and values.
In the case of Julian Assange, the refrain that the law and its processes are ‘objective’ ensures that mounting critique of both the fact of his prosecution and the way in which the proceedings are conducted is not engaged with. It also serves to deflect attention from the fact that there is no precedent — i.e. in a profession which claims to respect it — for prosecution of Assange in the first place.
A further ground for contesting the claimed objectivity of law within liberal societies stems from its elevation of the rights of the ‘individual’. While ostensibly including everyone, the term ‘individual’ was not synonymous with ‘person’ when liberal law was founded in the eighteenth century. Rather, a particular kind of individual served as the prototype for construction of liberal law — namely the white, male, middle class, and marketplace actor.
The subsequent period has seen the attempt of diverse groups of omitted persons (women, people of colour, LBTQIA+ and so on) to access legal rights they were long, and in some cases still, denied. Nor has the legal protection of individual rights been impartial as ongoing assertions about the ‘objectivity’ of the law would have us believe.
‘The man of reason’: issues of gender and the workings of power.
The elevation of reason and rationality within the western liberal tradition at the expense of other human qualities and capacities (such as emotion and empathy) is embedded in the conception and practice of law in western societies and is intrinsically related to gender. It is a matter of historical record that white males have constructed accounts of ‘human’ experience which reflect a masculinist bias. Indeed, “[t]he further back one goes in our history, the more exclusively the evidence is based on white, upper-class, Christian, educated males”.
The liberal universalist pretension that reference to ‘man’ included women has literally been revealed as a conceit. But the high premium placed within law on precedent and on abstracted notions of objectivity, neutrality, rationality, and detachment has obscured their gendered foundations. ‘The man of reason’ and ‘the man of law’ were literal living beings while women and people of colour were long excluded and ‘feminine’ qualities disparaged. This legacy continues to inflect the theory and practice of law at multiple levels and in multiple ways
How does the gendered nature of law relate to the case of Julian Assange, who as a white middle-class male would seem to be advantaged rather than discriminated against because of it? In addition to the myth of the objectivity of law, it is important to engage with another entrenched myth — i.e. that the law is necessarily ‘apolitical’. In the case of Julian Assange, the political stakes are enormous.
Just as objectivity and rationality falsely imply a realm outside human intervention, so does the myth of the law as ‘apolitical’.
Were the law and politics really separate realms, we would not see, as we currently do, the attempt of the outgoing Republican administration to populate the United States Supreme Court with as many hand-picked judicial nominations as possible. This is a particularly flagrant illustration of attempts to politicise the law (which might alternatively be seen as an abuse of legal process rather than a feature of it). The prosecution of whistleblowers shows that neither the law nor its practice are immune to the workings of power. Political factors and considerations cannot be neatly compartmentalised.
Laws within western liberal societies have been and continue to be discriminatory.
They can differentially apply to and impact whole groups of people who lack recourse to the status of `individual’. Indeed, laws specifically designed to apply to some groups and not others (for example with respect to the purchase and consumption of alcohol) have been common. The massive and disproportionate over-representation of people of colour within the US penal system underlines that the gap between law and justice can be dramatic, and that contrary to assumptions of objectivity the law can be far from ‘colour (as well as gender and class) blind’ .
The reasons for such travesties of justice have to do with the operation of power. In the case of Julian Assange, what is on trial is nothing less than our right to know what is done by governments in our name, and our capacity to hold power to account.
In exposing the avalanche of truly chilling activities and practices of governments which purport to be democratic, WikiLeaks has been the conduit by which we learn what we otherwise would not. This ranges from the heinous assassinations by the US military in the Collateral Murder tapes to the quiet economic disenfranchisement of millions of the world’s population by oligarchical corporations. The conviction of Julian Assange would signify a new dystopian landscape in which all investigative journalism risks prosecution, impunity for governments to commit violations in our name, and our inability to contest these because access to information about them is unavailable to us.
In light of the high stakes, Assange’s status as a white male affords him no protection against governments determined to conduct `business as usual’. His prosecution is reliant upon myths about the neutrality and ostensibly apolitical nature of law to uphold the rapacious and unconscionable practices of state and corporate interests.
That the law should be respected and obeyed is an article of faith for ‘law abiding citizens’. The implicit conflation of the law with justice and ethics – such that upholding of the law in all circumstances is the right thing to do – is another dubious principle.
It would surprise few people that particular laws can be (and manifestly have been and remain) unjust.
But the consistent and underlying injunction that laws should be respected works against the ongoing need for vigilance as to which laws are indeed worthy of our respect and which need to be criticised and potentially actively resisted.
Significantly, the phrase ‘law abiding citizens’ itself highlights the need for this distinction, when laws are in place which deny the status of citizen to so many of the world’s population. The now normalised term ‘illegals’ also flies in the face of the fact that it is not illegal to seek asylum. As the title of the book Lethal but Legal strikingly conveys compliance with law is no guarantee of ethical or even life-sustaining behaviour. And as the recently released text Justice on Trial elaborates dubious practices can be deployed with respect to the construction and operation of the `justice’ system itself.
This is clearly the case in relation to the prosecution of Julian Assange. But the frequent (mis)conflating of law with justice and ethics – reinforced by the constant refrain that the law is objective and immune to the workings of politics – undercuts this recognition.
There is no inherent relationship between rationality and morality.
Travesties of justice have to do with the operation of power. But they also extend to the limits and continuing misconceptions of the nature of reason itself. These are misconceptions which stem from ideas of the Enlightenment, which “were based upon an essential misunderstanding – that reason constituted a moral weapon, when… it was little more than a disinterested administrative method.”
Elevation of reason over emotion and other human qualities is a legacy of the dichotomies of liberalism and the liberal law to which it gave rise. But while the capacity to reason is rightly celebrated, it is inherently linked to the ability to rationalise. That is, the human capacity and even proclivity to justify and construct reasons for our actions, including and especially when they are self-serving.
The link between reason, rationality, and power — the rationalising of minority interests on a large scale and the socioeconomic implications — was not accounted for by our Enlightenment forebears. Nor is it acknowledged or even recognised in liberal philosophy and law. This `fundamental error may explain reason’s continuing force, because centuries of Western elites have been obliged to invent a moral direction where none existed’. In the current period the evidence of this is before our eyes. Recourse to law, which claims the mantle of reason, can perpetuate the problem, as is clear in the prosecution — and persecution — of Julian Assange.
The founding of the Belmarsh Tribunal.
The ongoing travesty of the case of Julian Assange has many ripple effects. It is tragedy, comedy, and farce simultaneously. But its implications are seismic and can in no way be minimised or trivialised.The ongoing mistreatment of Julian Assange reveals truly staggering violations of law — as well as of justice. These are well documented, such as in Julian Assange: Three myths destroyed by defence witness statements.
What kind of law allows pursuit of charges under the 1917 United States Espionage Act — for which there is no public interest defence — against a journalist who is a foreign national? The right of the public to know of travesties committed by governments in our name while the perpetrators of such travesties go unpunished counts for naught in this spurious and seismic prosecution.
But it has spawned the founding of a new tribunal, building on the prior forum of a people’s tribunal by which to contest the legitimacy of the laws waged against Assange and the public’s right to know. As the Belmarsh Tribunal now represents and asserts, the law itself is on trial.
Watch the Belmarsh Tribunal here!
Original article: https://diem25.org/law-and-disorder-the-case-julian-assange/