America’s Kristallnacht? by Robert Gore

If the US government prosecutes Julian Assange and WikiLeaks, it will mark a point of no return.

We’ll never know what “average” Germans thought on November 11, 1938, the day after Kristallnacht. Perhaps a few recognized it for what it was: a turning point, an acceleration of Germany’s descent into hell. America’s Crystal Night looms, and if it occurs, only a few will recognize it for what it is.

The fate of Julian Assange is the fate of one man, but it is also the fate of one of our most important freedoms. There won’t be shattered plate glass from vandalized businesses littering the streets, synagogues smashed, graves unearthed, or people herded onto trains. But his prosecution by the US government would destroy an inestimable value, one enshrined in the First Amendment, for which generations of Americans have fought and died: the right of the people and its press to inform the people and to hold their government to account.

Aside from armed resistance and revolution, the one defense individuals have against governments is intellectual: the concept of individual rights. There is an argument as to whether those rights come from our Creator (Thomas Jefferson) or from our basic nature as humans and the requirements of our survival (Ayn Rand). Despite starting from different premises, both arguments lead to the same conclusion: individuals have inherent, inalienable, inviolable rights, and the only legitimate function of government is to protect those rights.

The Declaration of Independence and the Constitution were explicit attempts to delineate a set of principles that recognized individual rights and tried to restrain government power. Though real-world implementation has fallen short, often far short, they were towering conceptual achievements.

In 1933, the year Hitler assumed power, the government began enacting laws that restricted Jews’ rights to earn a living, gain an education, or work in the civil service. In 1935, the Nuremberg Laws stripped German Jews of their citizenship and forbade them from marrying non-Jewish Germans.

Kristallnacht’s hooliganism was encouraged by the German authorities, and none of the perpetrators bore any legal consequences. More than 30,000 Jewish men were arrested and deported to concentration camps. The government would not protect Jews from the depredations of thugs and the government itself was a thug. Kristallnacht was a point of no return: Jews no longer had any legally enforceable rights. Soon enough no German would.

In America, there is no one villain or group that one can point to as responsible for the erosion of rights. Begun the day the Constitution was ratified, it’s been a gradual process. We’ve reached the point where only a few of the rights guaranteed in the Constitution and Bill of Rights still receive any measure of government solicitude.

Property and contract rights are out the window; the government routinely abridges them. You have no right to your own income, or to conduct your legitimate business or trade free from government regulation and interference. Much of the Bill of Rights is either irrelevant now or has been rendered a dead letter. In terms of individual rights, only the Second Amendment’s much infringed right to bear arms, and the First Amendment—the prohibition against the government establishing a religion, free speech, press, and assembly, and the right to petition the government—are still hanging by a thread.

Which is why the fate of Julian Assange takes on such significance. While the government has prosecuted those like Chelsea (formerly Brad) Manning who have stolen government secrets and classified information, it has not prosecuted the press individuals and organizations who have published them. That is WikiLeaks’ business model: it receives, vets, and publishes stolen information, often from governments.

The government has not gone after publishers because it would be a frontal assault on the First Amendment that it would probably lose. Any exception would swallow the general rule of press freedom. Say the Supreme Court recognized an exception: classified information whose publication would constitute an imminent and grave threat to the security of the United States. Who decides what’s an imminent and grave threat? The government would have the power to classify whatever information it pleases under that exception and put those who publish it at risk of prosecution, their only recourse years of costly litigation spent arguing that the information didn’t fit the exception.

Many Trump admirers resist the notion that their man is interested in the acquisition and use of power, but his and members of his administration’s hostility to individual civil liberties belies that resistance. Attorney General Jeff Sessions is a gung-ho supporter of the civil-liberties-eviscerating-government-power-expanding War on Drugs and civil asset forfeiture.

In the latter, a government seizes assets it claims were involved with crimes and makes their owners jump through myriad legal hoops—including proving the negative that their assets weren’t involved in a crime—even if the owners themselves were never convicted, or even charged, with a crime. Assets that are not “acquitted”—cars, cash, boats, houses, etc.—are kept and used by the government. President Trump has endorsed civil asset forfeiture, and has extended it outside America’s borders via an executive order (see “By Imperial Decree,” SLL, 1/2/18).

Trump’s Secretary of State and former director of the CIA, Mike Pompeo has fashioned a legal approach the administration might use, in a case against WikiLeaks and Assange, to slither around the First Amendment. In April, still director of the CIA, he delivered a speech in which several passages demanded, but never received, careful parsing from the mainstream media. They are still obsessing over a February Trump tweet in which he declared the US media an “enemy of the people.” This is considered a threat to the First Amendment, but Pompeo’s speech was mostly ignored.

Pompeo called WikiLeaks “a non-state hostile intelligence service often abetted by state actors like Russia.” Most press organizations, and almost all that consistently challenge the state, are non-state. WikiLeaks has published state secrets, undoubtedly considered hostile acts by those states, but how is it an intelligence service? Pompeo is arguing that WikiLeaks cannot be considered part of the press, consequently it’s not protected by the First Amendment.

As for the “abetted by state actors like Russia,” WikiLeaks has consistently denied it received the DNC emails from Russia, and nobody has proven otherwise. The best technical evidence indicates those DNC emails were directly downloaded to a portable storage device, indicating an inside job, and not remotely hacked, by Russians or anyone else.

Pompeo argued that “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” This is straight from Orwell: you are free to say what you want, as long as you don’t say anything against the government. He claimed that WikiLeaks “pretended that America’s First Amendment freedoms shield them from justice,” and, “they may have believed that, but they are wrong.” Now where would WikiLeaks get such a crazy idea? How about the plain language of the First Amendment?

Finally, Pompeo threatened: “To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.” Any government “secrets” the press publishes with the full approval of the government probably aren’t going to be terribly revealing. It’s the secrets the government doesn’t want revealed, the ones that are generally “misappropriated,” that reveal the most important secrets, which an informed and free people must know if they are to call their government to account.

From the excerpts quoted above, and the video of the relevant part of speech below, make up your own mind as to who’s perverting the Constitution.

Freedom of the press protects the rights of the press, but more importantly protects the right of all of us to be informed, especially about what was once considered “our” government. It amplifies the freedom of speech. Even a small newspaper reaches more people than someone shouting from a street corner.

If Assange and WikiLeaks are tried and convicted in a US court as “a non-state hostile intelligence service,” the government can slap that label on any person or organization publishing or otherwise disclosing its secrets. The case would probably make its way to the Supreme Court. If the court accepted the Pompeo exception to the First Amendment, freedom of the press and speech would become two more of the Constitution’s dead letters.

Just the prosecution of Assange and WikiLeaks would have a chilling effect. Not that most of the US’s supine mainstream and social media would be chilled. The mainstream media that have spoken out about Assange and WikiLeaks have come down on the side of the government. The social media companies, de facto arms of the government, are shutting down politically incorrect voices. Neither mainstream or social media have anything to lose from the termination of First Amendment freedoms because they don’t say, or allow anyone else to say, anything the powers that be don’t want heard.

Trump is a wild card on WikiLeaks and Assange. WikiLeaks’ disclosure of the DNC emails helped his campaign. He praised it back then, but now appears ready to prosecute. Trump administration officials and Trump himself often say one thing while Trump does another. It is not a given that Assange will be either extradited by the British government or prosecuted in the US.

Few totalitarian regimes take their people’s rights away all at once. It’s done gradually to reduce dissent, until that Kristallnacht moment where it’s impossible to evade the reality: there are no rights left. If the Trump administration prosecutes Julian Assange and WikiLeaks, that sinking feeling in your stomach will be the realization that the last remnant of your rights are gone, that the government and Trump are your enemies.

If Assange and WikiLeaks are prosecuted, who will dare tell the truth about the government? Trump will have destroyed one of the last vestiges of individual rights—and the freedom that goes with it—that once made America great.