Jonathan P. Baird

There is no doubt that Julian Assange has been a polarizing figure. He has been hated by both liberals and conservatives.

Many liberals hate him for Wikileaks’ role in releasing John Podesta’s Democratic National Committee emails before the 2016 presidential election. It was a factor that helped Trump at a critical time in the campaign. It showed the Democrats’ national committee favored Hillary Clinton over Bernie Sanders in the primaries. This probably depressed the election turnout for Clinton.

Conservatives have hated Assange on an entirely different basis. They have argued Assange’s work placed U.S. personnel and agents in danger. They have hated that he exposed military operations in Afghanistan and Iraq. Republican politicians like Sen. Mitch McConnell and Sarah Palin have called Assange a “high-tech terrorist”.

Along the way, Assange was also accused of sexual misconduct by two Swedish women. These charges were eventually dropped by Swedish prosecutors but they also placed Assange in a most unflattering light.

I believe the hatred and anger stirred up has confused the public’s view about what is at stake in Assange’s legal case. The government is turning investigative journalism into a criminal act. Assange, through Wikileaks, published classified documents in 2010. He didn’t leak them – Chelsea Manning did that.

Wikileaks published hundreds of thousands of documents about the Afghanistan and Iraq wars. The documents revealed the U.S. had killed hundreds of innocent civilians in these wars. Wikileaks released the infamous Collateral Murder video which showed 2007 footage of U.S. soldiers gleefully murdering a crowd of Iraqi civilians and two Reuters journalists.The Iraq war logs also showed over 66,000 Iraqi civilians were murdered by Iraqi forces.

In addition, the documents exposed torture of prisoners at Guantanamo Bay. Over 150 innocent Afghans and Pakistanis were held for years without charges. Prisoners included an 89 year old man and a 14 year old boy. The files revealed the government was holding prisoners to try and extract intelligence. The government relied heavily on evidence obtained from people who had been tortured, including at black sites. The files showed that many of those being held at Guantanamo were not considered dangerous.

Without Wikileaks, none of this information would have been made public. Knowing your government is conducting state torture at black sites and at Guantanamo is not some minor detail. So far, U.S. authorities have been unable to name one person who could have been shown to have died as a result of these disclosures.

George Orwell once wrote:

“Journalism is printing what someone else does not want printed. Everything else is public relations.”

Assange is being prosecuted for revealing war crimes. I believe he was engaged in protected First Amendment activity. Assange was publishing truthful information that was in the public interest to be disclosed. This is particularly true because of the continuing disastrous record of American engagement in foreign interventions.

To me, it is significant that Daniel Ellsberg, exposer of the Pentagon Papers and one of the heroes of our time, has spoken up so forcefully on behalf of Assange. He has said he feels “a great identification” with Assange’s work. Both were charged under the Espionage Act of 1917.

Ellsberg has asked President Biden to drop any prosecution of Assange. The Obama Administration, after a thorough review, declined to pursue Assange’s prosecution. It was the Trump Administration that initiated the prosecution and Biden is seemingly carrying the Trump effort on. Biden can decide to drop the prosecution.

Assange faces 17 counts of violation of the Espionage Act with a possibility of having to serve 175 years behind bars. Considering he is being charged under an Espionage Act, you might think Assange was acting as an agent of a foreign power. He was not. Nor did he sell any documents Wikileaks acquired. He simply made them available to the public.

The Espionage Act has an ignoble history. It was first used to prosecute Socialist Party leader Eugene V. Debs for opposing World War 1. Assange’s prosecution represents the first time in American history that a journalist, rather than a source, has been charged with Espionage Act violations.

A free press exists to serve citizens – not the government. In the Pentagon Papers case, the Supreme Court wrote:

“The press was protected (by the Founders) so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fever and foreign shot and shell.”

The indictment of Assange threatens press freedom. His prosecution has a chilling effect on journalists who are shining sunlight on dark places. The government message is unmistakeable: reveal secrets and you will pay a big price. There is no way to distinguish Assange’s actions from investigative journalism practiced by the New York Times or the Guardian. They too rely on publishing information that was deemed “secret” or “classified”.

The ACLU, Amnesty International, the Center for Constitutional Rights, PEN International and Human Rights Watch, among others, have asked the Justice Department to drop the case against Assange. Kenneth Roth, the executive director of Human Rights Watch, has written:

“President Biden should avoid setting a terrible precedent by criminalizing key tools of independent journalism that are essential for a healthy democracy.”

Assange is being held in maximum security Belmarsh prison in England. He has been in Belmarsh for three years without being convicted of any crime. Assange has had a stroke and is in poor physical and psychological condition.

The British Home Secretary Priti Patel very recently approved his extradition to the U.S. to face trial here. That decision is under appeal.

Former President Trump has demonstrated no respect for press freedom and clearly hates journalists. It is hardly surprising that he would not care about the First Amendment or journalism. However, we have a right to expect better from President Biden.

The job of a journalist is to question governments and to put out information that governments hate having disclosed. We do not need journalists who act as courtiers to power. History shows that survival of democracy necessitates journalists like Assange who are willing to expose the powerful. Without such journalists, the public is much more likely to be led into more imperialist misadventures like Vietnam, Afghanistan and Iraq..

With mass shootings practically a daily event, defenders of unrestricted gun owner rights typically invoke the mantra of the Second Amendment. Attention is rarely paid though to the historical circumstances surrounding the origins of the Second Amendment.

As part of the Bill of Rights, the Second Amendment is shrouded in a benevolent mist. That mist obscures more than it enlightens.

The truth is that the Second Amendment was largely a response to Southern interests who feared slave revolts. Slaveholders wanted the firepower through militias to repress slave uprisings.

James Madison crafted the Second Amendment to strike a balance. He believed a strong central government was necessary but he also wanted to assuage pro-slavery interests. Southerners feared the federal government would try to destroy slavery and Madison was determined to keep the South on board as part of the United States. Patrick Henry and George Mason led the Southern advocacy. They had threatened to shatter the shaky union that did exist.

The historian Carol Anderson has best described the historical circumstances around the Second Amendment. In her book, The Second, she wrote:

“The Second Amendment was, thus, not some hallowed ground but rather a bribe, paid again with Black bodies. It was the result of Madison’s determination to salve Patrick Henry’s obsession about Virginia’s vulnerability to slave revolts, seduce enough anti-federalists to get his Constitution ratified and stifle the demonstrated willingness of the South to scuttle the United States if slavery was not protected.”

Anderson argues that the role of the militia is key to understanding the Second Amendment. Recall the Second Amendment’s language: “A well-regulated militia, being necessary to the security of a free State, the rights of the people to keep and bear arms, shall not be infringed.”

Anderson’s perspective is obviously quite a departure from the Supreme Court’s recent jurisprudence as best exemplified by Justice Scalia’s opinion in the Heller case. Responding to the gun lobby, Scalia downplayed the militia part and emphasized the individual right to gun ownership. Anderson says the primary function of the militia was slave control.

As a historian, Anderson does not deny that militias in that era had multiple purposes. Many American revolutionaries feared a standing army. Militias were used to wage war against Native Americans and to quell slave revolts. They were also seen as needed to repel any possible foreign invasions.

The eighteenth century featured a huge importation of kidnapped Africans to America. Plantation owners brutalized the Africans with absolutely barbarous treatment. The goal was to induce submission in the quest for maximum profit. Slaves were the principal basis for Southern wealth.

As far back as 1639, Southern states prohibited Africans from carrying guns. In the eighteenth century Black people were forbidden from owning or carrying firearms but white men were required to own “a good gun or pistol” to give them the means to “search and examine all negro houses for offensive weapons and ammunition”.

As noted, the right to own firearms generally did not extend to Black people. New Hampshire, Delaware, Massachusetts and New York banned Blacks from military service in the Continental Army and the militias. It was only when there was a manpower shortage during the revolutionary war that the Continental Army reconsidered its “whites only” policy.

There was also the matter that in 1775 Virginia’s royal governor, the Earl of Dunsmore, said the British would emancipate every male slave of a rebel “who could and would bear arms for King George III”. There was fear that the enslaved might opt for the British side.

A deep fear of slave revolts permeated the white power structure in the South. In 1739, the Stono Rebellion in South Carolina saw a series of pitched battles in which a bloody slave rebellion was mercilessly put down. According to Anderson, the enslaved were tortured, shot, hanged and gibbeted alive”. Then another fifty slaves “were taken by their Planters who Cut off their heads and set them up at every Mile Post they came to”. Serving in slave patrols was required for all able-bodied white men.

Later in the eighteenth century and the early nineteenth century, the fear of slave uprisings only increased. The Haitian revolution which began in 1791 terrified American slave owners. Gabriel Prosser’s rebellion in 1800, the German coast rebellion of Louisiana in 1811 and Nat Turner’s rebellion in 1831 all demonstrated the slave desire for freedom.

Those slaves who did try to escape were hunted down by militias and bounty hunters. Both horses and dogs were used by slavers. Slave patrols subjected Black people to questioning, searches and floggings. Guns were a key instrument in a regime of systematic control.

In the nineteenth century, the fugitive slave laws contributed to the growth of militias. The South wanted escaped enslaved people to be returned to their masters. Before our civil war, huge political battles were fought around the issue of fugitive slaves’ rights.

Many on the political right seem to think the Second Amendment was carved in marble by God. On TV, I just saw a political ad about how President Biden was supposedly trying to take away our “god-given” Second Amendment rights. Former Milwaukee County Sheriff David Clarke was spouting this.

The irony could not be more extreme. Instead of being god-given, the Second Amendment emerged as an instrument to protect slavery and slavers’ rights to control black people. Its history is anything but noble.

Rights, even constitutional rights, do not come out of nowhere. They are rooted in a historical context. Those who want to whitewash American history ignore the centrality of slavery in our past. Unlike other constitutional rights in the Bill of Rights which have had a more positive and civilized evolution, I would argue the Second Amendment is unique. It was a gift to Southern slave interests to bribe them to stay part of the U.S..

The historian W.E.B. Dubois once wrote “the problem of the twentieth century is the problem of the color line”. I think that statement is true for all of American history. It is impossible to understand where the Second Amendment came from without placing it in the middle of the American battle around the maintenance and preservation of white supremacy.

When it comes to little-known, important stories about Jewish resistance to the Nazis in the 1930’s and after, the story of Fritz Bauer stands out. Hailing from Stuttgart, Bauer was a lawyer, a judge and a prosecutor in Germany both before the Nazis came to power and after they were vanquished.

For 38 years, he used his legal skills to defend democracy and then later to pursue Nazi war criminals. After the war, his mission was lonely and he faced unremitting German hostility.

People might assume that after the Nazis were defeated in 1945, public opinion turned. That was not the case for many years in Germany.

There was a protection racket or it could be called a conspiracy of silence to hide Nazi crimes. The German judiciary remained reluctant to prosecute Nazis. Thousands of former Nazis were returned to positions of power in West Germany in government ministries, the police and the judiciary. Only a very tiny number of Germans who participated in war crimes or crimes against the Jewish people ever faced prosecution.

This history is little-known as the Cold War between the United States and the Soviet Union superseded the demise of German fascism. It is notable that in 1958 Germany’s highest court, the Federal Constitutional Court, claimed that not one of the verdicts of the Nuremberg trials was legally valid.

Bauer was a legal renegade. To appreciate his later accomplishments after World War 2, it helps to know about the pre-war period. Bauer became a criminal judge as a young man in 1930. Unlike most judges who were conservatives, Bauer was a member of the German Social Democratic Party, a left party opposed to fascism. Although he was Jewish, he downplayed his background.

Even before they came to power, the Nazis targeted Jewish judges. Victimized by anti-semites who made accusations, Bauer was demoted and taken off criminal cases. He had become better known because he and Kurt Schumacher, the head of the Social Democrats in Stuttgart travelled around Germany giving speeches defending the Weimar democracy. It was a time of intense political polarization.

After the election in 1933 with Hitler appointed Chancellor by President von Hindenburg, Nazi partisans arrested Bauer and sent him to a concentration camp where he spent eight months. He faced torture and relentless abuse. The Nazis forced him to clean the “twelve-cylinder”, a filthy pit beneath the camp’s latrine.

As noted, Bauer managed to get out of the concentration camp. He believed his release was due to friends in the judiciary. Out of captivity, he was treated like a criminal. He could no longer earn a living as an attorney as Jewish lawyers were banned. Bauer and his family escaped to Denmark which also proved to be a hostile environment. As the Nazis pursued their opponents in Denmark, Bauer ended up locked up again first in a Copenhagen prison and then in an island prison camp. He got out after a couple months.

In 1943, Bauer heard there was a plan to round up Denmark’s Jews. He went into hiding. He and his family escaped to Sweden in a motorboat owned by a Danish fisherman. His family members who had remained in Stuttgart were murdered by the Nazis.

When the Nazis capitulated in May 1945, Bauer wanted to return to Germany as soon as possible. Regarded as “too Jewish”, Bauer remained a pariah. He could not get any job offer even though he tried to sell himself as now having “no religion”. In spite of a very strong legal background, the Jewish tag diminished employability prospects because of profound anti-semitism that remained the rule in Germany.

He resettled in Germany in 1949. He was finally able to get a legal job as a provincial attorney general in an obscure court close to the East German border. It was from this perch that Bauer made his mark.

Prosecuting Nazis was not the path to success and popularity in Germany. A case came along though that grabbed Bauer. A prominent former Nazi, Otto Ernst Remer, had called the plotters of a July 1944 attempt on Hitler’s life “traitors”. At issue in the case was whether Remer had made a factually false statement.

Being media savvy, Bauer engaged the press. He used the trial as a consciousness-raising exercise about the evils of fascism. Bauer persuasively argued that disobeying a tyrant was patriotic. Remer ended up with only a three month sentence he never served but Bauer succeeded in sparking a national debate.

It was not lost on Bauer that the Holocaust was not the focus of the Nuremberg trials in 1945. The Nuremberg prosecutors picked 24 defendants who were tried for waging a war of aggression. Nuremberg did not focus on the concentration camps. The Holocaust was included in the list of indictments but it played a marginal role in the trials.

Bauer gained fame and notoriety because unlike almost all other German jurists he pursued bringing Nazi criminals to justice. Nothing like that had been done by the German judicial system. Thousands of Germans implicated in mass murder simply disappeared into the post-war normalcy of everyday life.

In 1957, an Argentine Jew, Lothar Hermann, privately wrote Bauer that he knew Adolf Eichmann, chief organizer of the Holocaust, was alive in Buenos Aires. Eichmann was living under an assumed name and Hermann had his address. The West German intelligence service had known about Eichmann since 1952 but sat on the information. Even worse, Nazis like Eichmann, were protected by a well-connected network of sympathizers.

Bauer secretly passed his Eichmann file onto the Israeli secret service, the Mossad. He could tell virtually no one because experience had proven that any leak would allow Eichmann to escape. Bauer’s work had been frequently thwarted by other civil servants sharing information and warning Nazi suspects in advance of their possible arrest. In this instance, Bauer played a key role behind-the-scenes in Eichmann’s apprehension by the Israelis.

In 1963-1964, in Frankfurt, Bauer pursued his most audacious mass trial, prosecuting war crimes committed at Auschwitz. Bauer sought to reveal the historical truth of that concentration camp. He recruited the Institute for Contemporary History in Munich to prepare expert reports on Nazi persecution. He selected defendants who represented a cross section of the whole camp that would expose the system as a whole. In his biography, titled Fritz Bauer, Ronen Steinke wrote:

“Bauer and his team of prosecutors wanted to highlight the division of labor that had enabled the Nazi killing machine to run so smoothly, a division of labor that historians would later identify as the key structural feature of the Holocaust…The savage efficiency with which the mass killings were performed depended on highly specialized tasks being distributed through the Nazi workforce in a factory-like manner.”

The Auschwitz trial did not result in long sentences for the defendants. The judges assigned responsibility for the crimes of the Holocaust only to the men who gave the orders like Hitler, Heydrich and Himmler.

In 1968, Bauer died. His personal bravery paved the way for greater change that came over ten years after he was gone as Germany did ultimately reckon more with the legacy of the Holocaust. One of Bauer’s own prosecutors described him as “ a powder keg”.
During his life he faced constant death threats and late night phone callers screaming things like “Die, you Jewish pig!”.

Whether democracy and the rule of law will survive in America may depend on whether there are jurists and prosecutors with the courage of a Fritz Bauer.