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Financial giants use McClelland statements to blockade WikiLeaks

The companies strangling WikiLeaks are partly relying on the Australian government’s discredited claims about the illegality of WikiLeaks’ publication of diplomatic cables.

Giant US financial intermediary Visa is partly relying on the Gillard government’s claims that WikiLeaks acted “illegally” to justify its ongoing financial blockade of the whistleblower and media outlet, new material obtained by WikiLeaks has revealed.

WikiLeaks’s campaign against the illegal blockade, which has strangled the organisation of more than 90% of its funds, has suffered a setback this week after the European Commission declined to investigate the blockade (specifically, of the company DataCell, which WikiLeaks had been using) despite the European Parliament resolving last week that the Commission should seek to prevent the “arbitrary refusal of payments by credit card companies”.

WikiLeaks has obtained some of the material used by the US financial giants Visa and Mastercard to justify the blockade to the Commission (the material, in large PDFs, is here and here). Citing its own secret legal advice, Visa Europe told the Commission:

… the legal position of WikiLeaks’ activities remains uncertain … for this reason, the suspension of the processing of payments for the benefit of WikiLeaks over the Visa network continues, although if it was finally determined that WikiLeaks is not carrying out any illegal activities then the question of suspension would not arise.”

As part of its justification for claiming that the legal status of WikiLeaks was unresolved, Visa Europe cited the statement of then-attorney-general Robert McClelland in December 2010 about the release of the diplomatic cables that “you would have to assume that there is a reasonable case that the act of sourcing the information did involve illegal events”.

McClelland’s statement was a shift from the position of the Prime Minister, who a week earlier had called WikiLeaks’s publication of the cables “illegal”. She was then embarrassed when the Australian Federal Police declared that WikiLeaks had broken no laws. Like McClelland, the Prime Minister then shifted to saying that the documents had been obtained, rather than published, illegally.

Crikey understands that, like Visa Europe, Mastercard Australia has privately indicated that it too is relying on the statements of the Prime Minister and the then-attorney-general to justify its financial blockade, although it has dismissed online claims that it was “directed” by the government.

But no prosecution has been mounted anywhere against WikiLeaks’ publication or sourcing the cables. A grand jury in the United States has been investigating the circumstances of the leak of the cables and other secret information, but no indictment has yet been revealed of anyone beyond the accused leaker, Bradley Manning, currently facing a Kafkaesque military trial at Fort Leavenworth in Kansas, despite efforts to manufacture a relationship between Manning and Julian Assange.

Media outlets routinely publish secret material that has been leaked without examination of their legal status; indeed, key US newspapers such as The New York Times and The Washington Post rely heavily on anonymous leaks of secret information from US government sources.

Visa Europe’s position, however, can be maintained indefinitely. Saying the blockade will be lifted when it is “finally determined” that WikiLeaks is not acting illegally relies on proving a negative. The absence of prosecutions for any aspect of WikiLeaks’s activities so far has plainly been insufficient, and no government is going to permanently grant legal indemnity to any organisation into the future.

Mastercard and Visa have also failed to apply the test of whether an organisation has been “finally determined” to have not acted illegally in other circumstances. Rupert Murdoch’s News International has already admitted in court to the crimes of phone hacking and computer hacking and its current and former staff are facing charges of bribery, with claims that complicity in those crimes goes into senior management levels; News Corporation itself is also under investigation in the US for bribery of foreign officials.

By this logic, both News International and News Corporation itself should have been blockaded by Visa and Mastercard long ago, and remain blockaded until the resolution of all pending investigations and court actions arising from their activities.

The government has been repeatedly invited to withdraw its description of WikiLeaks’s activities as illegal and has so far declined to do so. “This is a matter for Visa Europe and the EU,” a spokesperson for current Attorney-General Nicola Roxon told Crikey.

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  • 1
    CML
    Posted Wednesday, 28 November 2012 at 2:06 pm | Permalink

    Clearly Roxon is stretching the truth when she says it is only a problem for Visa Europe and the EU. If the credit card companies are relying on Australian government statements, then it is very much OUR problem.

  • 2
    Posted Wednesday, 28 November 2012 at 3:30 pm | Permalink

    Yes, this is bloody disgraceful. Nonetheless, I note that it is still possible to donate to Wikileaks using one’s credit card.

  • 3
    shepherdmarilyn
    Posted Wednesday, 28 November 2012 at 3:42 pm | Permalink

    RElying on Gillard and Australia for the law is absurd, they don’t even know what our laws are.

  • 4
    Scott Grant
    Posted Wednesday, 28 November 2012 at 3:50 pm | Permalink

    Perhaps we should all stop using the services of Visa and Mastercard and Amex until they can prove that they are not acting illegally and have never acted illegally.

  • 5
    Scott
    Posted Wednesday, 28 November 2012 at 4:36 pm | Permalink

    Crikey’s coverage of the Assange/Wiki leaks affair continues to be a bit bipolar.

    One one hand you say that Assange is in danger of being extradited to the US because the US has issued a sealed indictment against him for his illegal wikileaks activities.

    And now you say that the credit card companies are acting incorrectly as wikileaks has committed no crimes and the US Grand Jury is coming up empty.

    Can’t have it both ways. Either Assange has something to fear (in which case the Credit card companies are acting correctly) or Assange has nothing to fear (and the credit card companies are being unreasonable)

  • 6
    Posted Wednesday, 28 November 2012 at 4:41 pm | Permalink

    But this piece specifically states that ‘no indictment has yet been revealed of anyone beyond the accused leaker, Bradley Manning …’.

    The US locks up people without charge.

  • 7
    Paddy Forsayeth
    Posted Wednesday, 28 November 2012 at 4:48 pm | Permalink

    Scott, Visa and Mastercard are acting against Wikileaks on an assumption of illegal activity, quite contrary to basic law and social rights. Imagine the uproar if companies and Gov. withdrew services on the basis of suggesting you had done something illegal and proving that you hadn’t. I think Visa withdrew its service under pressure from the US admin.

  • 8
    Christopher Nagle
    Posted Wednesday, 28 November 2012 at 8:35 pm | Permalink

    Wikileaks treads a tendentious line between treason and dissent. So why shouldn’t it be treated with equally ambiguous behavior by its enemies?

  • 9
    Posted Wednesday, 28 November 2012 at 8:55 pm | Permalink

    Treason is killing the head of state or the prime minister, or levying war against the state. How has Wikileaks done either of these?

  • 10
    AR
    Posted Wednesday, 28 November 2012 at 9:01 pm | Permalink

    CNagle - please explain how one it’s treason to poke the Hegemon when one is not a citizen of the Benighted States.
    You also seem to think that dissent=treason, as did the unlamented xtn nutter, John Ashcroft, who was shrub’s first A/G - dumb or dumber.

  • 11
    drsmithy
    Posted Wednesday, 28 November 2012 at 9:07 pm | Permalink

    Can’t have it both ways. Either Assange has something to fear (in which case the Credit card companies are acting correctly) or Assange has nothing to fear (and the credit card companies are being unreasonable)

    The broken assumption behind this false dichotomy being that not having done anything illegal means not having anything to fear from the US Government and its legal system.

  • 12
    Person Ordinary
    Posted Thursday, 29 November 2012 at 8:11 am | Permalink

    The “Hegemon” is clearly above the law, and well out of reach of justice. In a sane world, Wikileaks would sue the financiers, and the separation of powers between the executive and legal functions would ensure governments can only watch from the side lines.

    It is the bankers that have the most to lose from the publication of truth …

  • 13
    Suzanne Blake
    Posted Thursday, 29 November 2012 at 9:35 am | Permalink

    Speaking of McClelland he was the Labor MP and then Minister who raised the Gillard AWU first in Parliament.

    Now with the revelations today, Gillard I am afraid Jimmy and co is GONE. The truth has caught up.

    http://www.theaustralian.com.au/news/investigations/proof-pm-told-firm-what-she-wont-tell-parliament/story-fng5kxvh-1226526159739

  • 14
    Person Ordinary
    Posted Thursday, 29 November 2012 at 1:20 pm | Permalink

    Pfft …

  • 15
    Ian
    Posted Thursday, 29 November 2012 at 2:42 pm | Permalink

    What does legal mean? Governments can and do make legal or illegal whatever activities they wish. We should really focus on what is right and just, not what is legal. The hounding of Wikileaks and Bradley Manning is certainly not right nor just but many of the acts exposed by them are criminal by any definition.

  • 16
    Person Ordinary
    Posted Thursday, 29 November 2012 at 3:31 pm | Permalink

    Ha … Julia Gillard called Tony Abbott’s bluff, and he put his cards on the table - he had nothing, not even a pair of deuces. Abbott failed

  • 17
    ellas ilios
    Posted Monday, 3 December 2012 at 2:35 am | Permalink

    Please help promote this link wherever you can; if you believe in freedom of expression and freedom of the press.

    Julian Assange for the Nobel prize for freedom of the press:

    (Please type 3w).avaaz.org/en/petition/Juli­an_Assange_for_Nobel_prize_Fre­edom_of_the_Press/

    Lets see how “Noble” the Norwegians and their righteous Swede neighbors are or claim to be, since they offered Obama the Nobel peace prize!

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