Human rights Opinion

Nervous wait for Assange to forestall U.S. extradition

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Stella Assange, Jennifer Robinson and Joseph Farrell outside the Royal Courts of Justice (image by Guy Smallman)

WikiLeaks founder Julian Assange awaits permission to appeal against extradition to the U.S., the possible consequences of which could lead to the death penalty. Sara Chessa reports for IA in London.

THE ASSANGE HEARING, which considered if Julian Assange can have permission to appeal against his extradition, closed on Wednesday (with huge concerns among commentators).

These were over the lack of assurances regarding further possible charges carrying the death penalty and the limited freedom of expression protections afforded in the UK. No date has been indicated for the ruling, but a deadline was given to the parties – 4 March – for submitting further material to the judges.

I have been following the Assange case in the British courts for five years and I have never seen the prosecution more visibly tense and exhausted by its own arguments than during the 20 and 21 February hearings. Not without reason. It must be challenging for the British prosecution agency, called upon to represent the U.S. Government in court, to pretend not to have heard witnesses dismantling one by one the specious lies pulled out of the hat by the U.S. Government from the publication of the Iraqi war diaries onwards.

Edward Fitzgerald KC, for the defence, started announcing that Julian Assange would not be present, not even via video link, as he was ill. Fitzgerald spoke of politically motivated accusations, describing them as a response to a media organisation that exposed state criminality. The man who was head of the CIA during Trump's presidency, Mike Pompeo, described WikiLeaks as a "hostile non-state intelligence agency". This phrase, for the defence, reflected the political nature of the charges of espionage and computer intrusion, amounting to a total of 175 years in prison.

When the military-industrial complex has plans that go against the interests of humanity through torture, extrajudicial arrests and arbitrary killings, the last thing they want to see is transparency. Who would ever support invasions like those carried out in Iraq and Afghanistan if the public is told how systematically so-called Western values are trampled underfoot?

John Shipton speaks outside the Royal Courts of Justice (image by Guy Smallman).

Hence, Assange and free investigative journalism have been aggressively targeted. A doggedness that has reached the highest level of inhumanity when, as recalled by Fitzgerald, the assassination of Assange was discussed at the highest levels of the Trump Administration. Trump himself, as emerged from the case brought in Spain against the Ecuadorian Embassy surveillance agency, ordered that he be presented with options on how to pursue Assange's death.

However, for the prosecution, the case against the Australian journalist is based on the argument that he was negligent as a journalist by releasing unredacted documents and, in doing so, went beyond the everyday activities of reporters by soliciting Chelsea Manning to provide information. Here is an example of what I said at the beginning: lawyers representing the U.S. Government are obliged to pretend that their claims have yet to be debunked by the authoritative witnesses in the first instance trial.

The first of these two lies were exposed by investigative journalist John Goetz, who told the Court that WikiLeaks had removed the names of local Afghan and Iraqi collaborators of the U.S. military. Such a process also caused WikiLeaks' media partners' frustration with the publication delay.

What about the second lie? Mark Feldstein, a witness in the trial at first instance and a professor at the University of Maryland's journalism department, told the court in 2020 that, within American journalism courses, students are regularly taught to interact with sources "to obtain classified documents".

This statement allows us to get into another critical point: the charges against Assange are unprecedented. The defence explained the relevance of Article 7 of the European Convention on Human Rights (ECHR), which protects citizens against arbitrary and unforeseeable charges. 

The defence lawyers pointed out:

"The initial judge made a mistake by underestimating how unprecedented the charge against Julian Assange was." 

The question is straightforward: how can one not grant leave to appeal to a publisher brought up on charges that represent a veritable "crossing of new legal frontiers"?

Article 10 of ECHR, concerning freedom of speech, was also a key point of discussion. "Article 10 does not confer immunity from criminal law," argued the prosecution, which claims it does not consider Chelsea Manning a whistleblower, besides not considering Assange a journalist.

As highlighted by defence lawyer Mark Summers KC, it is extraordinary that the respondents, the U.S., had discussed the limits of responsible journalism for hours "without mentioning that the revelations at issue here were state crimes of the highest order".

“The European Court for Human Rights’ jurisprudence has evolved a great deal over the last decade,” Summers said, implying that the UK has not adapted to the new standards despite adhering to the convention on which the ECHR is based. “Chelsea Manning was guided by her conscience, and today, publishing materials related to national security is considered legal because universally recognised principles of free speech protect it,”

Summer added:

“Chelsea Manning was guided by her conscience and today, publishing materials related to national security is considered legal because universally recognised principles of free speech protect it.”

“If the ECHR were to review Manning's case today, it would recognise her as a whistleblower.” We should all take note of these statements to know how to respond when confronted by those who think that the field of national security should not be investigated by journalism.

According to Summers, the original judge did not balance the issue of people potentially endangered by WikiLeaks, which, in ten years, the prosecution has never been able to bring specific evidence and the public's right to know, which in this case, since it state crimes were involved, was crucial.

The judge asked whether there was supporting case law even in cases of unredacted documents — and this is the question on which the defence is likely to present further documentation.

The right to a fair trial, protected in Article 6 of the ECHR, was also mentioned. Analysing the statements of Gordon Kromberg, prosecutor of the Eastern Virginia district where Assange is indicted, it is clear that the protections of the U.S. Constitution's First Amendment will not apply to him.

Among possible consequences is the risk of moving towards the death penalty. Indeed, it was explained by the defence that although Chelsea Manning was acquitted of treason, she was repeatedly charged with this crime. Consequently, Assange could be charged with aiding treasonous acts.

Indeed, nothing prevents the United States from adding charges even after the extradition. And charges like that can carry the death penalty. In this regard, there was an interesting exchange between the judges and the Secretary of State for Home Department’s representative.

Justice Johnson asked the prosecutor if he accepted that some charges which might be added in the future could carry the death penalty. The lawyer said he accepted that risk in principle. Justice Johnson then asked whether there was a way to prevent the death penalty.

The prosecutor replied:

"It would be very difficult to offer assurances that prevent the death penalty from being imposed... However, this does not mean the Secretary of State was wrong [when she authorised extradition]."

Statements like the latter show how much the prosecution is grasping at straws, completely unable to give assurances that the death penalty will not be imposed under any circumstances. However, this is just a continuation of their usual sophistic game, consisting of insisting that the court must not consider the Extradition Treaty to make its decisions.

The Treaty, in fact, contains a prohibition against extradition on political grounds. The U.S. does not like this provision, so they prefer the court to rely only on the Extradition Act 2003, which does not contain the same prohibition. Fitzgerald had to repeat the brilliant answers he had already given during the trial in the first instance.

Since the U.S. "seeks extradition based on the UK-U.S. extradition treaty", which formed the basis of Julian Assange's detention, "there is no escaping the treaty".

While powerful peaceful protests are taking place to ask governments to call for the U.S. to drop the charges, on the legal front, we will have to wait for the verdict. Many hope that the UK can overcome its backwardness when it comes to Article 10 and freedom of information.

Sara Chessa is a UK-based independent journalist. You can follow Sara on Twitter @sarachessa1.

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