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It’s possible that I shall make an ass of myself. But in that case one can always get out of it with a little dialectic. I have, of course, so worded my proposition as to be right either way (K.Marx, Letter to F.Engels on the Indian Mutiny)
Julian Assange is a polarising personality. Admired by many for his work as a whistle-blower, Assange is famously loathed by other people who still hold him accountable for the sexual assault charges that the Swedish authorities finally dropped back in November 2019. All along, Assange and his legal team argued that the Swedish prosecution had the ultimate aim of getting him extradited back to the United States. At the time, Assange’s critics claimed that those fears of extradition were merely an excuse to evade prosecution in Sweden.
Well, it turns out that Assange’s fears about extradition were soundly based. The US continues to seek his extradition to face charges under the US Espionage Act that on conviction carry up to 175 years in prison. Last week – on December 10, Human Rights Day! - the UK courts took a giant step to making that outcome possible. The High Court overturned a previous ruling that Assange’s health and likely treatment (solitary confinement in a US Supermax facility) were sufficient grounds for refusing his extradition.
Not any more. After receiving cross-your-heart promises from the US (a) that Assange, if convicted, would have his physical and mental health needs adequately met and (b) that he might not be sent to a Supermax and might be allowed to serve some of his sentence in an Australian prison, the same UK judge who had made the earlier decision changed his mind, and gave the extradition the green light. This ruling will now be appealed to the UK Supreme Court where – hopefully – the wider issues raised by his case might be revisited. It will take at least two years to go through this process, during which time Assange will continue to be held in Britain’s Belmarsh prison. Assange has now spent almost ten years in confinement, after he first sought refuge in Ecuador’s embassy in London in 2012.
For those hung up on Assange’s celebrity status – hero or villain, altruist or narcissist? – His personality traits are beside the point. His prosecution, imprisonment and extradition proceedings amount to a wide-ranging attack on freedom of speech, on press freedom and on the ability of the media to hold governments to account. As the Guardian recently pointed out, the High Court decision is not only a blow for his family and friends, who fear he would not survive imprisonment in the US. It is also a blow for all those who wish to protect the freedom of the press:
The case against him relates to hundreds of thousands of leaked documents about the Afghanistan and Iraq wars, as well as diplomatic cables, which were made public by WikiLeaks working with the Guardian and other media organisations. They revealed horrifying abuses by the US and other governments which would not otherwise have come to light
Assange’s alleged “crime” was to publish on Wikileaks a trove of documents and cables obtained by Chelsea Manning, a US soldier stationed in Iraq. The material included evidence of war crimes committed by US forces in Iraq and Afghanistan. The diplomatic cables contained hundreds of examples of US diplomats being engaged in clandestine activities without the knowledge or consent of the public at home, or in the countries affected. The public interest served by revealing such activities should be obvious. Revealing the atrocities, lies and deceptions of the powerful is what journalism exists to do, in a free society.
Uniquely though, Assange has been prosecuted for doing so, as the American Civil Liberties Union pointed out in 2019:
For the first time in the history of our country, the government has brought criminal charges under the Espionage Act against a publisher for the publication of truthful information. This is a direct assault on the First Amendment.
The Columbia Journalism Review made the same point a year ago:
…This case is nothing less than the first time in American history that the US government has sought to prosecute the act of publishing state secrets, something that national security reporters do with some regularity. While many of the charges [contained in the Assange indictment] involve conspiracy or aiding and abetting, three counts are based on “pure publication”—the argument that Assange broke the law just by posting classified documents on the Internet.
And furthermore:
Read literally, the Espionage Act criminalizes the solicitation, receipt, and publication of any government secret, not just the names of informants. The Justice Department has long taken the position that it can prosecute the act of publishing classified information. But it has not done so, until now, because of concerns that it would open a Pandora’s box of media censorship.
With Assange, Pandora's box has now been opened. If Assange can be prosecuted for publishing leaked information – on the grounds it was “stolen” and because the disclosures (in the state’s opinion) damaged “ national security” then any other journalist is at risk of the same fate for doing their job. The CJR article gives an interesting example of how these things used to be handled. In the mid 1970s, the Ford administration decided not to prosecute the investigative journalist Seymour Hersh for revealing (in a front page New York Times story) the full details of a secret US submarine programme. On that occasion, the US Justice Department chose to go straight to the NYT publishers and quietly remind them it would be in everyone’s best interests if they took national security more seriously next time around.
Thankfully, the Internet has made those sort of cosy arrangements impossible. Yet if Assange is successfully extradited, the precedent cannot avoid having a chilling effect on any revelations about government wrong-doing, given that the documents proving it will almost certainly belong to the state. The evidence will always have been “stolen” and “national security” is a conveniently elastic term. Truth and the public interest don’t provide any defence at all. Governments can always claim that what the public may be interested in isn’t always in their best interest to know.
To date, the Australian government has refused to make any critical comment about this ongoing abuse of the legal process to prosecute/persecute one of its citizens abroad. This silence allegedly, is out of “respect” for the legal proceedings. No doubt, the New Zealand government would use the same excuse to avoid taking a stand. Let the court process run its course etc. etc.
Yet only last week PM Jacinda Ardern participated in an online democracy summit hosted by US president Joseph Biden, in which Biden posed as a sterling defender of press freedom:
Opening his Summit for Democracy this week, Joe Biden urged his guests to “stand up for the values that unite us”, including a free press. The US president boasted of his new initiative for democratic renewal, including measures to support an unfettered and independent media: “It’s the bedrock of democracy. It’s how the public stay informed and how governments are held accountable. And around the world, press freedom is under threat.”
You bet it is, including by the Biden White House.(At the same online gathering US Secretary of State Anthony Blinken described a free press as an ‘’indispensable” part of a modern democracy.) With those fine words still ringing in her ears, Ardern surely has a mandate to remind Biden that the US needs to practice what it has just preached – by- for instance, dropping the Assange prosecution.
There’s more. Over the course of the past two decades, the Clark and Ardern governments have made much of New Zealand’s reliance on a rules based international order based on shared norms. One of those norms that has existed for the best part of 200 years, is that you don’t extradite people for offences of a political nature, and (especially) you don’t send them back to where they will be treated inhumanely, for actions and expressions arising from their political opinions.
This is a platform readily available to Ardern to comment on the Assange case. Supposedly we look to the United Nations to take the lead in establishing and defending the rules-based international order. Well, in the Revised Draft Model for Extradition Law that the UN recommends that its member states should adopt, Articles 3a, 3b, and 3f say this:
Article 3: MANDATORY GROUNDS FOR REFUSAL
Extradition shall not be granted in any of the following circumstances:
(a) If the offence for which extradition is requested is regarded by the
requested State as an offence of a political nature….
(b) If the requested State has substantial grounds for believing that the
request for extradition has been made for the purpose of prosecuting or
punishing a person on account of that person's race, religion, nationality, ethnic
origin, political opinions, sex or status, or that that person's position may be
prejudiced for any of those reasons; [bolded emphasis mine]
(f) If the person whose extradition is requested has been or would be
subjected in the requesting State to torture or cruel, inhuman or degrading
treatment or punishment or if that person has not received or would not receive
the minimum guarantees in criminal proceedings, as contained in the
International Covenant on Civil and Political Rights, article 14…
Sure, this is only a model treaty. No-one has signed it. Yet it strongly indicates what principles with respect to extradition law that the UN wants and expects its member states to adopt and uphold. My point being, our declared support for a rules based international order give us grounds to urge the US to cease its attempts to extradite Assange - because (contrary to UN principles) that extradition is clearly for an offence of a political nature, is held to be motivated by his political opinions, and will result in degrading and inhumane treatment within the US prison system.
Ultimately, if it truly believes in the UN and the international rule of law, New Zealand should not be standing passively on the side-lines while an injustice of this magnitude is being perpetrated - especially given the precedent that Assange’s conviction and continued imprisonment has for the role of the media, here and abroad.
Footnote One: The US government offensive against leakers and journalists who publish leaked information did not begin with Assange, even though his case has taken that campaign to new heights. Barack Obama was the main offender:
President Barack Obama, in fact, set a record for any president with his number of prosecutions against leakers using the Espionage Act. Some observers fear that Obama’s crackdown on leaks paved the way for Trump to do the same.
Footnote Two: Over the years, only a handful of US soldiers have been convicted for war crimes committed during service in Iraq or Afghanistan. See here and also here and also here for some of those examples. Even on the even rarer occasions when a conviction results, the punishment has often been of little deterrent value. For example : the group of US soldiers eventually prosecuted for prisoner torture and maltreatment at Bagram air base in Afghanistan were either acquitted, or fined and demoited, or in the most extreme case, imprisoned for five months.
In a couple of instances (eg Sgt Clint Lorance and Navy SEAL Eddie Gallagher) the uniformed murderers in US war zones abroad were pardoned by US President Donald Trump. The rarity of these prosecutions (and the issuing of a presidential pardon to someone as noxious as Gallagher) underlines the double standard being displayed by the dogged US pursuit of Assange:
As Agnès Callamard, secretary general of Amnesty International, has noted: “Virtually no one responsible for alleged US war crimes committed in the course of the Afghanistan and Iraq wars has been held accountable, let alone prosecuted, and yet a publisher who exposed such crimes is potentially facing a lifetime in jail.”
On the evidence, the US regards the publishing of the evidence of its war crimes to be a worse offence than committing such crimes in the first place.
Footnote Three : There’s a lucid brief history here of the “political offence” exemption in extradition requests, and of the three main ways- the US, the UK and the Swiss models – that the exemption has evolved over the centuries.
Footnote Four : You might be wondering why Julian Assange can be held liable for the content on Wikileaks, when the famous section 230 ‘safe harbour ‘provision (Available under US telecommunications law), protects other online platforms like Facebook and Youtube from legal liability for the content they carry, and regardless of any harms caused by that content. Moreover, the case law on section 230 extends that safe harbour protection extraterritorially, regardless of where the Wikileaks “head office” (if there is such a thing) is located.
The difference seems to depend on the “stolen” status of the Wikileaks content, and the “national security” harms allegedly caused. Clearly though, the disclosures by Wikiieaks were in the public interest, and it is open to argument as to whether in the long run they did more good than harm to America’s genuine national security concerns. All too often, government use the claim of “national security” like a blanket thrown over a parrot cage, with the aim being to keep the bird in the dark, and silent.
UPDATED
Julian Assange appeals in ‘most important press freedom case in the world’
A court will decide if Julian Assange may appeal extradition to the US, where relatives say he could die in jail.
By John Psaropoulos
Published On 20 Feb 2024
London’s High Court has scheduled two days of hearings on Tuesday and Wednesday to decide whether WikiLeaks founder Julian Assange may appeal a United States request for extradition to stand trial on espionage charges.
Those charges carry maximum penalties of 175 years, but the real danger, says Assange’s wife Stella, is that he may suffer an inadvertent death penalty instead.
“His health is in decline, physically and mentally,” Stella Assange recently told reporters. “His life is at risk every single day he stays in prison, and if he’s extradited, he will die.”
If Wednesday’s decision goes against Assange, his legal team plans to appeal to the European Court of Human Rights – though a favourable ruling there may not come in time to stop an extradition.
Assange will not attend court due to illness, his lawyers said on Tuesday.
A British judge agreed in January 2021, ruling he should not be extradited to the US because he was likely to commit suicide in near total isolation.
“I find that the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America,” judge Vanessa Baraitser said.
But the US has continued to press for his extradition.
Julian Assange begins last-ditch battle to stop extradition to US
Sam Tobin and Michael Holden
Feb 20, 2024,
"Julian needs his freedom and we all need the truth," Julian Assange's wife Stella told protesters in London on Tuesday.
WikiLeaks founder Julian Assange is about to begin what could be his last chance to stop his extradition from Britain to the United States after more than 13 years battling the authorities in the English courts.
US prosecutors are seeking to put Assange, 52, on trial on 18 counts relating to WikiLeaks’ high-profile release of vast troves of confidential US military records and diplomatic cables.
They argue the leaks imperilled the lives of their agents and there is no excuse for his criminality.
Assange’s supporters hail him as an anti-establishment hero and a journalist, who is being persecuted for exposing US wrongdoing.
Outside the High Court in London, a large, noisy crowd gathered, chanting “Only one decision, no extradition”.
“We have two big days ahead. We don’t know what to expect, but you are here because the world is watching,” Assange’s wife Stella told the crowd.
“They have to know they can’t get away with this. Julian needs his freedom and we all need the truth.”
Assange’s legal battles began in 2010, and he subsequently spent seven years holed up in Ecuador’s embassy in London before he was dragged out and jailed in 2019 for breaching bail conditions.
He has been held in a maximum-security jail in southeast London ever since, even getting married there.
Britain finally approved his extradition to the US in 2022 after a judge initially blocked it because concerns about his mental health meant he would be at risk of suicide if deported.
His lawyers will try to overturn that approval at a two-day hearing in front of two judges in what could be his last chance to stop his extradition in the English courts.
They will argue that Assange’s prosecution is politically motivated and marks an attack on free speech, as the first time a publisher has been charged under the US Espionage Act.
Assange’s supporters include Amnesty International, media groups that worked with WikiLeaks and politicians in his country of birth Australia, including Prime Minister Anthony Albanese, who last week voted in favour of a motion calling for his return to Australia.
If Assange wins this case, a full appeal hearing will be held to again consider his challenge.
If he loses, his only remaining option would be at the European Court of Human Rights (ECHR) where he has an appeal lodged pending the London ruling.
Speaking last week, Stella Assange said the decision was a matter of life and death and his lawyers would apply to the ECHR for an emergency injunction if necessary.
“His health is in decline, physically and mentally,” she said. “His life is at risk every single day he stays in prison – and if he is extradited he will die.”
Assange’s brother Gabriel Shipton compared the WikiLeaks founder with Alexei Navalny, the Russian opposition activist who died in prison on Friday while serving a three-decade sentence.
WikiLeaks first came to prominence in 2010 when it published a US military video showing a 2007 attack by Apache helicopters in Baghdad that killed a dozen people, including two Reuters news staff.
It then released thousands of secret classified files and diplomatic cables that laid bare often highly critical US appraisals of world leaders from Russian President Vladimir Putin to members of the Saudi royal family.
-Reuters, with AP
Wikileaks founder Julian Assange's final bid
to contest extradition to US begins amid
protests
Assange vs. America, again
WikiLeaks founder Julian Assange arrives at the Westminster Magistrates Court, after he was arrested in London, Britain April 11, 2019.
The legal saga of WikiLeaks founder Julian Assange neared its end Monday as Britain's High Court considered his final appeal of a U.S. extradition request.
Facing 17 espionage charges and one for computer misuse over the 2010 publication of classified war documents, the Australian native asserts he acted as a journalist and is protected by the First Amendment. His supporters, including members of the Australian Parliament, have called for his release on legal and humanitarian grounds.
Why has this case dragged on so long? In 2012, Assange sought sanctuary in Ecuador's London embassy to avoid extradition to Sweden on rape charges. In 2019, Ecuador revoked asylum, and UK authorities detained Assange in Belmarsh Prison for bail evasion. While Sweden retracted its sex crimes accusations, the US filed espionage charges in 2019 and sought Assange’s extradition — a move he has resisted, citing suicide risks and declining health.
If convicted, the 52-year-old Assange faces a possible 175-year sentence, though American officials claim the figure would be much lower. Assange’s spouse Stella argues the case is a political witch hunt, asserting, “If he’s extradited, he will die.”
What’s next? The UK court will hear the case for two days. If it greenlights extradition, Assange’s legal team may try to get an emergency injunction from the European Court of Human Rights.“The right of journalists to report the facts that governments and corporations don’t wish to have revealed will be virtually criminalised if the extradition of Assange is successful.”
By John Rees
Julian Assange’s very last chance to escape extradition to the US will happen this week in the Royal Courts of Justice.
There could not be more at stake in a single court case than there is in the Assange case. The right of journalists to report the facts that governments and corporations don’t wish to have revealed will be virtually criminalised if the extradition of Assange is successful.
The continued persecution of Assange, who has just spent his fifth Christmas in Belmarsh prison, is part of a wider attack on civil liberties by the Tories.
The government are implementing greater powers for the police to curb political protest, a raft of anti-union legislation which will make it virtually impossible to organise a legal and effective strike, a new official secrets act, and new limitations on freedom of speech.
Success for the Tories in extraditing Julian Assange will embolden them in every other attack they are making on civil liberties and trade union rights. That’s why its in the interest of every trade unionist, everyone who cares about preserving civil liberties, to join the protests outside the Royal Courts next Tuesday and Wednesday.
The National Union of Journalists, and the International Federation of Journalists which represents 300,000 members worldwide, are supporting the protests. So is Amnesty International. They have been joined by film directors Ken Loach and Oliver Stone, musicians Brian Eno, Lowkey, and Roger Waters, MP’s Jeremy Corbyn and Richard Burgeon, and the President of the Muslim Association of Britain, Raghad Al Tikriti.
There is now a growing consensus that the Assange extradition is a wholly unjustified assault on freedom of the press. Moreover, the revelations during the extradition hearings themselves have raised the gravest doubts about the legality of the process itself.
In the course of the court hearings, it has become public knowledge that a lead witness for the prosecution lied, that Assange and his lawyers were spied on by the CIA, and that the CIA discussed at the highest levels plans to abduct or assassinate Assange.
In any normal trial any one of these, let alone all of them, would have had the case dismissed.
That has not happened in the Assange case because there is too much at stake in the ‘special relationship’ between the US and UK governments. It is this above all else that marks the Assange case out as a political trial.
In a political trial it is crucial that political pressure outside the courtroom is brought to bear to halt the abuse of the legal system that takes place in the courtroom.
That’s why protest at the court is so important.