FROM THE RIGHT
Why Britain should not extradite Julian AssangeMary Dejevsky
THE SPECTATOR
10 December 2021
10 December 2021
WikiLeaks founder Julian Assange (Getty images)
Julian Assange is facing extradition after the high court ruled there is no legal impediment to him facing espionage charges in the United States. The decision would seem to justify the fears that the WikiLeaks founder and his supporters have long harboured: that the UK has essentially served as a holding pen until such time as a legal mechanism could be found to enable his dispatch to the US.
Assange has always believed that the US would not stop until it had exacted retribution. His former lawyer and now fiancee, Stella Morris, said after the latest ruling that they would appeal, if possible, to the UK Supreme Court. The extradition case now returns to Westminster Magistrates’ Court where it began. It remains to be seen if there will be further opportunities to appeal.
Whether or not you support Assange, however – and he is certainly a figure who attracts strong opinions for and against – there are compelling reasons why his extradition would be a travesty, not just of justice, but of the 'values' the UK repeatedly claims it represents.
The notoriously lop-sided nature of the UK-US extradition agreement makes it easier for the UK to grant US requests than the other way round
The case presented on behalf of Assange, which has now been rejected, rested on his mental state and the risk that he might take his life if subject to the special regime of a US top security prison. The narrowness of this case proved its weakness. And the judge found for the US, having secured assurances that he would not face any special regime while in a US prison and would be able to serve any sentence in his native Australia.
The first qualm would have to be how far those US undertakings can be trusted. Once Assange was transferred to US jurisdiction, he would be beyond any protection those UK court undertakings could give. It is not hard to imagine circumstances where they could be breached.
A second relates to the US justice system itself. Once a defendant is in the system, it is common practice for US prosecutors to threaten the defendant with a mammoth sentence in the effort to obtain a guilty plea – a plea bargain – they can notch up as a success. Unsurprisingly, this can lead to miscarriages of justice, especially where – as in Assange’s case – there are likely to be elements of emotion and vengeance that commonly attach to what would be presented as treachery.
Which leads to a third, and perhaps the most compelling, reason why Assange’s extradition should be resisted. The US initially applied for Assange’s extradition from the UK on the far less serious charge of computer misuse. Part of the point here might be that courts will often not extradite people on espionage charges, which they may regard as political. Assange and his lawyers always saw the lesser charge as a ploy to get him to the US, after which the charges could be augmented or changed at will.
It was only after time ran out on Sweden’s attempts to extradite Assange that the US upped its charge-sheet to add 17 charges of espionage. But the argument is as valid now as it was when the US did not include it in its initial application. The secrets that WikiLeaks placed in the public domain are highly political. They serve to discredit sections of the US military and US diplomacy. Does that make their release a crime? Should the UK be protecting the secrets of the US, major ally or not?
As presented, the espionage charges seem flimsy. It is hard to see how a US court could make them stick. The precedent consistently cited here is that of the so-called Pentagon Papers, published by the Washington Post and the New York Times in 1971. The Post, which could have been bankrupted or closed, after its publisher, Katharine Graham, took the decision to 'publish and be damned', was vindicated in what has been seen as a landmark ruling that protects a free press.
According to this, someone who divulges secrets they are contracted to keep has committed a crime, but anyone who subsequently publishes it or facilitates its publication has not, if its release can be judged to be in the public interest. This crucial distinction is one that endures to this day on both sides of the Atlantic. This is a vital protection for investigative journalists everywhere. If either the receipt or the publication of secret information in itself becomes a crime, the balance will have shifted significantly in the favour of the powers that be and against people’s right to know – and the journalist’s right, even obligation, to tell them.
These are all factors that should count against the UK extraditing Julian Assange to the US – and why, in the end, the UK Supreme Court, might rule against it, if the case were to get that far. But the notoriously lop-sided nature of the UK-US extradition agreement makes it easier for the UK to grant US requests than the other way round. There is also, of course, the equally lop-sided political and diplomatic relationship between the two countries, where refusing extradition to Assange could be seen as a tantamount to a hostile act. The auguries do not look good.
WRITTEN BY
Mary Dejevsky is a writer, broadcaster, and former foreign correspondent in Moscow, Paris and Washington.
THE SPECTATOR
11 December 2021,
Julian Assange in a police van, 2019 (photo: Getty)
You could almost hear the rejoicing in Whitehall on Friday morning when the High Court cleared the way for Julian Assange to be extradited to the US, rejecting a plea that he was too mentally frail. The man has, after all, been a thorn in the administration’s side for 11 years: 18 months contesting his rendition to Sweden, followed by seven embarrassing years holed up in the Ecuadorian embassy, and then two-and-a-half years in Belmarsh fighting extradition to the US on espionage charges.
But there is one disquieting feature. The offences he is charged with in the US are not ordinary charges of criminality, like the accusations he faced in Sweden, but are essentially state crimes: in this case espionage and the betrayal of US state secrets. Should we be giving our aid to other countries to enforce such laws?
When a regular system of extradition was introduced in Britain in 1870, it was regarded as axiomatic that the answer to this question had to be ‘No’. However willing we might be to cooperate with other countries in the suppression of ordinary crime, when it came to the dirty work of prosecuting subversion and state offences in their own back yard we refused to lift a finger to aid them. Not only did the 1870 law give the Home Secretary a final veto over any extradition; it positively forbade extradition for any offence ‘of a political character’.
Should we be giving our aid to other countries enforcing state crimes?
Two factors put an end to this humane regime. One was that it could help terrorists, as quickly became apparent after 1870. In 1890, for example, there was the cause célèbre of Angelo Castioni. A political activist, 1871 Paris commune veteran and upmarket Chelsea sculptor (he reputedly helped carve Princess Louise’s statue of Queen Victoria in Kensington Gardens), he showed his radicalism when on a visit to his native Switzerland he shot dead in cold blood a politician opposed to his ideas. After he returned to London, his extradition had to be refused.
The other factor was the EU a century later. That organisation’s European Arrest Warrant regime in 1989 demanded an entirely judicialised, almost rubber-stamp procedure which certainly precluded any inconvenient political offence exceptions.
The UK could have accommodated these factors quite easily, by restricting the summary EU procedure to EU states and limiting political offences to genuine state offences not involving terrorism like Castioni’s. Unfortunately, in a fit of illiberalism (and, one suspects, a certain amount of Europhilia) Douglas Hurd’s Home Office chose instead largely to assimilate its global extradition regime to the new European one. With the exception of a few states known to be inhumane, such as China and Iran, excluded from the scheme, all offences carrying a year or more in prison became extradition offences. The political offence exception went, as did the Home Secretary’s discretion. Extradition could be refused essentially only on human rights grounds, where political, racial or religious persecution was proved likely, or where someone had been formally granted refugee status under international law.
This has proved unfortunate, for a number of reasons.
First, whatever the need for international cooperation against terrorism, murder and fraud, this applies much less, if at all, to sedition and anti-state espionage. One might even say that one of the benefits of a system of nation states lies precisely in the limitation of state jurisdiction in such cases: a state is welcome to enforce its laws against subversion in its own territory, but has no legitimate reason to expect other states to help it do so. Put bluntly, however special our relationship with the US is, there is no reason we should necessarily help it enforce its espionage laws by returning Assange to be tried there. This is especially true since the acts alleged against Assange took place outside the US, and indeed the proceedings against him are controversial even there, having been attacked by (for example) the First Amendment Coalition as a threat to free speech.
Secondly, while it is true that one benefit of the political offence exception when it existed was that it helped prevent fugitives being returned to states likely to mistreat them – think the infamous King Bomba of the Two Sicilies in the nineteenth century, or in the twentieth century the Iron Curtain regimes – it was certainly not the only advantage of the exemption. It also provided a good informal system of protection for dissidents, who were essentially told that, whatever else might happen, they were protected against extradition. You may not agree with Julian Assange: you may regard Wikileaks as a thoroughly irresponsible outfit. But that is no reason to return him to the US, and certainly no reason to require him to return there without the Home Secretary having the power to stop it. (If you need evidence on this latter point, bear in mind that the United Kingdom earlier this year would have been bound to return a Catalan dissident then working at St Andrews University to Spain for punishment for sedition. She escaped rendition, but only because she skipped the country just in time.)
Nineteenth-century London life was much enriched by the discreet presence of European and other dissidents such as Louis Kossuth from Hungary, Giuseppe Mazzini from Italy and the anarchist Alexander Herzen from Russia. Why not replicate this today, not by formally granting legal residence rights (the international refugee system being as it is seriously open to abuse) but in a more limited way? For people like Julian Assange, the decent thing is to say not only that he can stay here as long as he behaves reasonably, but also that even if we do eject him we will never send him back to a country that wishes to punish him for a state crime.
WRITTEN BY
11 December 2021,
Julian Assange in a police van, 2019 (photo: Getty)
You could almost hear the rejoicing in Whitehall on Friday morning when the High Court cleared the way for Julian Assange to be extradited to the US, rejecting a plea that he was too mentally frail. The man has, after all, been a thorn in the administration’s side for 11 years: 18 months contesting his rendition to Sweden, followed by seven embarrassing years holed up in the Ecuadorian embassy, and then two-and-a-half years in Belmarsh fighting extradition to the US on espionage charges.
But there is one disquieting feature. The offences he is charged with in the US are not ordinary charges of criminality, like the accusations he faced in Sweden, but are essentially state crimes: in this case espionage and the betrayal of US state secrets. Should we be giving our aid to other countries to enforce such laws?
When a regular system of extradition was introduced in Britain in 1870, it was regarded as axiomatic that the answer to this question had to be ‘No’. However willing we might be to cooperate with other countries in the suppression of ordinary crime, when it came to the dirty work of prosecuting subversion and state offences in their own back yard we refused to lift a finger to aid them. Not only did the 1870 law give the Home Secretary a final veto over any extradition; it positively forbade extradition for any offence ‘of a political character’.
Should we be giving our aid to other countries enforcing state crimes?
Two factors put an end to this humane regime. One was that it could help terrorists, as quickly became apparent after 1870. In 1890, for example, there was the cause célèbre of Angelo Castioni. A political activist, 1871 Paris commune veteran and upmarket Chelsea sculptor (he reputedly helped carve Princess Louise’s statue of Queen Victoria in Kensington Gardens), he showed his radicalism when on a visit to his native Switzerland he shot dead in cold blood a politician opposed to his ideas. After he returned to London, his extradition had to be refused.
The other factor was the EU a century later. That organisation’s European Arrest Warrant regime in 1989 demanded an entirely judicialised, almost rubber-stamp procedure which certainly precluded any inconvenient political offence exceptions.
The UK could have accommodated these factors quite easily, by restricting the summary EU procedure to EU states and limiting political offences to genuine state offences not involving terrorism like Castioni’s. Unfortunately, in a fit of illiberalism (and, one suspects, a certain amount of Europhilia) Douglas Hurd’s Home Office chose instead largely to assimilate its global extradition regime to the new European one. With the exception of a few states known to be inhumane, such as China and Iran, excluded from the scheme, all offences carrying a year or more in prison became extradition offences. The political offence exception went, as did the Home Secretary’s discretion. Extradition could be refused essentially only on human rights grounds, where political, racial or religious persecution was proved likely, or where someone had been formally granted refugee status under international law.
This has proved unfortunate, for a number of reasons.
First, whatever the need for international cooperation against terrorism, murder and fraud, this applies much less, if at all, to sedition and anti-state espionage. One might even say that one of the benefits of a system of nation states lies precisely in the limitation of state jurisdiction in such cases: a state is welcome to enforce its laws against subversion in its own territory, but has no legitimate reason to expect other states to help it do so. Put bluntly, however special our relationship with the US is, there is no reason we should necessarily help it enforce its espionage laws by returning Assange to be tried there. This is especially true since the acts alleged against Assange took place outside the US, and indeed the proceedings against him are controversial even there, having been attacked by (for example) the First Amendment Coalition as a threat to free speech.
Secondly, while it is true that one benefit of the political offence exception when it existed was that it helped prevent fugitives being returned to states likely to mistreat them – think the infamous King Bomba of the Two Sicilies in the nineteenth century, or in the twentieth century the Iron Curtain regimes – it was certainly not the only advantage of the exemption. It also provided a good informal system of protection for dissidents, who were essentially told that, whatever else might happen, they were protected against extradition. You may not agree with Julian Assange: you may regard Wikileaks as a thoroughly irresponsible outfit. But that is no reason to return him to the US, and certainly no reason to require him to return there without the Home Secretary having the power to stop it. (If you need evidence on this latter point, bear in mind that the United Kingdom earlier this year would have been bound to return a Catalan dissident then working at St Andrews University to Spain for punishment for sedition. She escaped rendition, but only because she skipped the country just in time.)
Nineteenth-century London life was much enriched by the discreet presence of European and other dissidents such as Louis Kossuth from Hungary, Giuseppe Mazzini from Italy and the anarchist Alexander Herzen from Russia. Why not replicate this today, not by formally granting legal residence rights (the international refugee system being as it is seriously open to abuse) but in a more limited way? For people like Julian Assange, the decent thing is to say not only that he can stay here as long as he behaves reasonably, but also that even if we do eject him we will never send him back to a country that wishes to punish him for a state crime.
WRITTEN BY
Andrew Tettenborn is a writer and professor of law.
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