Faulty Assurances: The Judicial Torture of Assange Continues
Only this month, the near comatose US President, Joe Biden, made a casual, castaway remark that his administration was “considering” the request by Australia that the case against Julian Assange be concluded. The WikiLeaks founder has already spent five gruelling years in London’s Belmarsh prison, where he continues a remarkable, if draining campaign against the US extradition request on 18 charges, 17 incongruously and outrageously based on the US Espionage Act of 1917.
Like readings of coffee grinds, his defenders took the remark as a sign of progress. Jennifer Robinson, a longtime member of Assange’s legal team, told Sky News Australia that Biden’s “response, this is what we have been asking for over five years. Since 2010 we’ve been saying this is a dangerous precedent that’s being set. So, we certainly hope it was a serious remark and the US will act on it.” WikiLeaks editor-in-chief Kristinn Hrafnsson found the mumbled comment from the president “extraordinary”, hoping “to see in the coming days” whether “clarification of what this means” would be offered by the powerful.
On April 14, the Wall Street Journal reported that Canberra had asked their US counterparts whether a felony plea deal could be reached, enabling the publisher to return to Australia. “Prosecutors and a lawyer for Assange have discussed a range of potential deals, including those that include pleading guilty to a felony under the espionage law under which he was indicted, and those of conspiring to mishandle classified information, which would be a misdemeanor, people familiar with the matter have said.”
Last month, the UK High Court gave what can only be regarded as an absurd prescription to the prosecution should they wish to succeed. Extradition would be unlikely to be refused if Assange was availed of protections offered by the First Amendment (though rejecting claims that he was a legitimate journalist), was guaranteed not to be prejudiced, both during the trial and in sentence on account of his nationality, and not be subject to the death penalty. That such directions were even countenanced shows the somewhat delusionary nature of British justices towards their US counterparts.
On April 16, Assange’s supporters received confirmation that the extradition battle, far from ending, would continue in its tormenting grind. Not wishing to see the prospect of a full hearing of Assange’s already hobbled arguments, the US State Department, almost to the hour, filed the assurances in a diplomatic note to the Crown Prosecution Service (CPS). “Assange,” the US Embassy in London claimed with aping fidelity to the formula proposed by the High Court, “will not be prejudiced by reason of nationality with respect to which defenses he may seek to raise at trial and at sentencing.”
Were he to be extradited, “Assange will have the ability to raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the Constitution of the United States.” An obvious caveat, and one that should be observed with wary consideration by the High Court judges, followed. “A decision as to the applicability of the First Amendment is exclusively within the purview of the US Courts.”
The US embassy also promised that, “A sentence of death will neither be sought nor imposed on Assange. The United States is able to provide such assurance as Assange is not charged with a death-penalty eligible offense, and the United States assures that he will not be tried for a death-eligible offense.” This undertaking does not dispel the threat of Assange being charged with additional offences such as traditional espionage, let alone aiding or abetting treason, which would carry the death penalty.
In 2020, Gordon Kromberg, the chief Department of Justice prosecutor behind the case, told the Central Criminal Court of England and Wales that the US “could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information.” There was also the likelihood that Assange, in allegedly revealing the names of US intelligence sources thereby putting them at risk of harm, would also preclude the possibility of him relying on such protections.
That the zealous Kromberg will be fronting matters should Assange reach US shores is more than troubling. Lawyers and civil rights activists have accused him of using the Eastern District Court of Virginia for selective and malicious prosecutions. As Murtaza Hussain of The Intercept observed with bleak accuracy in July 2021, “[r]ather than being pushed into obscurity by these efforts, today he is serving as a key figure in one of the most important civil liberties cases in the world.”
The High Court also acknowledged Kromberg’s views at trial regarding the possibility that the First Amendment did not cover foreign nationals. “It can fairly be assumed that [Kromberg] would not have said that the prosecution ‘could argue that foreign nationals are not entitled to protections under the First Amendment’ unless that was a tenable argument that the prosecution was entitled to deploy with real prospect of success.” These latest assurances do nothing to change that fact.
A post from Assange’s wife, Stella, provided a neat and damning summary of the embassy note. “The United States has issued a non-assurance in relation to the First Amendment, and a standard assurance in relation to the death penalty. It makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a US citizen. Instead, the US has limited itself to blatant weasel words claiming that Julian can ‘seek to raise’ the First Amendment if extradited.”
Whether the justices are duly satisfied by the latest diplomatic manoeuvre, one non-binding in any tangible or true sense on prosecutors and judges in the US, awaits testing in the hearing on May 20. For Assange, the wheels of judicial torture have been prolonged.
The Farce of Diplomatic Assurances
The United States has now, on the face of it, produced the Diplomatic Note giving the two assurances required by the High Court to allow the extradition of Julian Assange to proceed. The assurance that Julian Assange will be allowed to rely on the First Amendment in his defence is a blatantly weak piece of sophistry.
You can read my analysis on the High Court judgment of Assange’s right to an appeal here.
Let me dispense with the assurance against the death penalty. I am sure it will be accepted by the court. The USA does not need to execute Julian, it can incarcerate him in a tiny concrete tomb for life, under extreme sensory deprivation, as a terrible half living warning to any journalist who might reveal their crimes.
Should that ever become inconvenient, he can be Epsteined or Seth Riched at any moment. Remember this is a government that plotted to kidnap and/or assassinate him, as pled and not denied in court.
The assurance required on First Amendment protection is being misunderstood by almost everybody reporting it, and the US Diplomatic Note seeks to take advantage of the confusion.
The High Court took the view that the First Amendment provides the same protections as Article X of the European Convention on Human Rights, and therefore Assange’s Convention rights will be protected if he is allowed to plead the First Amendment as a defence before a US court. The court did not ask for an assurance that such a plea would succeed. Article X of the ECHR is itself absolutely shot through with authoritarian national security and other exceptions.
The assurance on which the High Court did insist was that such a plea could not be struck down on the grounds of Assange’s nationality. That would contradict the separate ECHR provision against discrimination by nationality. The US Diplomatic Note has failed genuinely to address this point: but it pretends to do so.
The US prosecutor in an affidavit to the UK court had already stated that Assange may be barred from First Amendment protection because he was a foreign national who had acted abroad. Mike Pompeo had also stated this officially. The principle is plainly articulated by the Supreme Court in the case of USAID vs Open Society:
THE CRUCIAL “SEEK TO”
The United States was therefore simply unable to state that Julian Assange will be able to make a First Amendment defence, because the judge, following the Supreme Court precedent, is almost certainly going to disallow it on grounds of nationality.
The Diplomatic Note therefore states that Assange may seek to raise a First Amendment defence without prohibition on grounds of nationality. This means precisely that his lawyers are permitted to say:
“My client wishes to claim the protection of the First Amendment for freedom of speech”
This is “seeking to raise” it.
The judge will immediately reply:
“The First Amendment does not apply to your client as a foreign national acting abroad, as established by the US Supreme Court in USAid vs Open Society”.
That is consistent with the actual operative phrase in the US Diplomatic Note: “A decision as to the applicability of the First Amendment is entirely within the purview of the US Courts”.
On 20 May there will be a hearing to determine whether this non-assurance is adequate to protect Julian Assange from discrimination on grounds of nationality and permit the extradition to proceed.
Now being a reasonable person, you doubtless are thinking that it is impossible that such a flimsy confection of legal sleight of hand could ever be accepted. But if so, dear reader, you have no idea of the corruption of the stool pigeons disguised as British judges.
Who would think that they could have ruled that the UK/US Treaty has legal force to extradite Julian Assange, but that Article IV of the Treaty excluding political offence strangely does not have legal force?
Who would have thought that they could have ruled that the US government spying on his attorney/client legal conferences and seizing his legal papers did not invalidate the proceedings?
Who would have thought they could have ruled that the US government plot to kidnap or murder him is irrelevant, because if he is extradited the US government will have no further need to kidnap or murder him?
I could go on. I shall be very surprised if the High Court judges following the 20 May hearing do not rule that the right to ask not to be discriminated against on grounds of nationality (and be denied) is sufficient protection against discrimination by nationality.
They really are that shameless.
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