International Policy Digest

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World News /02 Mar 2020
03.02.20

Julian Assange Against the Imperium: Extradition Hearings

Editor’s note: As the author adds more entries this post will be amended.

Day Four of Extradition Hearings

Thursday, February 27, Woolwich Crown Court. The first round of extradition hearings regarding Julian Assange’s case concluded a day early, to recommence on May 18th. It ended on an insensible note very much in keeping with the woolly-headed reasoning of Judge Vanessa Baraitser, who is of the view that a WikiLeaks publisher in a cage does not put all heaven in a rage. On Wednesday, Assange’s defence had requested whether he would be able to leave the confines of his glass cage and join his legal team. As Assange had explained in response to his nodding off during proceedings, “I cannot meaningfully communicate with my lawyers.” There was little point in “asking” if he could follow proceedings without enabling his participation.

This was not a point that fell on reasonable ears. The judge felt it came too close to a bail application, and was initially refused as posing a potential risk to the public. Gibberish was duly thrown at counsel for both sides, with “health and safety,” “risk assessment” and “up to Group 4” featuring as meaningless terms on the obvious: that Assange could pose no threat whatsoever, as he would be in the continuous company of security guards. As former UK diplomat Craig Murray observed, “She started to resemble something worse than a Dalek, a particularly stupid local government officer of a very low grade.”

According to the judge, to permit such a measure of access between Assange and his team effectively constituted a departure from court custody, a striking nonsense of Dickensian dimensions. Not even the prosecution felt it unreasonable, suggesting that one need not be so “technical” in granting such applications.

Thursday’s proceedings reaffirmed Judge Baraitser’s stubborn position. Her first gesture was to permit Assange a pair of headphones to better enable him to hear the proceedings, followed by a brief adjournment to see if his hearing had, in fact, improved. Assange was unimpressed, removing them after 30 minutes.

Her stretched reasoning found Assange sufficiently accessible to his lawyers despite his glassed surrounds; he could still communicate with them via notes passed through the barrier. “It is quite apparent over the past four days that you have had no difficulty communicating with your legal team.” The judge was willing to permit Assange a later start in proceedings to enable a meeting with the legal team and adjourn should the defence wish to meet their client in a holding cell.

That so complex a case as extradition can be reduced to sporadic notes passed to legal counsel and staggered adjournments suggests the continued hobbling of the defence by the authorities. Its invidiousness lies in how seemingly oblivious the judicial mind is to the scope of the case, complexity reduced to a matter of meetings, small points of procedure and law.

The defence team submitted that the process of consultation suggested by the judge unduly prolonged proceedings, rendering them cumbersome and insensible. The court might have to adjourn ever three minutes for a 20-minute break. To constantly take Assange to and from his holding cell was would unnecessarily lengthen proceedings and complicate matters. Judge Baraitser was dismissive of such argument, claiming that the defence was merely exaggerating.

The legal issues discussed on the fourth day centred on quibbling over the issue of espionage and its nexus with political activity. Espionage, suggested James Lewis QC for the US-driven prosecution, need not be political. Nor did it seem that Assange was intent on bringing down the US government. “It can’t possibly be said that there is a political struggle in existence between the American government and opposing factions.”

Lewis, as has been his approach from the start, preferred a more restrictive interpretation about what a “political” offence might be, notably in connection with extradition. “Extradition is based on conduct, it is not anymore based on the names of offences.” In a rather crude, end-of-history line of thought, Lewis argued that political offences were “dated” matters, hardly applicable to modern societies which no longer see dissidents upholding the values of liberal democracy. (It seems that the tree of liberty, according to the US prosecution, no longer needs urgent refreshment.)

Besides, argued Lewis, the court did “not need to resolve these issues, but they demonstrate that any bare assertion that Wikileaks was engaged in a struggle with the US government was in opposition to it or was seeking to bring about a policy change would need to be examined far more closely.”

That is exactly what the defence contended. Assange’s core activities in publishing had been based on altering US policy, with Iraq and Afghanistan being key theatres. “Why was he seeking to publish the rules of engagement?” posed the defence. “They were published to show that war crimes were being committed, to show they breached their own rules of engagement.” Ditto the publication of the Guantanamo files, an act done to reveal the extent of torture being undertaken during the course of the “war on terror.” All these, contended Edward Fitzgerald QC for the defence, did change government policy. “WikiLeaks didn’t just seek to induce change, it did induce change.”

The documentary record on Assange’s political activity in this regard is thick, much of it from the contentions of US officials themselves. The US State Department preferred to see him, as former spokesman PJ Crowley did in 2010, a “political actor” with “a political agenda,” rather than being a journalist.

Incidentally, Crowley’s link with WikiLeaks has a curious end, with his resignation in 2011 following comments made about the treatment of Chelsea (then Bradley) Manning at the Quantico marine base in Virginia. “What is being done to Bradley Manning,” he claimed at an MIT seminar that March, “is ridiculous and counterproductive and stupid on the part of the department of defence.” Not an entirely bad egg, then.

Day Three of Extradition Hearings

Wednesday, February 26, Woolwich Crown Court. Today, the focus shifted to the protagonist himself and the nature of the US-UK Extradition Treaty of 2003, a contentious document that shines all too favourably for US citizens.

Julian Assange, whose deteriorating condition has been noted for months by psychologists, doctors and UN Special Rapporteur on torture Nils Melzer, has been making a fist of it in the dock, despite being in Kafkaesque isolation. Exhaustion, however, is manifest. Judge Vanessa Baraitser has been keeping an eye on Assange’s demeanour, prodding his lawyers at one point to inspect him. His eyes had closed, his attention seemingly wavering. A point of permanent frustration for the WikiLeaks founder has been the din the hearings are causing and the distance, physical and symbolic, from his legal team. “I am as much a participant in these proceedings I am at Wimbledon.”

The structural impediments he has had to face have been profound, a point he was keen to make to the bench. “I cannot meaningfully communicate with my lawyers. There are unnamed embassy officials in this courtroom. I cannot communicate with my lawyers to ask them for clarifications without the other side seeing.”

The singular nature of Assange’s case has not struck the judge as sufficient grounds to accept special measures. The defence team insists, not unreasonably, that legal advice given to him be kept privileged. This is a particularly sore point, given the surveillance efforts conducted by UC Global SC in Assange’s place of abode for some seven years, London’s Ecuadorean embassy. This involved audio and film footage on lawyers visiting and discussing case matters with Assange relayed to servers accessible to the Central Intelligence Agency. “There has been enough spying on my lawyers already. The other side has about 100 times more contact with their lawyers per day. What is the point of asking if I can concentrate if I cannot participate?”

To these points the judge remained dismissive, annoyed at his intervention in the absence of testifying. “I can’t make an exception in your case.” A brief recess did follow, permitting Assange to leave the dock for a backroom consultation with his legal team. True to form in this entire charade, security officers were in their company.

The defence team then attempted to convince the bench to adjust future seating arrangements which would permit Assange to sit with them. This led to a technical lunacy: Did the request, pondered the judge, constitute a bail application in which Assange would technically be out of the court’s custody? The legal team representing the United States did not object, as security officers would be present on either side of him. “I’m not sure it’s so technical as that,” came the assessment from James Lewis QC. The judge, torn by convention and legal minutiae, was tart in response. “I’m not you’re right Mr. Lewis.” An application will be heard to that effect on Thursday, though Lewis did make it clear that any bail application would be opposed.

As for the extradition treaty itself, Article 4 stipulates that, “Extradition shall not be granted if the offense for which the extradition is requested is a political offense.” The team representing the US government suggested that the judge have recourse to substantive UK domestic law, not the Treaty itself. Whether Assange was wanted for political reasons or not was irrelevant as he was “not entitled to derive any rights from the [US-UK Extradition] Treaty.”

The prosecution effectively relied on a peculiarity of the Westminster system: the Treaty, ratified in 2007, had not been incorporated into UK domestic law. That domestic law can be found in the Extradition Act 2003, which does not feature political offenses as a bar to extradition. “There’s no such thing as a political offense in ordinary English law,” something that only arose in the context of extradition.

Assange’s team took issue with the contention: the Extradition Treaty as ratified in the US in 2007, in not removing the political offense provision, was intended to have legal effect. “It is an essential protection,” argued Edward Fitzgerald QC, “which the US puts in every single one of its extradition treaties.” It followed that, “Both governments must therefore have regarded Article 4 as a protection for the liberty of the individual whose necessity continues (at least in relations between the USA and the UK).” While the 2003 Extradition Act did not include a political offence bar, “authority establishes that it is the duty of the court, not the executive, to ensure the legality of extradition under the terms of the Treaty.” This placed an onus on the judge, submitted Fitzgerald, to follow a practice set by over a century of extradition treaties which consider the political offence exemption.

Resort should also be had to the Magna Carta and Article 5 of the European Convention on Human Rights (the “right to liberty and security” provision) to reach a conclusion that extraditing an individual for a political offence would constitute an abuse of process.

The defence also turned to the issue of espionage itself, arguing that there was little doubt that it was political in nature, or, as Fitzgerald contended, “a pure political offence” within the meaning of the US-UK Extradition Treaty and relevant case law. The conspiracy to commit computer intrusion, the 18th charge being leveled at Assange, also suggested that it be treated as an espionage offence. In fact, the entire case and effort against Assange had been political from the start, with US politicians, commentators and members of the media branding him “hostile” and “treasonous” despite not being a US citizen.

Fitzgerald also furthered the legal principle – “virtually universal,” he contended – that non-violent individuals should not be extradited for political offences. “If it is not a terrorist case, a violence offence, you should not be extradited for a political offence.” More in keeping with the work of non-governmental organisations, extraditing Assange would embolden other powers to consider this pathway to seek those responsible for “disclosures that are uncomfortable or threatening.” Governments of all political hues will be taking heed from this.

Day Two of Extradition Hearings

The second day of extradition hearings against Julian Assange and by virtue of that, WikiLeaks, saw Mark Summers QC deliver a formidable serve for the defence at Woolwich Crown Court. “It’s difficult to conceive of a clearer example of an extradition request that boldly and blatantly misstates the facts as they are known to be to the US government.” The targets were, respectively, allegations by the US Department of Justice that Assange attempted to conceal Chelsea Manning’s identity for nefarious purposes and second, that WikiLeaks was reckless as to the potential consequences of harm in releasing unredacted State Department cables in 2011.

The position WikiLeaks has taken on the latter position goes back to the problematic, rocky relationship it has had with The Guardian over the years. In November last year, the paper took the position that Assange had to “be defended against extradition to the United States in a case that digs at the foundations of freedom of democracy in both Britain and the US, and could see him sentenced to a total of 175 years.” History, however, shows a more fair-weather friend disposition, especially amongst a few of the paper’s journalists.

The Guardian was one of a select number of international outlets WikiLeaks had partnered with what was intended to be, according to Summers, a harm minimisation process of release. Initial cable publications in November 2010 heeded the principle of redaction, so much so that John Goetz of Der Spiegel considered them “extreme.” Goetz’s statement was duly read by Summers: “These were more extreme measures than I had ever previously observed as a journalist to secure the data and ensure they could not be accessed by anyone who was not a journalist.”

To the claim of reckless publication, it was submitted that journalists Luke Harding and David Leigh revealed the relevant password in their book WikiLeaks: Inside Julian Assange’s War on Secrecy that led inexorably to the indiscriminate release of the cables. The password granted access to the encrypted file with the full trove of unredacted cables, though this fact was only picked up by the German publication Der Freitag in August 2011. James Lewis QC, representing the Crown Prosecution Service, scoffed at the notion, leading to the defence referencing the index of Harding and Leigh’s work.

The account submitted by Summers did not lack thriller appeal. On August 25, the day Der Freitag started getting busy, Assange and Sarah Harrison, his WikiLeaks counterpart, got on the phone to both the US State Department and the US ambassador in the UK. An emergency regarding the publication of unredacted State Department files, they warned, was imminent. WikiLeaks, they stressed, would not be responsible for it. The picture presented about Assange was one of concern. “We don’t understand,” he claimed at the time, “why you don’t see the urgency of this. Unless we do something about it, people’s lives are being put at risk.”

The 18th count of the indictment charging that Assange aided and abetted Manning’s 2010 disclosures as part of a “conspiracy to commit computer intrusion” was given similar, withering treatment. Underpinning the argument is the claim that Assange assisted Manning adopt an anonymous identity via a cracked US military password. That identity, argues the prosecution, would have permitted the obtaining and dissemination of classified material without her exposure.

This, countered Summers, lay in the realm of gross misunderstanding. The US military would hardly have concerned itself with login details initiated by an anonymous user. Far better to focus on the relevant IP address, a true sign of a user’s individuality. Again, the stress by the defence has been on Manning’s individual conscience and initiative, making her a more traditional whistleblower than a malicious co-conspirator in computer hacking. In her 2013 court-martial, Manning insisted that “no one associated with the WLO [WikiLeaks] pressured me into giving me more information. The decisions I made to send documents and information to the WLO and the website were my own decisions, and I take full responsibility for my actions.”

Nor could her motives for disclosing such documents be impugned; she had disclosed the US Army’s 2007 Rules of Engagement to enable those viewing the Collateral Murder video to contextualise the attack by the Apache helicopter that killed over a dozen people, including two Reuters news staff, in the Iraqi suburb of New Baghdad.

Also worth noting here is the level of discrimination shown: Manning did not provide the rules of engagement files from Afghanistan, despite having access to them. The superseding indictment would have you think otherwise, alleging that, “Between in or around January 2010 and May 2010, consistent with WikiLeaks’s ‘Most Wanted Leaks’ solicitation of bulk databases and military and intelligence categories, Manning downloaded four nearly complete databases from departments and agencies of the United States.”

The demolition by Summers was impressively devastating. While the “Most Wanted Leaks” list did seek “bulk databases,” the diplomatic cables did not form part of them. Evidence that Manning had ever seen the list was also scant, a point that could be adduced from material cited in her court-martial. Lewis weakly contended that the “Most Wanted Leaks” list was a “general allegation,” and more attention should be paid to the WikiLeaks website itself, which had the “solicitation” posted on it. Sloppiness is often the métier of the desperate.

Lewis was also far from convinced about Manning’s motives, following a crude syllogistic line of reasoning that proved clumsy and laboured. The statement made by Manning to show her wounded moral compass was “self-serving” in nature; but it was merely self-serving because it was made by a conspirator. Conspirators, it followed, have no morals. “You can’t rely on a self-serving statement without qualification whatsoever. It’s the self-serving statement of a co-conspirator.”

What the defence had shown on the second day of extradition hearings was the increasingly hollow nature of much in the prosecution’s case, one increasingly reliant on what Summers described as “lies, lies, and more lies.”

Day One of Extradition Hearings

If we are to believe it, Julian Assange of WikiLeaks, the man behind showing the ugliness of power, is the one responsible for having abused it. It is a running theme in the US case against this Australian publisher, who has been given the coating of common criminality hiding the obvious point: that the mission is to make journalism on official secrets, notably those covering atrocity and abuse, a crime.

The first day of full extradition hearings against Assange at Woolwich Crown Court was chocked with a predictable prosecution case, and a robust counter by the defence. Central to the prosecution’s case for extradition to the US is the emphasis on the ordinariness of Assange’s alleged criminality, to diminish the big picture abuses of empire and focus on the small offences of exposure. In so doing, that seemingly insurmountable problem of journalism becomes less important. If you publish pilfered material from whistleblowers, you are liable, along with those unfortunates who dared have their conscience tickled.

As James Lewis QC advanced at London’s Woolwich Crown Court, “What Mr. Assange seems to defend by freedom of speech is not the publication of the classified materials but the publication of the names of the sources, the names of the people who had put themselves at risk to assist the United States and its allies.”

Here, the rhetorical shift is clear: there were those who assisted the US, and Assange was being very naughty in exposing them via the State Department cables and the Iraq and Afghanistan war logs. In doing so, he had also conspired with US army intelligence analyst Chelsea Manning to hack a password and conceal his identity in accessing and downloading relevant files.

Relegating Manning to the status of wooed conspirator was a ploy convincingly swatted by defence barrister Edward Fitzgerald QC. He merely had to consult Manning’s own court-martial, in which she clearly stated that “the decisions I made to send documents and information to the WikiLeaks website were my own decisions and I take full responsibility for my actions.”

According to Lewis, the disclosures by WikiLeaks had grave consequences. Fascinatingly enough, enough, these were not the sort identified by Pentagon studies which took a less punitive view on the subject. Unconvincingly, the prosecution argued that, “The US is aware of sources, whose redacted names and other identifying information was contained in classified documents published by WikiLeaks, who subsequently disappeared, although the US can’t prove at this point that their disappearance was the result of being outed by WikiLeaks” [emphasis added]. This is almost incompetent in its measure: to accuse WikiLeaks of inflicting such harm, only to suggest that proof of causation was absent.

Lewis was also keen to shrink the panoramic view of the proceedings against Assange, preferring to see it as a hearing rather than a trial on the merits of the case. He does not want broader issues of reporting or journalism to be considered, nor thinks it relevant. The only issue on that front, insisted the prosecution, was whether crimes alleged by the US would also constitute crimes in the UK, a matter surely not in dispute from the defence. Fitzgerald begged to differ on that point as the Official Secrets Act that accords with the US Espionage Act contravenes the freedom of expression and information right outlined in Article 10 of the European Convention on Human Rights.

The US Department of Justice indictment, which makes essential if grotesque reading, links journalism on national security matters to the punitive nature of the national security state, cocooned, as it were, by the US Espionage Act of 1917. Counts 15 to 17, as was noted by Gabe Rottman in Lawfare last year, “represent a profoundly troubling legal theory, one rarely contemplated and never successfully deployed. Under these counts, the Justice Department now seeks to punish the pure act of publication of newsworthy government secrets under the nation’s spying laws.”

The very fact that the documents in question were posted is what is central to them. They do not even lie in any conduct of inducement or seduction. For even the most reserved legal commentators, this suggests a gluttonous overreach on the part of the imperium.

The issue was raised in questioning by Judge Vanessa Baraitser. In making their remarks, the prosecution was stopped to clarify what was meant by “obtaining” classified documents. Could anybody obtaining them, even in the absence of “aiding and abetting,” be the subject of prosecution? The response, after hesitation was: Yes. Newspapers and media outlets, beware.

The defence effort was sharp and to the point. The entire prosecution against Assange, submitted Fitzgerald, was an abuse of process, constituting a “political offence” which would bar extradition under the US-UK Extradition Treaty of 2003. The judge was reminded that the alleged offences took place a decade ago, that the Obama administration had decided not to prosecute Assange, and that the decision to do so in 2017 by the Trump administration saw no adducing of any new evidence or facts. The decision by Trump to initiate a prosecution was an “effective declaration of war on leakers and journalists.” The US president’s own disparaging remarks on the Fourth Estate were cited. Assange “was the obvious symbol of all that Trump condemned.”

Trump’s own erratic behaviour – instructing US Republican Congressman Dana Rohrabacher to take a message to Assange in the embassy in 2017 – was also noted. The message was uncomplicated enough. Should Assange disclaim any Russian involvement in the 2016 Democratic National Committee leaks, he would be pardoned. Fitzgerald was cool on the president’s blanket denial that this ever took place. “He would, wouldn’t he?”

More broadly, the entire prosecution and extradition effort was based on the naked political act of state, spiced with a good deal of violent endeavour. The destruction of legal professional privilege, the principle protecting the confidences of Assange and those of his defence team, suggest that point. “We know,” submitted Fitzgerald, “that the US intelligence agency was being provided with surveillance evidence of what was being done and said in the Ecuadorean Embassy.”

And that’s not the half of it. According to Assange’s barrister, various “extreme measures” against the long-time embassy tenant were also considered. Kidnapping or poisoning were high on the list. With such rich attitudes, it is little wonder that the defence reiterated the dangers facing Assange should he make his way across the Atlantic to face the US judicial system. In the Eastern District of Virginia, punitive sentences are all but guaranteed. Special Administrative Measures would spell mental ruin and death. The second day awaits.