Examining the ‘Political Extradition’ Case against Julian Assange

Much of Day 3 of Julian’s Final Extradition hearing was spent on the assertions of US Prosecutor QC Lewis that Barack Obama’s administration, having opened a secret grand jury with investigations afoot, it proved that Donald Trump’s Administrations 17 charges under the Espionage Act were clearly ‘not politically motivated’, thus valid.

A few bits from Andy Worthington’s Sept. 10, 2020: ‘The Ongoing And Unjustifiable Persecution Of Julian Assange’, worldbeyondwar.com via Popular Resistance (CC) (although given that he’d worked with WikiiLeaks on their Guantanamo releases, and will be a witness for the defense in coming weeks, you might like to read it all):

“The US’s alleged basis for prosecuting Assange is the Espionage Act of 1917, which has been widely criticised. A report in 2015 by the PEN American Center found, as Wikipedia explained, that “almost all of the non-government representatives they interviewed, including activists, lawyers, journalists and whistleblowers, ‘thought the Espionage Act had been used inappropriately in leak cases that have a public interest component.’” As PEN explained, “experts described it as ‘too blunt an instrument,’ ‘aggressive, broad and suppressive,’ a ‘tool of intimidation,’ ‘chilling of free speech,’ and a ‘poor vehicle for prosecuting leakers and whistleblowers.’”

President Obama had considered seeking Julian Assange’s extradition, but had correctly concluded that doing so would constitute an unprecedented and unacceptable assault on press freedom. As Charlie Savage explained in a New York Times article when Assange was charged, the Obama administration had “weighed charging Mr. Assange, but rejected that step out of fears that it would chill investigative journalism and could be struck down as unconstitutional.”

Donald Trump and his administration, however, had no such qualms, and when they decided to proceed with an extradition request for Assange, the British government allowed its disdain for the WikiLeaks founder to override what should have been its own defense of the media’s freedom to publish material that is in the common interest, but that governments may not want published, as part of the necessary functioning of a society that recognises the need for checks and balances on absolute power, in which the media can, and should play a major part.” [long snip]

“As the extradition hearing began on Monday, Mark Summers QC, one of Assange’s lawyers, called the delivery of the [New, second] superseding indictment “abnormal, unfair and liable to create real injustice.” As the Guardian explained, Summers said that the additional material “had appeared out of the blue,” and ”presented extra allegations of criminality which it claimed on their own might be separate grounds for extradition, such as stealing data from banks, obtaining information on tracking police vehicles, and supposedly ‘assisting a whistleblower [Edward Snowden] in Hong Kong.’”

As Summers proceeded to explain, “This is essentially a fresh extradition request,” which was, he said, “presented at short notice at a time when Assange has been ‘inhibited’ from speaking to his defence lawyers.” He also said that Assange and his lawyers believed that the additional material was introduced and an act of desperation, because “the US saw the strength of the defence case and thought they would lose.” He asked Judge Vanessa Baraitser “to ‘excise’ or dismiss the belated extra US indictments,” and also sought to delay the extradition hearing, but Judge Baraitser refused.

It remains to be seen if, as the case progresses, those defending Assange can manage to persuade the judge to deny the US’s extradition request. It seems unlikely, but a key aspect of the extradition treaty is that it is not supposed to be for political offences, even though that is what the US government actually seems to be claiming, particularly through its use of the Espionage Act. As another of Assange’s lawyers, Edward Fitzgerald QC, explained, in the defence argument, which he wrote, the prosecution of Assange is “being pursued for ulterior political motives and not in good faith”.

As he further explained “The [US] request seeks extradition for what is a classic ‘political offence.’ Extradition for a political offence is expressly prohibited by article 4(1) of the Anglo-US extradition treaty. Therefore, it constitutes an abuse of this court’s process to require this court to extradite on the basis of the Anglo-US treaty in breach of the treaty’s express provisions.”

Okeydokey then; what does the US/UK extradition treaty say?  From Kevin Gosztola, Feb. 26, 2020:

“Assange is accused of 17 counts of violating the Espionage Act and one count of violating a computer crime law that, as alleged in the indictment, is also an espionage offense. Espionage is widely recognized as an “offense directed against the state itself.”

An extradition treaty signed [PDF] by both the U.S. and the U.K. in 2003 contains a section that explicitly applies to political offenses. It states, “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”

However, in 2003, the U.K. Parliament passed the Extradition Act and omitted a section on political offenses. The prosecution argues Parliament did not include a right related to political offenses, therefore, Assange cannot invoke the protection to prevent his extradition.

Why the political offense exception was omitted from the 2003 law is unclear. But at the time of passage, it was early in the global war on terrorism.

Christopher Joyner, a professor of international law at Georgetown University, articulated what was a prevalent concern at the time.

“Perhaps most problematic for extradition cases involving acts of terrorism is the political offense exception. Many modern extradition treaties specifically exempt political offenses from extradition, since liberal and democratic governments developed a strong antipathy toward the idea of surrendering dissidents into the hands of a despotic government.”

Joyner continued, “There are, however, no recognized criteria as to what constitutes a ‘political’ offense, nor is there a rule of international law prohibiting the extradition of political offenders. As a result, the decision whether to extradite rests on subjective criteria, as determined by the holding government.”

“Accordingly, the bilateral extradition system can provide only partial remedies for bringing international terrorists to justice. The consequence is that, while governments might agree that terrorist acts rise to being criminal offenses against the international community, strict multilateral enforcement through extradition in prosecuting such acts may still be lacking.”

The U.S.-U.K. treaty dealt with this issue by specifically listing violent offenses that were to be excluded from the political offense exception.

Judge Vanessa Baraitser seemed receptive to the prosecution’s argument for disregarding the treaty. Before James Lewis, the lead prosecutor, responded to the defense, Baraitser instructed the defense to stop their argument about political offenses and focus on whether the treaty is relevant to proceedings.

To this, defense attorney Edward Fitzgerald told the judge the treaty is the basis of the extradition request. “To have an extradition request, you’ve got to have a treaty.”

The Magna Carta of 1215 banned arbitrary detention and granted defendants rights of habeas corpus. Fitzgerald emphasized that such due process protections have been enshrined for centuries, and in fact, the U.S. Constitution contains them as well. But as the “Don’t Extradite Assange Campaign” observed, the judge acted like Parliament overrode the Magna Carta, as the defense outlined why a person should not be subject to arbitrary detention.

The defense offered several salient examples that related to the matter of political offenses.” [Kevin names them.]

This is a 31 min. Week One catch up by Kristinn Hrafnsson, Jennifer Robinson, and Joseph Farrell (sound glitches are frequent).  I can’t say whether or not Jen was there on day 3, but Craig Murray’s coverage made  US Prosecutor James Lewis QC sound like a Carnival Barker Buffoon in a court that long ago was considered to be the most dignified and transparent courts in the land (or however she’d said it).  It’s very good, not overly long, and even I managed it in three 10-min- sittings.

Day 5 coverage on Twitter:
https://twitter.com/wikileaks/

@kgosztola  ‘According to Lewis, Assange will be held in administrative segregation in a prison in Alexandria, Virginia. Subject to Special Administrative Measures (SAMs) before and after trial because he is national security defendant’

(cross-posted at caucus99percent.com)