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Legitimised judicial captivity: The Assange case

 

On 10 December, the High Court of England and Wales reversed the 4 January lower court decision to halt the extradition of Julian Assange to the United States. The US Department of Justice (DoJ) is seeking the extradition of the WikiLeaks founder to face 18 charges, 17 based on the US Espionage Act 1917.

The central contention of the prosecution is that Assange was complicit in illegal acts to obtain or receive voluminous databases of classified information; agreed and attempted to obtain such information through computer hacking and published classified documents that were unredacted, revealing the names of US informants, religious figures, dissidents and human rights advocates. The charges avoid the thorny issue that Assange, in releasing such classified material, exposed US atrocities, war crimes, torture and general human rights abuses.

This legal pursuit is disturbingly unique not only for using an archaic law against a non-US national; it is also the first instance of an international application of it against a publisher.

The law, if applied in the way suggested by the charges, criminalise the receipt, dissemination and publication of national security information, irrespective of motive. If the US Espionage Act 1917 were applied in this way, it would appear to subvert the free press provision in the United States Constitution.

Were the US to be successful — and the 10 December decision comes one step closer — it would give the green light to every other country to use laws of espionage to target publishers, in similar extradition proceedings, for revealing material that exposes atrocities and human rights abuses.

The 4 January decision by District Court Judge Vanessa Baraitser accepted the defence argument that extradition to the US would be ‘oppressive’ given ‘his mental condition’. The defence had adduced neuropsychiatric evidence that Assange was autistic and would be at serious risk of suiciding in the US prison system. The prosecutors were unsuccessful in convincing the court that he would not be subjected to Special Administrative Measures that would restrict his access to legal counsel, family, and place him in solitary confinement. They also failed to show that he would not, on being convicted, serve his time in the notorious ADX Florence supermax prison, known as the ‘Alcatraz of the Rockies’.

 

'The High Court judgment also makes no reference to the abundant evidence submitted by the defence at both the extradition hearing and the appeal: that US government officials had contemplated abducting and assassinating the very individual whose extradition they were seeking.'

 

In all other respects, the ruling was brutal to the journalistic craft. Assange, Baraitser claimed, could hardly be a true journalist and avail himself of free speech protections. In any case, journalists should not ever reveal the classified, confidential material of state. They were never qualified to do so. 

Despite the prosecution never producing any evidence of its claim, she also accepted the argument that the publisher had endangered the lives of informants by injudiciously releasing US State Department cables. Despite much evidence to the contrary, the district judge also thought it plausible that Assange had conspired with former US Army Private Chelsea Manning to hack a computer password.

The US appealed Judge Baraitser’s decision on five grounds: that the district judge did not correctly apply UK extradition law; that she should have sought assurances from the US authorities after deciding to deny the request; that she ought to have disqualified the expert psychiatric evidence of defence witness Michael Kopelman; that she erred in assessing the evidence of suicide risk; and that the UK government was issued a number of assurances going to the problems identified in the court decision.

What interested the High Court most were the assurances from the US government, despite them being made after the original judgment. Diplomatic Note no. 74 contained ‘solemn undertakings, offered by one government to another, which will bind all officials and prosecutors who will deal with the relevant aspects of Mr Assange’s case now and in the future.’

In sum, these undertakings meant that Assange would not be subjected to SAMs, or sent to ADX Florence, and would receive appropriate medical treatment to mitigate the risk of suicide. (The High Court did not seem to understand that the assurance to not detain Assange at the ADX Supermax during ‘pre-trial’ was irrelevant as ADX is a post-conviction establishment, and this factual misunderstanding may have led the Court into error.) He could also serve his post-trial and post-appeal sentence in Australia, though that would be at the mercy of DoJ approval. All undertakings were naturally provisional on the conduct of the accused.

The Lord Chief Justice of England and Wales Ian Burnett, and Lord Justice Timothy Holroyde accepted the prosecution’s argument that such assurances could be made at a later stage, even during an appeal. Delays by a requesting state to make such assurances might be tactically motivated in some cases but never entertaining them, even if made later, might also result in ‘a windfall to an alleged or convicted criminal, which would defeat the public interest in extradition.’ The High Court accordingly did ‘not accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage.’

Judge Baraitser should have also been mindful of seeking the assurances in the first place, given how vital the issue of Assange’s suicide risk and future treatment in US prisons was in her decision against extradition.

 

'Even if he never finds himself in a US prison, Assange may well end his days inside a British one surrounded by prison wardens and lawyers.'

 

Accepting the US assurances at face value, and showing no inclination to peer behind them, the High Court duly regarded the original decision as reversible. Fears that Assange would be subjected to the ‘harshest SAMs regime’ could be allayed. He would be given adequate clinical and medical treatment. Given the significance of the evidence submitted by the neuropsychiatrist Michael Kopelman and Dr Quinton Deeley on Assange’s suicide risk in ‘being held under such harsh conditions of isolation’, the justices were ‘unable to accept the submission that the judge’s conclusion would have been the same if she had not found a real risk of detention in those conditions.’

Such reasoning betrays a naïve understanding of the US prison system. Even if the Australian national were to avoid a SAMs regime, he could still be subjected to an array of euphemistic designations in the US prison system that would have much the same effect.

The status of diplomatic assurances is also questionable. For one, they are non-binding, being mere unenforceable undertakings. As Amnesty International’s Europe Director Nils Muižnieks stated after the decision, ‘The fact that the US has reserved the right to change its mind at any time means that these assurances are not worth the paper they are written on.’ Human rights activist and former UK diplomat Craig Murray is also sceptical about ‘solemn assurances’ made by ‘a state whose war crimes and murder of civilians were exposed by Julian Assange.’

History is also a guide. The fate of Spanish drug trafficker David Mendoza Herrarte stands out. When a Spanish court was given an assurance by the DoJ that Spanish drug trafficker David Mendoza Herrarte could, if extradited to the US to face trial, serve any subsequent prison sentence in his home country, he received a rude shock. In refusing the transfer application, the DoJ argued that the undertaking was to allow Mendoza to apply for a transfer; it never meant that they had to agree to it. It took six years and much handwringing between Madrid and Washington before the decision was altered.

Perhaps most critically of all, the justices failed to consider the fact that the pursuit of Assange has, from the outset, been political and indifferent to due process. He was the subject of US-directed surveillance operations whilst in the London Ecuadorian embassy that are currently of interest to Spanish prosecutors. (Spanish security firm UC Global had been hired by US intelligence officials for the task.)

The High Court judgment also makes no reference to the abundant evidence submitted by the defence at both the extradition hearing and the appeal: that US government officials had contemplated abducting and assassinating the very individual whose extradition they were seeking.

The chief proponent of this view was former US Secretary of State and director of the Central Intelligence Agency, Mike Pompeo, who never concealed his designation of WikiLeaks as a political outfit. ‘It’s time to call out WikiLeaks for what it really is,’ he told an audience at the Center for Strategic and international Studies (CSIS) on April 13, 2017, ‘a non-state hostile intelligence service often abetted by state actors like Russia.’

And as if this was not enough, the High Court justices made no reference to the fact that much of the DoJ indictment is based on fabricated evidence. In June this year, the Icelandic biweekly Stundin revealed that Sigurdur ‘Siggi’ Thordarson, a boisterous volunteer and embezzler of US$50,000 from WikiLeaks, had lied about being approached by Assange ‘to commit computer intrusions and steal additional information’ from official Icelandic sources. Thordarson, convicted of financial fraud and sexually abusing minors, had been cultivated by the FBI to obtain evidence on Assange’s alleged misdeeds. But as he has now revealed, the Icelandic national acted on his own, daring initiative.

The High Court decision was perfectly timed to grim, ironic effect. It was handed down on Human Rights Day. It was received by Assange, who has, it is now revealed, suffered a stroke, the day the Nobel Peace Prize was being awarded to two journalists, Maria Ressa and Dmitry Muratov.

As an appeal to the Supreme Court is being planned by his team, Assange’s captivity continues. The UK also continues being Washington’s deputised gaoler. Judith Hall of Amnesty Hall sees method in this cruelty: ‘to keep Assange detained as long as possible’, to essentially finish him off by process. Even if he never finds himself in a US prison, Assange may well end his days inside a British one surrounded by prison wardens and lawyers.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne. 

Main image: Julian Assange appears at Westminster Magistrates Court. (Jack Taylor / Getty Images)

Topic tags: Binoy Kampmark, Assange, High Court, extradition, espionage

 

 

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Existing comments

Nice article Binoy... let's try a hypothetical. Perhaps a journalist (let's call him ray) obtains a list of Afghans who cooperated with the occupying forces; it has details of the tasks performed, atrocities observed...all the good gear deemed public interest, "need to know" stuff. Old ray thinks this Afghani list could be a click-bait windfall! Nobody's going to read 10,000 files individually, surely, the public aren't that interested; but maybe the Taliban are... so ray decides that unredacted stuff carries more credence (and is less effort). We've already airlifted lots of Afghans after the occupation; what could it matter? So ray needs some more dirt to spice up the website; a very compliant public officer is encouraged to find and do a bulk data dump of those evacuated for security and safety. Their family is still there. It's a busy time for ray, juggling a few romances so rather than check the data, "whoosh": free to air. The money comes from the pop-ups... The only weapon ray has is an internet connection, the ammunition is provided by a sympathetic servant with a grudge against their employer. There's no journalistic integrity in stealing secure information and publishing it "because it is a reliable source". Thus the cross-hairs... poor ray.


ray | 16 December 2021  
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The deeper question that you don't raise is: should the Afghans have been aiding and abetting the US military forces? I imagine 'Ray's' answer would be they shouldn't have. I accordingly side with 'Ray' on what he did in relation to thinking deeply about this. Thank you for the question but 'Ray's' motivations aren't as clear as you 'construct' them, Ray. Nice name, at least! Thanks.


Michael Furtado | 20 December 2021  

Michael, the "deeper" question is irrelevant to the journalistic exposure of state secrets, more particularly the un-redacted identities. If your message to informers, translators or under-cover agents is "yeah, go ahead but your life and your family might be spread over the Internet..." the Assange case must either put the price of cooperation at a premium or perhaps trend towards mercenaries as operatives. Ask yourself the "right" question: How do you know that the documents published by Assange are 100% factual? Clearly, nobody knows. The public assume because they were "secured government secrets" that the information was accurate. Both Blair and his WOMD claim and Hawke with his Tienanmin massacre tears were fine examples of just how wrong high level information can be. Courts receive affidavits and stat decs every day; it's pretty rare that two observations of an incident align perfectly. Ivan's comment sums up the Assange legacy quite well; reckless journalism and today we have a plethora of writers justifying his actions with little other motive than it justifies themselves.


ray | 21 December 2021  

Ray, Your unassailable logic (in regard to the protection of local informers: obviously an
ethical obligation) unfortunately takes precedence over what actually happened over the longer term and which made collaborators of them in the manner that the French experienced and dealt with after WWII. In regard to Afghanistan, we know from British-based Pakistani and Indian journalists, who are closest to the scene and have been watching developments for at least forty years, as well as a century before that, what Assange subsequently revealed was merely the icing on a very rich and complex cake. Afghanistan is the opium source of half the world, the proceeds of which go to global and corrupt local warlords. In this scenario the Taliban, while infused with a mode of zealotry not unlike that of the Inquisition, is cleaning the place up with the help of China (the only power source that hasn't wreaked havoc on them). Every colonial and neo-colonial interest known to God and man has wreaked havoc on them, from Russia in the North to Iran under the Shah acting on the initiative of the CIA, to the British to the South. (Tariq Ali: 'The Forty-Year War in Afghanistan', Verso/Penguin, 2021).


Michael Furtado | 22 December 2021  

While the above article is well judicially thought out may I point out the larger geo-political ramifications of what Wikileaks and Assange have done to us all?
Julian has the anarchistic, simplistic view that in the cause of greater political openness & transparency that possibly any private discussion can rightly be published in full without consequences.
I am afraid they do and he has played God with it. May I recap that Trump was initially elected president by a mere 77, 700 votes in part due to the desemination by Wikileaks of Democratic Party Headquarter emails.
What we have ended up with is the reign of Trumpism, legitimating and promoting "fake news" and a raft of conspiracy theories that have gained significant traction and rocked the stability of the US (the near overthrow of Capitol Hill) and to a lesser extent in the rest of the Western World.
This problem is far from over and I do blame Julian in part for igniting it.


Ivan Tchernegovski | 16 December 2021  

The whole Assange conundrum has leant in one direction - journalists have a mandate to protect us from the nasty, conniving, secretive protection of high security documents. Yes, I worked in Defence for some years, so am I biased? No! The whole reason for security is to protect us and our allies. But don't listen to me! Please rather become better informed from experts before you spread wrongful and biased viewpoints and continue to protect the sacrosanct?! position of power of journalism. Journalism is to serve, not govern.


Marjorie Edwards | 17 December 2021  
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You raise a good point, Marjorie. The problem is that state power, as we know from Tony Blair's catastrophic fall from grace, can be used to kill the wrong people. Assange exposed this. The conundrum then becomes: should journos succumb to state propaganda under threat of being treated like Assange or should they speak up? Put differently but more ethically problematically: is it their job to lie about this or does the absolute unfettered truth matter? I know which ethical side I would be backing!


Michael Furtado | 20 December 2021  

Regarding the USA & CIA mediated war on Julian Assagne. It seems that many followers of this war on Mr Assagne have simplistically abandoned the free flow of information needed to maintain functional democracies, as the governments of USA and UK, and fellow traveller nations like Australia aspire to be.
Who began the wars on Iraq & Afghanistan & on what grounds ?
False WMD stories for Iraq & the post 9/11 concoctions by the Bush admin in USA for the war on Afghanistan.
Assagne was a fearless warrior journalist & he has paid a huge price by his imprisonment to date. The fascist behaviour by US, UK & Australian military in both nations was a cause of much loss of life by many innocent people in both nations.
Why are people here so woefully misinformed about the unjust treatment of Mr Assagne ?
The capture of much MSM in Australia by fascist media tycoons like Rupert Murdoch is the answer.
From John Cronin, Toowoomba


John Cronin | 17 December 2021  
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And the answer to your question, John, is that, unlike the Kiwis, we still frighten our kids into behaving at night by playing 'Fortress Australia', while the Yanks ravish their mothers and take us for the fools that we are. Whatever the bitter outcomes, as experienced by Assange, the game works well for compliant children, even while our 'Yes, Massah' foreign policy continues to make us the world's laughing stock. While there's money in it for some, our Treasury is being wasted while the US industrial-military complex, itself horrendously injurious to their own democratic interests, continues to dupe our US cousins, into obedience. Just ask Noam Chomsky, Bernie Sanders and Michael Moore!


Michael Furtado | 20 December 2021  

Well, I think ScoMo has said he doesn't want Julian extradited. That should count for something.


Edward Fido | 17 December 2021  

Binoy, The Americans have a goal which is to punish Assange for his temerity in exposing their military excesses. The British are taking the safe road of not offending their military ally. To Britain Australia is a useful ally occasionally when it suits them. The High Court are scrupulously washing their hands like Pontius before the crucifixion.
In all of this we should remember that Assange has not only stayed true to himself with the courage to expose the truth, but also been an inspiration to us all in doing so.
It wold seem none of them give a rat's arse about his mental health - nor do they give a damn whether he dies in detention.


Francis Armstrong | 18 December 2021  

Woops! Let's hold on a minute. Julian Assange is not a journalist. Certainly not of the calibre of Peter Oborne, who has continually attacked the UK's sometimes bizarre interventions in world affairs. JA is more akin to Matt Drudge of the Drudge Report. His titillating revelations are a bit like 'What the butler saw' which amused patrons on Blackpool pier and probably still get a laugh out of them. IMHO JA is amoral: he's like an Indian peasant crapping in the street. A toilet would be more appropriate. He is a manipulator par excellence. I do not think this unlikely and unworthy 'hero' should be handed over to the US. The late Lord Denning said in England they had trial by jury, whilst in America they have trial by newspapers. IMO Assange would not be assured of a fair trial. I can't stand the man or his nonextant 'morals' but he is entitled to a fair trial.


Edward Fido | 20 December 2021  

Michael, you're like a beacon of virtue, sometimes appearing lit, then occulting or flashing but really the light bulb is just faulty...a hazard to navigation. I allude to your comment 22 Dec that indicates a journalist can be dissatisfied with the actions under scrutiny and (as you infer) then deliberately publish stolen documents to effect an outcome of the event. What Assange has done in his desperation to publish is jeopardize the evidence. It would be almost impossible to take war criminals to trial because some (all?) of the witness reports have been made public. The accused would be quite within their rights to declare their case is prejudiced. (You'd be expert in that). Assange has effectively given those he thought he'd bring to account a "get out of jail free" card on mistrial. By his theft and publication the documents are tainted; inadmissible. I might remind you that the courts job is to investigate and apportion guilt or blame, not some ambitious individual who wants to determine instant justice himself and make a dollar in the process. Nobody knows what has not been made public... Assange has nonchalantly blogged away war crimes into a penny-dreadful; the US efforts to extradite him are necessary to maintain public faith in the law.


ray | 22 December 2021  
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The issue is a straightforward one from a social justice perspective, Ray. The two persons who publish prolifically on this site on those matters are Andy Hamilton and Binoy Kampmark, both of whom attract polite but strong opposition from John Frawley, JohnRD, Francis Armstrong (especially if he can manage somehow to focus on child abuse), Roy (who invariably involves the devil) and two or three others who use piety to express their conservative politics. I hop on, mainly in response to you, because you are the brightest of the bunch but conservative all the same. The further reason I do so is that, were you, even once, to let the ball through to the keeper, I'd overlook it, but you never do, always starting with faux compliment, and ending in opposition to what was said. This mode of argumentation was commonplace in Common Room politics at Oxford, but, in my view, lacked humanity, which is what I find is the most serious flaw in the Rights approach to politics (and some on the Left). The other player in this is Edward Fido, who confines himself to attitudinising rather than argumentation. The ethical principles at stake reluctantly impel me to intervene.


Michael Furtado | 26 December 2021  

Michael, I disapprove of your evaluation of others and me, partially because you use the immature absolute accusations "never" and "always" in your generalizations but particularly that you malign me with making faux compliments. You might like to think you have discovered know some behavioral pattern or ulterior Oxford technique but I suggest (know) Occam's rule applies; my compliment is genuine, the predicate which you may find offending simply complements the article where I may take exception to the author's methods of thinking, writing or completeness. I appreciate the writer is somewhat restrained by both length of article and their train of thought... I don't run on the same rails which confine writers to their format and ethos. Much as you evaluate the various "conservative" commentary as attributed to the nature of the individual(s), necessarily the article contributions to ES can be restricted by the nature of the forum which is understandable. The ethics one defends are based on individual beliefs and morals, however it is possible to consider the ethics of others despite that the principles may conflict. In the case of Assange, it is not my brief to bring him to justice nor determine his future; similarly, his supporters should step back and allow him to be heard. Assange chose to protract the case by hiding himself.


ray | 31 December 2021  

I apologise if I have typecast your posts. If you check I have added context, so, no; I don't regard your interesting posts as always conservative, beyond Binoy's articles consistently adopting a libertarian and anti-establishment point of view. Nor, indeed, does it make me right and you wrong: its just that I regard some of your opinions, clever and well-crafted as they are, as conservative and sometimes, in the instance of de Klerk, reactionary. If 'reactionary' is too loaded a term, there are several appellations employed to pinpoint my meaning, all of which cannot logically fail the sniff test, and one of which might even be 'right-wing.' As for the others I mentioned in my last post, it sometimes happens, again when Andy and Binoy contribute an article, that a fair amount of cross-referencing occurs which, while certainly not suggesting collusion or paranoia on either side, induces a kind of ennui in me that those writers have somehow missed out on their target instead of which they attract an opposition that is predictable. Animated conversations do more than this and, for my part, I see my engagement with you as being well within the bounds of such a thing. Cheers!


Michael Furtado | 10 January 2022  

It's hard to believe how many of our wonderful Eureka
Street audience have drunk the US's Koolaid and believe that right is on the side of their military, and against the revelation of habitual military murders.


Patrick Mahony | 06 January 2022  

Nor was there any consideration given to the revelation that the CIA plotted to kidnap and murder him. These revelations  directly implicate Mike Pompeo, former CIA director and secretary of state, and former US president Donald Trump. 

CIA Conspiring To Murder Julian Assange Jeopardise US Prosecution Case - PopularResistance.Org

It should be very obvious to all that US and UK leaders have shown by their actions that they are being very vindictive towards whistleblowers who reveal their crimes and they will go to any lengths to discourage others from making such relevations

In addition to the threats to his mental health by the inhumane treatment he has been receiving, earlier this month it was revealed that Assange had suffered a minor stroke or a transient ischaemic attack (TIA). The British NHS has stated that such episodes need to involve specialist medical treatment as they often are an indication that a more serious stroke.could be imminent.

Julian Assange's medical condition could lead to an early death. He must be released. - The Canary

On 23 December 2021, it was announced that over 300 doctors from around the world known as Doctors for Assange have written to Australia's Deputy PM - Barnaby Joyce - imploring him to seek Julian Assange’s immediate release from prison in the U.K. on medical grounds.  So far, we have not heard any  news about the Deputy PM's response although his stated support for Assange is on record.

Letter to Barnaby Joyce MP, Deputy Prime Minister of Australia – Doctors for Assange

The cruel and vindictive treatment of this courageous man by the US and UK has gone on long enough.

Australian leaders should be supporting this Australian citizen  and calling for his immediate release.


Andrew (Andy) Alcock | 29 December 2021