Supporters of the WikiLeaks publisher Julian Asssange, who faces extradition to the United States, had hoped for a clear decision from the British High Court on March 26.
Either it would reject leave to appeal Assange’s case, thereby setting the wheels of extradition into motion or permit a full review.
Instead, it decided on a tormenting midway, one that grants the United States government the possibility to make amends.
There is a despairing sense of repetition in this.
The British High Court overturned the December 2021 decision by Justice Vanessa Baraitser of the District Court to bar extradition, on certain assurances provided by the US government.
Her judgment had been brutal in all respects but one: that extradition would imperil Assange’s life in the US penal system, largely due his suicidal ideation and inadequate facilities to cope with that risk.
The High Court judges accepted the Department of Justice (DOJ) assurances that Assange would not face crushing conditions of detention in the notorious ADX Florence facility, or suffer the gagging restrictions euphemised as “Special Administrative Measures”.
He would also receive the appropriate medical care and face the prospect of serving the balance of any sentence in Australia.
The judge’s refusal to look behind the fickle nature of such undertakings passed them by.
The March 26 judgment is much in keeping with that theme.
The grounds for Assange’s team numbered nine in total, entailing two parts.
The first, comprising seven grounds, argues that the decision to send the case to the Home Secretary was wrong for: ignoring the bar to extradition under the British-US Extradition Treaty for political offences, for which Assange is being sought for; that his prosecution is for political opinions; that the extradition is incompatible with article 7 of the European Convention on Human Rights (ECHR) noting that there should be no punishment without law; that the process is incompatible with article 10 of the ECHR protecting freedom of expression; that prejudice at trial would follow by reason of his non-US nationality; that the right to a fair trial, protected by article 6 of the ECHR, was not guaranteed; and that the extradition is incompatible with articles 2 and 3 of the ECHR (right to life and prohibiting inhuman and degrading treatment).
The second part of the application challenged the British Home Secretary’s decision to approve Assange’s extradition. This should have been barred by the treaty between Britain and the US and on the grounds that there was “inadequate specialty/death penalty protection”.
The High Court was only moved by three arguments, leaving much of Baraitser’s reasons untouched.
Assange’s legal team had established an arguable case that sending the case to the Home Secretary was wrong as he might be prejudiced at trial by reason of his nationality.
Following that line of reasoning “but only as a consequence of that”, extradition would be incompatible with free speech protections under article 10 of the ECHR.
An arguable case against the Home Secretary’s decision could also be made, as it was barred by inadequate specialty/death penalty protection.
Not political?
What transpired was a savage pruning, dressed in legal garb, of a rounded challenge to a political persecution.
On whether Assange was being prosecuted for his political opinions, the court accepted Baraitser’s finding that he had not.
The judge was “entitled to reach that conclusion on the evidence before her and on the unchallenged sworn evidence of the prosecutor (which refutes the applicant’s case)”.
While accepting the view that Assange “acted out of political conviction”, the extradition was not being made “on account of his political views”.
Again, the judiciary avoided the obvious facts: the exposure of war crimes, atrocities, torture and various misdeeds of state are political.
Baraitser’s assessment on the US Espionage Act of 1917 was also spared criticism.
The point missed in both her judgement and the latest High Court ruling is a seeming inability to accept that the Act is designed to circumvent constitutional protections, a point made from the outset by Wisconsin Republican Senator Robert M La Follette.
On whether Assange would be denied due process, in that he could not foresee being prosecuted for publishing classified documents in 2010, the view that US courts are “alive to the issues of vagueness and overbreadth in relation” to the Act misses the point.
It is hardly assuring to Assange that he would not be subject “to a real risk of a flagrant denial” of rights protected by article 7 of the ECHR, let alone the equivalent Fifth Amendment of the US Constitution.
Denied a fair trial
The matter of Assange being denied a fair trial should have been obvious, evidenced by prejudicial remarks by senior officials (former CIA director and US Secretary of State Mike Pompeo comes to mind) on his presumed guilt, tainted evidence, a potentially biased jury pool and coercive plea bargaining.
He could, or would, also be sentenced for conduct he had not been charged with “based on evidence he will not see and which may have been unlawfully obtained”.
Instead, Baraitser’s negative finding was spared its deserved flaying.
“We, like the judge [Baraitser], consider the article 6 objections raised by the applicants have no arguable merit, from which it follows that it is not arguable that his extradition would give rise to a flagrant denial of his fair trial rights.”
Of enormous, distorting significance was the High Court’s refusal to accept “fresh evidence”.
This includes the Yahoo News article from September 2021 outlining the views of intelligence officials on the possible kidnapping and even assassination of Assange.
A statement from US attorney Joshua Dratel pertinently argued that designating WikiLeaks a “non-state hostile intelligence service” was intended “to place [the applicant] outside any cognizable legal framework that might protect them from the US actions based on purported ‘national security’ imperatives”.
A signed witness statement also confirmed that UC Global, the Spanish security firm conducting CIA-organised surveillance of Assange in the Ecuadorian Embassy in London, had means to provide important information for “options on how to assassinate” Assange.
Instead of considering the material as validating a threat to Assange’s right to life, or the prospect of inhuman or degrading treatment or punishment, the High Court justices speculated what Baraitser would have done if she had seen it.
Imaginatively, if inexplicably, the judges accepted her finding that the conduct by the CIA and UC Global regarding the Ecuadorian embassy had no link to the extradition proceedings.
The judges’ Orwellian reasoning was that the brutal rationale for dealing with Assange, contemplated by the US intelligence services, “is removed if the applicant is extradited”.
The High Court reiterated the position taken by their US colleagues in their 2021 decision.
Concerns about Assange’s mistreatment would be alleviated by granting “assurances that the applicant is permitted to rely on the First Amendment, that the applicant is not prejudiced at trial (including sentence) by reason of his nationality, that he is afforded the same First Amendment protection as a United States citizen, and that the death penalty not be imposed)”.
Such an absurd request presumes the prosecutors can be held to their word and that a US court would accept the application of the First Amendment and abide by the requested sentencing requirements.
The US government has until April 16 to file assurances addressing the three grounds. Assange’s team can file further written submissions by April 30 and the Home Secretary by May 14. Another leave of appeal will be considered on May 20.
If the DOJ does not provide any assurances, leave to appeal will be granted.
The accretions of obscenity in the Assange saga are set to continue.
[Binoy Kampmark currently lectures at RMIT University.]