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Julian Assange, Political Offences and Legal Restraints

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 court room. 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 levelled 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.

***

The Glass Cage and Heaven in a Rage

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.

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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