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US REFUSES TO ASSURE UK JUDGES THAT ASSANGE WON’T BE EXECUTED IF
HE’S EXTRADITED  
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Marjorie Cohn
February 27, 2024
Truthout
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_ British law prohibits extradition to a country that may impose
capital punishment. The indictment would punish conduct that national
security journalists routinely engage in; no publisher has ever been
prosecuted for disclosing government secrets.... _

Supporters of Julian Assange, the founder of WikiLeaks, protested
outside the Royal Courts of Justice in London, where his legal team
made a final bid for an appeal against a U.S. extradition order.,
(Photo credit: New York Times)

 

On February 20 and 21, as nearly 1,000 supporters of Julian Assange
gathered outside the London courthouse, a two-judge panel of the High
Court of Justice presided over a “permission hearing.” Assange’s
lawyers asked the judges to allow them to appeal the home
secretary’s extradition order and raise issues that the district
court judge had rejected without full consideration.

The High Court panel, Dame Victoria Sharp and Justice Jeremy Johnson,
were concerned that the U.S. government could execute Assange if he is
extradited to the United States, a penalty outlawed in the U.K.
Although Assange faces 175 years in prison for the charges alleged in
the indictment, there is nothing to prevent the U.S. from adding
additional offenses which would carry the death penalty.

THE TRUMP ADMINISTRATION INDICTED ASSANGE FOR EXPOSING U.S. WAR CRIMES

Assange is charged with 17 counts of alleged violations of the
Espionage Act, based on obtaining, receiving, possessing and
publishing national defense information. He is accused of
“recruit[ing] sources” and “soliciting” confidential documents
just by maintaining the _WikiLeaks _website that stated it accepted
such materials. Assange is also charged with one count of
“conspiracy to commit computer intrusion” with intent to
“facilitate [whistleblower Chelsea] Manning’s acquisition and
transmission of classified information related to the national defence
of the United States.”

The basis for the indictment, Assange’s lawyers told the panel,
is _WikiLeaks_’s “exposure of criminality on the part of the U.S.
government on an unprecedented scale.” Assange is charged for
revealing war crimes committed by the United States in Iraq,
Afghanistan and Guantánamo Bay. The indictment has nothing to do with
Hillary Clinton and the 2016 election or Swedish allegations of sexual
misconduct, which have been dropped.

_WikiLeaks_ revealed the “Iraq War Logs” — 400,000 field
reports including 15,000 unreported deaths of Iraqi civilians, as well
the as systematic rape, torture and murder after U.S. forces handed
over detainees to a notorious Iraqi torture squad. The revelations
also included the “Afghan War Diary” — 90,000 reports of more
civilian casualties by coalition forces than the U.S. military had
reported.

In addition, _WikiLeaks_ revealed the “Guantánamo Files,” 779
secret reports with evidence that 150 innocent people had been held at
Guantánamo Bay for years, and 800 men and boys had been tortured and
abused, in violation of the Geneva Conventions and the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.

_WikiLeaks_ also revealed the notorious 2007 “Collateral Murder
Video,” in which a U.S. Army Apache attack helicopter targeted and
killed 11 unarmed civilians in Baghdad, including
two _Reuters_ journalists and a man who came to rescue the wounded.
Two children were injured. The video contains evidence of war crimes
prohibited by the Geneva Conventions.

And _WikiLeaks_ exposed “Cablegate” — 251,000 confidential
U.S. State Department cables that “disclosed corruption, diplomatic
scandals and spy affairs on an international scale.” According
to _The New York Times, _they told “the unvarnished story of how
the government makes its biggest decisions, the decisions that cost
the country most heavily in lives and money.”

“These were the most important revelations of criminal U.S. state
behavior in history,” Assange attorney Mark Summers argued to the
High Court panel.

ASSANGE’S APPELLATE ISSUES

Assange is asking the U.K. High Court to review issues of treaty
obligations, human rights violations and political persecution.

The U.S.-U.K. Extradition Treaty would allow the U.S. to amend or add
charges which could expose Assange to the death penalty, a punishment
prohibited in the U.K. In response to questioning by one of the
judges, the prosecutor admitted that the U.S. had not provided
assurances that Assange would not be subject to the death penalty if
extradited.

Article 4(1) of the extradition treaty does not allow extradition for
political offenses. Espionage is the “quintessential” political
offense, Assange attorney Edward Fitzgerald told the panel. “The
gravamen (and defining legal characteristic) of each of the charges is
thus an alleged intention to obtain or disclose US state secrets in a
manner that was damaging to the security of the US state,” which
makes them political offenses, Assange’s lawyers wrote
[[link removed]].
The defense claimed it was an abuse of process for the United States
to pursue extradition of Assange for a political offense.

The U.S. argued that the U.K. Extradition Act does not contain an
explicit exception for political offenses. But the defense said that
the political offense exclusion is an “age-old” prohibition found
in “virtually every” U.K. extradition treaty. It is included in
U.K. treaties with “156 out of 158” countries. Fitzgerald said you
can’t infer a deliberate intention to forbid extradition for
political offenses from the absence of explicit language in the
Extradition Act. Since the exception is not specifically included in
the act, U.K. District Judge Vanessa Baraitser didn’t fully consider
the issue in her ruling after Assange’s extradition hearing.  

“This prosecution is motivated by … a concerted intent to destroy
or inhibit the publishers of evidence of state criminal ability, and
thereby put a stop to the process of investigating, prosecuting and
preventing such international crimes in the future.”

Article 7 of the European Convention on Human Rights (ECHR) says,
“No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal
offence_ _under national or international law at the time when it was
committed.” Assange could not have been reasonably expected to know
that he could be prosecuted for publishing in the public interest,
because no publisher had ever been prosecuted under the Espionage Act
for publishing in the public interest before.

Article 10 of the ECHR protects freedom of expression, which includes
the right “to receive and impart information and ideas without
interference by public authority and regardless of frontiers.” The
information that _WikiLeaks_ revealed was true and Manning was
acting in good faith and in the public interest when she provided it
to _WikiLeaks_. Extradition would constitute a “flagrant denial”
of Assange’s right to freedom of expression, particularly because he
might be denied the protection of the First Amendment to the U.S.
Constitution, Assange’s lawyers argued to the panel.

Article 6 of the ECHR guarantees the right to a fair trial — It will
be very difficult for Assange to get a fair trial if he is extradited
to the United States. Assistant District Attorney Gordon Kromberg and
former CIA Director Mike Pompeo said that as a non-U.S. citizen,
Assange has no First Amendment rights. The First Amendment allows
journalists to publish material that was illegally obtained by a third
person if it is a matter of public interest. Justice Johnson was
concerned that the U.S. had given no assurances that foreign nationals
have First Amendment protection and asked both sides to provide
clarity on this issue. Additionally, if extradited, Assange would be
prosecuted in a federal court in the Eastern District of Virginia,
where the jury pool will be drawn from people associated with the U.S.
government national security agencies and contractors.

Articles 2 and 3 of the ECHR protect the right to life and the right
to be free from torture or inhuman or degrading treatment,
respectively. The CIA planned to kidnap and assassinate Assange, which
is an indication he will likely be subject to inhuman and degrading
treatment if extradited to the U.S. “If these state agencies were
prepared to go to these lengths whilst he was under the protection of
an embassy and located in the UK, there must be a real risk of similar
extra-judicial measures or reprisals if he is extradited to the
US,” Assange’s lawyers wrote
[[link removed]].

Article 4(3) of the extradition treaty forbids extradition if the
request is politically motivated and not made in good faith.
Assange’s lawyers wrote
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“this prosecution is motivated by matters other than the proper and
usual pursuit of criminal justice. It is motivated instead by a
concerted intent to destroy or inhibit the publishers of evidence of
state criminal ability, and thereby put a stop to the process of
investigating, prosecuting and preventing such international crimes in
the future.” One panel judge asked the defense where they could find
more information on this point.

Summers argued to the panel that although
the _WikiLeaks_ revelations at issue in the indictment occurred in
2010-2011, Assange wasn’t indicted until 2018-2019. That was
because _WikiLeaks_ revealed CIA spying tools in 2017, known as
“Vault 7,” which enabled the CIA to tap into people’s cell
phones and smart TVs, turning them into listening devices. Those
revelations infuriated Donald Trump’s CIA Director Pompeo, who
denounced _WikiLeaks_ as a “hostile, non-state intelligence
service,” a designation that would allow the CIA to act without the
knowledge of Congress. U.S. officials drew up plans to kidnap and/or
kill Assange. The Justice Department expedited the indictment of
Assange to facilitate prosecution once he was sent by extraordinary
rendition to the U.S. “This prosecution only emerged because of
that rendition plan,” Summers said.

In addition, extradition based on political opinion is forbidden.
Under the 1985 Supplementary Treaty, the judicial branch has the
authority to consider whether an extradition request is motivated by a
desire to punish the person for his or her political opinion.
“Exposing state criminality is a political act/opinion,”
Assange’s legal team wrote in its Renewal Skeleton. “It is
acknowledged by courts globally that prosecution for
exposing/challenging state-level pervasive criminality amounts to
persecution for reasons of ‘political opinion’.” Publicly
calling out a state for human rights abuses, can also constitute “an
act of political dissent”/“a political opinion.”

As his defense team wrote in its Closing Submissions, 
[[link removed]]Assange’s
political opinions that led to his indictment included his “exposure
of crimes against humanity and accountability for such crimes,” as
well as his belief in “political transparency as a means” to
accomplish “democratic accountability” and his antiwar,
anti-imperialist beliefs. Indicting Assange
after _WikiLeaks’_ exposé of Vault 7 in 2017, six years
after _WikiLeaks’ _2010-2011 revelations of war crimes, is further
evidence that Assange was charged for his political opinions.

“THE MOST IMPORTANT REVELATION SINCE ABU GHRAIB”

The Collateral Murder video is “the most important revelation since
Abu Ghraib,” Summers told the panel. “The cables Assange published
disclosed extrajudicial assassinations, rendition, torture, dark
prisons and drone killings.” Summers said the Guantánamo Files
revealed a “colossal criminal act.” The defense pointed out
that _WikiLeaks_’s revelations actually saved lives.
After _WikiLeaks_ published evidence of Iraqi torture centers
established by the U.S., the Iraqi government refused President Barack
Obama’s request to grant immunity to U.S. troops who committed
criminal and civil offenses there. As a result, Obama had to withdraw
U.S. forces from Iraq.

The Obama administration, which prosecuted more whistleblowers under
the Espionage Act than all prior U.S. administrations combined,
considered prosecuting Assange, but feared it would violate the First
Amendment. The administration was unable to distinguish
what _WikiLeaks_ did from what _The New York Times_ and _The
Guardian_ did since they also published documents that Chelsea
Manning had leaked.

But the Trump administration did indict Julian Assange. The U.K.
arrested Assange and has held him in Belmarsh Prison for nearly five
years pending a decision on whether he should be extradited to the
U.S. to stand trial.

In January 2021, following a three-week hearing, Baraitser denied
extradition after finding that Assange’s mental health was so frail
there was a “substantial risk” of suicide if he was extradited to
the U.S. because of the harsh conditions of confinement in which he
would be held. But she rejected all other legal objections to
extradition that Assange had raised.

U.S. “ASSURANCES” THAT ASSANGE WILL BE TREATED HUMANELY

After Baraitser had already ruled, the U.S. came forward with
diplomatic “assurances” that Assange would be treated humanely if
extradited to the United States. The Biden administration assured the
court that Assange: (1) would not be subject to onerous Special
Administrative Measures (SAMs) that would keep him in extreme
isolation and monitor his confidential communications with his
attorneys; (2) would not be housed at the notorious ADX Florence
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security prison in Colorado; (3) would receive psychological and
clinical treatment in custody; and (4) could serve any custodial
sentence in Australia.

But the U.S. said the assurances wouldn’t apply if Assange committed
a “future act” that “met the test” for the SAMs. That
unspecified contingency would be based on a subjective determination
of prison authorities with no judicial review.

Although the United States has reneged
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nearly identical assurances in the past, the High Court accepted them
at face value, saying it was satisfied that the U.S. was acting in
good faith, and in December 2021, the High Court reversed
Baraitser’s denial of extradition.

However, in a 2023 decision, the U.K. Supreme Court unanimously held
that the court has an independent duty to determine the validity of
assurances, writing
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“The government’s assessment of whether there is such a risk is an
important element of that evidence, but the court is bound to consider
the question in the light of the evidence as a whole and to reach its
own conclusion.”

In June 2023, a single High Court judge, Jonathan Swift, refused
Assange permission to appeal in a cursory three-page ruling. The
hearing on February 20 and 21 was an effort by Assange’s legal team
to reverse that decision so that the High Court will entertain his
appeal.

ASSANGE REDACTED NAMES OF INFORMANTS TO PROTECT THEM

At the February 21 hearing, prosecutor Clare Dobbin told the panel
that documents in which names hadn’t been redacted were published,
putting the individuals and the U.S. at grave risk. One of the judges
asked Dobbin if it wasn’t true that this information was published
by others first, to which Dobbin replied that Assange was responsible
for putting the information in the hands of others in the first place.

Several witnesses testified at the 2020 extradition hearing that
Assange took great care to ensure that the names were redacted. Other
outlets published the unredacted cables before _WikiLeaks_ with no
adverse consequences. John Young, from cryptome.org, testified
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the extradition hearing and wrote
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a Justice Department submission form, “Cryptome published the
decrypted unredacted State Department Cables on September 1, 2011
prior to publication of the cables by _WikiLeaks_.” Digital
experts testified
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the publication of a password by _Guardian_ journalists Luke Harding
and David Leigh ultimately led to the unredacted publication.

Moreover, Brig. Gen. Robert Carr testified
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Manning’s court martial that no one was harmed by
the _WikiLeaks _releases. Summers told the panel that Baraitser
never balanced the public interest in the disclosures against the fact
that no harm came from them.

CONVICTION OF ASSANGE WOULD CHILL INVESTIGATE JOURNALISTS FROM
EXPOSING GOVERNMENT SECRETS

In November 2022, _The New York Times, The Guardian, Le Monde, DER
SPIEGEL_ and _El País_ signed a joint open letter
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on the Biden administration to drop the Espionage Act charges against
Assange. They wrote, “Publishing is not a crime,” noting that
Assange is the first publisher to be charged under the Espionage Act
for revealing government secrets.

The indictment would punish conduct that national security journalists
routinely engage in, including cultivating and communicating
confidentially with sources and soliciting information from them,
shielding their identities from disclosure, and publishing classified
information. If Assange is prosecuted and convicted, it will
discourage journalists both in the U.S. and abroad from publishing
evidence of government wrongdoing.

No publisher has ever been prosecuted under the Espionage Act for
disclosing government secrets. The U.S. government has never
prosecuted a publisher for publishing classified information, which
constitutes an essential tool of investigative journalism.

But rather than dropping Trump’s prosecution of Assange consistent
with the position of the Obama-Biden administration, Joe Biden has
zealously pursued extradition and prosecution.

PENDING HOUSE RESOLUTION WOULD CALL FOR DISMISSAL OF ALL CHARGES
AGAINST ASSANGE

On December 13, 2023, House Resolution 934
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introduced in the U.S. House of Representatives by Rep. Paul A. Gosar
(R-Arizona), with cosponsors from both political parties. It would
express “the sense of the House of Representatives that regular
journalistic activities are protected under the First Amendment, and
that the United States ought to drop all charges against and attempts
to extradite Julian Assange.” The resolution states that
the _WikiLeaks_ disclosures “promoted public transparency through
the exposure of the hiring of child prostitutes by Defence Department
contractors, friendly fire incidents, human rights abuses, civilian
killings, and United States use of psychological warfare.”

Assange was charged with one count of the Computer Fraud and Abuse
Act, HR 934 notes, “despite the fact that said intelligence analyst
already had access to the mentioned computer, that the purported
breaching of the Defense Department computers was impossible, and that
there was no proof Mr. Assange had any contact with said intelligence
analyst.” The conviction of Assange under the Espionage Act, the
resolution continues, “would set a precedent allowing the United
States to prosecute and imprison journalists for First Amendment
protected activities, including the obtainment and publication of
information, something that occurs on a regular basis.”

On February 14, I joined nearly 40 law professors in sending a letter
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the Department of Justice, stating that the Espionage Act charges
against Assange “pose an existential threat to the First
Amendment.” We expressed alarm that the constitutional implications
of prosecuting Assange “could extend beyond the Espionage Act and
beyond national security journalism [to] enable prosecution of routine
newsgathering under any number of ambiguous laws and untested legal
theories.”

At the conclusion of the two-day hearing, the High Court panel set a
due date of March 4 for further written submissions from the parties.
If the court agrees to review at least one of Assange’s appellate
issues, there will be a full hearing. Meanwhile, Assange, who is in
poor physical and emotional health, remains in prison.

If the High Court denies his right to appeal, Assange can ask the
European Court of Human Rights to hear his case. If that court finds
“exceptional circumstances” and an “imminent risk of irreparable
harm,” it can order provisional measures, including a stay of
execution while the case is pending in the European court. But there
is a danger that the U.K. could immediately extradite Assange to the
United States before the European Court of Human Rights has a chance
to consider Assange’s petition.

_[MARJORIE COHN is professor emerita at Thomas Jefferson School of
Law, former president of the National Lawyers Guild, and a member of
the national advisory boards of Assange Defense and Veterans For
Peace, and the bureau of the International Association of Democratic
Lawyers. She is founding dean of the People’s Academy of
International Law and the U.S. representative to the continental
advisory council of the Association of American Jurists. Her books
include Drones and Targeted Killing: Legal, Moral and Geopolitical
Issues. She is co-host of “Law and Disorder” Radio.]_

_Copyright © Truthout [[link removed]]. Reprinted with
permission. May not be reprinted without permission._

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* Julian Assange
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* extradiction
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* WikiLeaks
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* Iraq War
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* Afghanistan War
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* Guantanamo
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* Chelsea Manning
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* Espionage Act
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* Capital Punishment
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* national security
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* freedom of the press
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* CIA
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* espionage
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* Abu Ghraib
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* government secrets
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* House Resolution 934
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