Classified Documents Invalidate United States’ Appeal Against Assange — Richard Medhurst

‘‘I’m scared that will be Assange. They will make him go nuts.”

“I’m a nobody. If they’re capable of doing this to me, just imagine what they can do to Assange.”

The United States Broke Diplomatic Assurances for David Mendoza, It Will Do the Same with Julian Assange Richard Medhurst’s Newsletter 

Richard MedhurstNov 29

Richard Medhurst Nov 29 In 2009, David Mendoza Herrarte was extradited from Spain to the United States, on condition he be allowed to serve his sentence in SpainClassified documents reveal the diplomatic assurances given by the U.S. Embassy in Madrid and how the U.S. violated the conditions of his extraditionMendoza spent over 6 years in the United States trying to return to Spain. Court documents show how the United States denied his transfer application multiple timesWhile in prison, Mendoza sued the United States, and Spain for failing to uphold the conditions of his extradition and violating his human rights. His case was recently taken up by the United Nations

• Mendoza’s case was raised last month in the English High Court, where the United States is attempting to extradite Julian Assange to the U.S.
• The United States has offered similar diplomatic assurances that Assange could serve a sentence in Australia
• Assange’s lawyers cite Mendoza’s case as evidence that these assurances cannot be trusted
• James Lewis, the lead U.S. prosecutor, said that these assurances are bulletproof. He told the High Court that, “The United States have never broken a diplomatic assurance, ever”. Court documents and diplomatic assurances obtained by Richard Medhurst show this to be untrue

• David Mendoza Herrarte was born and raised in the United States. His mother being from Spain, he would go there every summer, describing it to me as his second home. He is both an American and Spanish national.
  
  Mendoza was wanted by the United States for drug trafficking. In the early 2000s, he used helicopters to transport marijuana, known commonly as BC Bud, from Canada across the U.S. border into Seattle. Today, marijuana is legal in Seattle………………………………………………
• The diplomatic assurance did not specifically state that Mendoza would be sent to Spain to serve his sentence. It only said that the United States “does not object to Mendoza making an application to serve his sentence in Spain”– something the United States cannot object to anyway, as it is every prisoner’s right to apply for a treaty transfer.

Mendoza tells me, “This shows the deviance of these people. They use this ambiguous language on purpose. There’s precedent in federal court that if they don’t specifically agree to the transfer, it’s not valid”.

Recently, the United States offered similar diplomatic assurances to the United Kingdom, namely that Assange could could serve a sentence in his home country of Australia.

Mendoza says for this to be valid, the diplomatic assurances from the U.S. must explicitly state in advance that the U.S. Department of Justice and Australia accept Assange’s transfer— otherwise it’s meaningless.

 “With the Assange thing, I can see it black and white. They [Australia] are not going to do a thing. Under the treaty, all three parties must agree: Julian, Australia, and the United States. But the U.S. can tell Australia behind the scenes: ‘screw this guy, don’t do anything’.”

• The Convention on the Transfer of Sentenced Persons specifically states under Article 3 (f) that a sentenced person may be transferred “if the sentencing and administering States agree to the transfer.” (The administering state meaning Australia)Being one of the few journalists to cover Assange’s extradition, I can confirm that as of now Australia has not given any indication that it would accept Julian Assange’s request to serve a sentence there, should he apply……….
• April 2009: David Mendoza Herrarte is extradited to the United States

After signing the Acta de Entrega, Mendoza was officially under U.S. jurisdiction. He recalls being handed over to U.S. authorities: “The first thing they do when they get you, is they strip you naked. The marshals look in your mouth, your ass, your ears, every orifice. They attempt to humiliate you in every fashion: ‘Squat! Now do this…’. They tell you: you’re under US jurisdiction now, and our law is what is going to apply to you.”

June 2009: Once in the United States, Mendoza took part in what is known as an arbitration hearing or settlement conference. This is where plea bargains are hashed out in the presence of the judge, between prosecutors and defendant……………………………………………

• It now became clear that the United States never intended to send Mendoza back to Spain. They had squeezed him for every last penny, then violated the diplomatic assurances given to Spain………….
• Mendoza expects the United States government will play the same trick on Assange if they refuse to send him to Australia and he contests it in court.“Within that note, it must specifically state that Julian has a right to contest non-compliance of the United States, even as a non-signatory to the treaty. Because the US will start playing games.”…………….
• Instead of being sent to Spain immediately to carry out his sentence, Mendoza was told to apply for a treaty transfer. He applied, and the answer from the United States was ‘no’……………

In total, Mendoza applied three times for treaty transfer to Spain. All three applications were denied, violating the conditions of his extradition. Each time he applied, he had to wait 8 months for a decision, and even longer to apply again. The denial states: “There is no administrative appeal from this decision. Unless otherwise noted above, the prisoner may reapply two years after this denial.”
Mendoza told me: “That’s when I realized I’m in the wrong court. I’m going to get nothing here. ……………………..

The other assurance offered by the United States appears to state that Assange would not be jailed at ADX Florence or placed under oppressive prison conditions known as Special Administrative Measures (SAMs).

Similiar to those offered for Mendoza, the assurances for Assange are ambiguous and vaguely-worded. The United States says he will not be subject to SAMs or imprisoned at ADX unless “in the event that, after entry of this assurance, he was to commit any future act that met the test for the imposition of a SAM pursuant to 28 C.F.R. § 501.2 or § 501.3”

Once in U.S. custody, the United States could simply allege that Assange did something that “met the test for the imposition of a SAM”, place him in isolation, and then claim that it never violated its assurances, because it already gave itself a backdoor to do so.

This is why Mendoza told me that assurances must be explicitly spelled out, with no room for derogation.

Assange’s extradition was blocked by a UK judge in January 2021, on grounds that U.S. prison conditions would be too oppressive, leading him to commit suicide.

While in the U.S., Mendoza was imprisoned at a medium-high security facility in Englewood, Colorado. This is near ADX Florence, where Assange is likely to be sent.

“Believe me, European prisons aren’t nice. But U.S. prisons are much worse. I was in Colorado, one of the biggest s–tholes I’ve ever been to. It was dirty; they let you out of your cell one hour a day– when they decided, not when I wanted.”…….. It’s 3am, for example, they would buzz you and say: do you want your hour of recreation?”. Prisoners who declined would not be able to leave their cell until the next day.

Mendoza explained to me the process of dehumanization and sleep deprivation in prison: “You don’t have a name; you have a number, and you have to repeat it during every count. Counts are every three hours in higher security federal prisons. Another thing guards would do is instead of pointing their flashlight up to the ceiling, they would flash it right in your face.”

“I’m scared that will be Assange. They will make him go nuts. The only thing that kept me sane is this legal work; writing to the judges and the press, going after the United States in civil court.”

What Mendoza went through is a step down from what Assange would be in. Not only is ADX Florence a federal super-maximum prison, but Assange would also be placed under Special Administrative Measures (SAMs), in extreme isolation.

Mendoza tells me that visitation had to be approved by specific people. ……………………

Mendoza’s case is an incredible story on its own merits.

Nevertheless, it must be examined in the context of Assange’s extradition. When James Lewis told High Court judges that “the United States have never broken a diplomatic assurance, ever”— this is simply untrue.

The above documents [on original] make it clear that the United States violated its agreement and broke diplomatic assurances to Spain. Mendoza was to be returned to Spain to carry out his sentence, instead he spent six years and nine months in various U.S. prisons. Only after suing both the United States and Spain— his own countries— for failing to enforce the conditions of his extradition, was he allowed to return. Only after the Spanish Supreme Court ruled in his favor, threatening the U.S.-Spain Extradition Treaty itself, could he compel the United States to enforce the conditions of his extradition and return him to Spain.

Mendoza was fortunate enough to have the Spanish Supreme Court, senior judges and public on his side. Were the United States to violate the assurances of Assange’s extradition, it is extremely unlikely given the “Special Relationship” between the U.K. and U.S., that Assange would be able to successfully lobby the British government into compelling the U.S. to uphold the conditions of his extradition.

James Lewis told the English High Court that diplomatic assurances are “solemn undertakings, given out at the highest order; they are not dished out like smarties”. He is correct. It is therefore incumbent on the Court to consider what happened to Mendoza, for whom the United States did offer diplomatic assurances, and assess whether those offered for Assange are adequate, but more importantly, whether they can be enforced once he is no longer under British jurisdiction.

Mendoza’s experience shows that for Assange, any diplomatic assurances or agreements must be written in explicit language and signed by all parties, including Assange, so that in the eventuality of non-compliance, he may be afforded the opportunity to contest this in court, despite his status as a non-signatory of the United Kingdom-United States Extradition Treaty.

Mendoza’s case offers the Court extraordinary insight into the innerworkings of American diplomacy, legal proceedings, and extradition to the United States. It is a serious warning which High Court Justices should heed, who at their discretion, have the power to prevent gross miscarriages of justice which gravely imperil the respondent, before they arise.

“I’m a nobody. If they’re capable of doing this to me, just imagine what they can do to Assange.”  https://richardmedhurst.substack.com/p/mendoza

December 15, 2021 Posted by Christina Macpherson | Legal, politics international, secrets,lies and civil liberties | Leave a comment