US Refuses to Assure UK Judges That Assange Won’t Be Executed If He’s Extradited

UK law prohibits extradition to a country that may impose capital punishment.

By Marjorie Cohn , TRUTHOUT, February 27, 2024

n 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. The defense claimed it was an abuse of process for the United States to pursue extradition of Assange for a political offense……………………………………………………………………………….

“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 maximum 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 on 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, “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

…………………… 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. 

………………….Moreover, Brig. Gen. Robert Carr testified at 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 calling 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 was 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.”

…………… 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.”

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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.

 https://truthout.org/articles/us-refuses-to-assure-uk-judges-that-assange-wont-be-executed-if-hes-extradited/—

March 3, 2024 Posted by Christina Macpherson | Legal, Reference, secrets,lies and civil liberties, USA | Leave a comment