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Setback for Assange prosecution appeal after intervention by former government minister—The Canary, Feb. 20, 2021

Tom Coburg

It’s been reported that the US authorities will appeal the recent UK ruling that Julian Assange should not be extradited to the US. However, in the meantime, the case against WikiLeaks founder Assange has met resistance. A former Conservative cabinet minister has made a statement to parliament regarding the UK Extradition Act which could undermine the prosecution’s appeal.

Intervention in the Commons

David Davis MP told parliament:

Although we cannot, of course, discuss the substance of the Assange judgment here today, the House must note the worrying development more generally in our extradition arrangements – extradition for political offences. This stems from an erroneous interpretation of Parliament’s intention in 2003. This must now be clarified.

Article 4 of the U.K.-U.S. extradition treaty provides that extradition will not be granted for political offences. In the U.K., the treaty was implemented in the Extradition Act 2003. It has been claimed that, because the Act does not specifically refer to political offences, Parliament explicitly took the decision to remove the bar when passing the Act in 2003. That is not the case – Parliament had no such intention. Had it intended such a massive deviation from our centuries-long tradition of providing asylum, it would have been explicit.

Indeed, in a 9 December 2002 Commons debate, parliamentary under-secretary of state for the home department Bob Ainsworth MP stated that the then Extradition bill would:

ensure that no one can be extradited where the request is politically motivated, where the double jeopardy rule applies or where the fugitive’s medical condition—an issue raised by my hon. Friend the Member for Leyton and Wanstead (Harry Cohen)—would make it unjust.

But there is a political get-out

Ainsworth went on to say that under the terms of the bill, “extradition will not be allowed of people being prosecuted or punished for crimes that are accounted for by their race, religion, nationality or political opinions”.

Also, at the extradition hearing, Edward Fitzgerald QC for the defence referred to a submission, which quoted from the 2003 US-UK extradition treaty (ratified in 2007) – namely:

extradition shall not be granted if the offence for which extradition is requested is a political offence

The Canary also reported in a June 2019 article that:

It should also be noted that none of the other media outlets that partnered with WikiLeaks has been charged. And so it could be argued that the charges raised against Assange amount to selective prosecution. That could equate to political prosecution, which is grounds under UK extradition arrangements for US requests to be denied. US lawyer Jacques Semmelman, who specialises in extradition cases, agrees. He argues that the charges raised against Assange are political, saying:

“It is a classic political offense. I have a difficult time seeing a British court departing so significantly from legal tradition and saying in this case they will make an exception. The political offense exception as it has existed for probably 150 years has consistently maintained that for espionage charges, they are not extraditable. That’s just a classic principle of international extradition law.”

Cross-appeal considered

District judge Vanessa Baraitser had ruled that Assange should not be extradited because once in the US Assange would be likely to attempt to take his own life:

I am satisfied that, in these harsh conditions, Mr. Assange’s mental health would deteriorate causing him to commit suicide with the ‘single minded determination’ of his autism spectrum disorder.

Referring to the January ruling, Assange’s partner Stella Moris commented:

We wanted a U.K. court to properly quash the extradition and refute the other grounds too. We wanted a finding that the extradition is an attempt to criminalise journalism, not just in the U.S. but in the U.K. and the rest of the world as well; and that the decision to indict Julian was a political act, a violation of the treaty, a violation of his human rights and an abuse of process.

Julian’s extradition team is considering all these issues, and whether they can be cross-appealed.

Another err?

In her ruling Baraitser concluded: “The defence has not established that Mr. Assange has been the target of a politically motivated prosecution”. In other words, her interpretation of ‘politically’ was not about Assange and his motivations but the US prosecution. That can easily be challenged, as observed in a May 2019 article in The Canary.

For example, CIA chief Mike Pompeo described WikiLeaks as a “hostile intelligence service”. There have also been numerous threats (including death threats) against Assange from the US, including by senior politicians:

  • Former Republican vice-presidential candidate Sarah Palin demanded that Assange be hunted down “like an al-Qaeda or Taliban leader”.
  • In 2010, former US vice-president Joe Biden referred to Assange as a “high-tech terrorist”.
  • Former political operative and media pundit Bob Beckel suggested in 2011 that the US should assassinate Assange, saying: “A dead man can’t leak stuff. This guy’s a traitor… treasonous. And he has broken every law of the United States… And I’m not for the death penalty, so… there’s only one way to do it: illegally shoot the son of a bitch”.

And there’s this:

Another political bar

But there’s yet another ‘political’ dimension.

Last year 154 lawyers sent a letter to prime minister Boris Johnson, the lord chancellor and secretary of state for justice Robert Buckland QC, the secretary of state for foreign affairs Dominic Raab, and home secretary Priti Patel, pointing out that:

Charges 1-17 [raised against Assange] are brought under the Espionage Act 1917, which, in name alone, reveals the political and antiquated nature of the charges.

The letter added:

The UK-US Extradition Treaty, which provides the very basis of the extradition request, specifically prohibits extradition for political offences in Art. 4(1).

And that:

there is broad international consensus that political offences should not be the basis of extradition.[ix] This is reflected in Art. 3 of the 1957 European Convention on Extradition, Art. 3 ECHR, Art. 3(a) of the UN Model Treaty on Extradition, the Interpol Constitution and every bilateral treaty ratified by the US for over a century.

Release Assange

On 8 February, 24 rights organisations – including Amnesty International USA and Human Rights Watch – appealed to the US acting attorney-general to end the prosecution of Assange, saying: It is unfortunately the case that press freedom is under threat globally. Now more than ever, it is Pentagon Papers case memorably called a “cantankerous press, an obstinate press, an ubiquitous press”—in the United States and abroad. With this end in mind, we respectfully urge you to forgo the appeal of Judge Baraitser’s ruling, and to dismiss the indictment of Mr. Assange. Meanwhile, given Davis’ comments, a counter-claim by the defence to a higher court arguing that Baraitser has erred in law could see the prosecution case falter, if not collapse.