UPDATED: The United States on Tuesday met the deadline with assurances on the death penalty and the 1st Amendment, the latter of which Stella Assange called a “non-assurance.”
Special to Consortium News
The United States on Tuesday filed two assurances with the High Court of England and Wales, saying it would not seek the death penalty against imprisoned WikiLeaks‘ publisher Julian Assange and would allow Assange to “‘seek to raise’ the First Amendment if extradited,” according to Stella Assange, Assange’s wife.
The U.S. “makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a U.S citizen,” she said. “Instead, the US has limited itself to blatant weasel words claiming that Julian can ‘seek to raise’ the First Amendment if extradited.”
The U.S. was legally restricted to assure a free speech guarantee to Assange equivalent to Article 10 of the European Court of Human Rights, which the British court is bound to follow. Without that assurance, Assange should be freed according to a British Crown Prosecution Service comment on extraditions.
In USAID v. Alliance for Open Society, the U.S. Supreme Court ruled in 2020 that non-U.S. citizens outside the U.S. don’t possess constitutional rights. Both former C.I.A. Director Mike Pompeo and Gordon Kromberg, Assange’s U.S. prosecutor, have said Assange does not have First Amendment protection.
Also because of the separation of powers in the United States, the executive branch’s Justice Department can’t guarantee to the British courts what the U.S. judicial branch decides about the rights of a non-U.S. citizen in court, said Marjorie Cohn, law professor and former president of the National Lawyers’ Guild.
“Let’s assume that … the Biden administration, does give assurances that he would be able to raise the First Amendment and that the [High] Court found that those were significant assurances,” Cohn told Consortium News‘ webcast CN Live! last month. “That really doesn’t mean anything, because one of the things that the British courts don’t understand is the U.S. doctrine of separation of powers.”
“The prosecutors can give all the assurances they want, but the judiciary, another [one] .. of these three branches of government in the U.S., doesn’t have to abide by the executive branch claim or assurance,” Cohn said.
In other words, whether Assange can rely on the First Amendment in his defense in a U.S. court is up to that court not Kromberg or the Department of Justice, which issued the assurance on Tuesday.
“The United States has issued a non-assurance in relation to the First Amendment,” said Stella Assange.
Assange Can Challenge Assurances
Assange’s legal team now has the right to challenge the credibility and validity of the U.S. assurances filed on Tuesday. The U.S. would then have a right to reply to Assange’s legal submissions to the court, which will hold a hearing on May 20 to determine whether or not to accept the U.S. assurances.
If the court does, Assange can be put on a plane to the U.S. theoretically that day. If not Assange would be granted a full appeal against the Home Office’s 2022 order to extradite him. Assange is wanted in the U.S. on 17 charges under the 1917 Espionage Act and one on conspiracy to commit computer intrusion. He faces up to 175 years in a U.S. dungeon.
“The diplomatic note does nothing to relieve our family’s extreme distress about his future — his grim expectation of spending the rest of his life in isolation in US prison for publishing award-winning journalism,” Stella Assange said.
In its 66-page ruling on March 26, the two High Court judges wrote that Kromberg would not have said Assange would not have First Amendment rights at trial “unless that was a tenable argument that the prosecution was entitled to deploy with a real prospect of success.”
“If such an argument were to succeed it would (at least arguably) cause the applicant [Assange] prejudice on the grounds of his non-US citizenship (and hence, on the grounds of his nationality),” the judges said.
This is the statement Stella Assange put out on X Tuesday at 11:36 am EDT:
“The United States has issued a non-assurance in relation to the First Amendment, and a standard assurance in relation to the death penalty. It makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a U.S citizen. Instead, the US has limited itself to blatant weasel words claiming that Julian can ‘seek to raise’ the First Amendment if extradited. The diplomatic note does nothing to relieve our family’s extreme distress about his future — his grim expectation of spending the rest of his life in isolation in US prison for publishing award-winning journalism. The Biden Administration must drop this dangerous prosecution before it is too late.”
Developing story. Please come back for updates.
Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and other newspapers, including The Montreal Gazette, the London Daily Mail and The Star of Johannesburg. He was an investigative reporter for the Sunday Times of London, a financial reporter for Bloomberg News and began his professional work as a 19-year old stringer for The New York Times. He is the author of two books, A Political Odyssey, with Sen. Mike Gravel, foreword by Daniel Ellsberg; and How I Lost By Hillary Clinton, foreword by Julian Assange. He can be reached at joelauria@consortiumnews.com and followed on Twitter @unjoe
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