THE EXTRADITION PROCESS
In fact we now come to a brief moment in which the Swedish project appeared to cut across the US project.
When Assange took refuge in the embassy in June 2012 there was no shortage of people telling him that his fear of extradition to the US was nonsense. Quoting from Lord's account (ch.14) 'Two days after he had entered the embassy the Washington Post editorial board wrote that the US extradition concerns of Assange, "the Australian hacker" were just "fantasy"'. The Australian Foreign Minister, Bob Carr, referring to the rumours of a Grand Jury, declared 'there's not the remotest evidence that that's the case.' A Guardian editorial insisted that 'Miss A and Miss W are at the heart of this story' and there was 'no serious evidence that Washington plans to start [extradition] proceedings.' The Guardian's vendetta against Assange is a story in itself, too complicated to go into here. 'In August 2012' - the month when Ecuador granted him asylum, Lord tells us (ch.9): 'Reuters falsely reported that the USA had "no current case" against Assange, and State Department spokeswoman Victoria Nuland dismissed his extradition concerns as "wild assertions" - "He is clearly trying to deflect attention away from the real issue" Nuland said.'
But of course the very day Assange was manhandled (video of the event shows at least nine burly men pretending they were having difficulty doing it) out of the embassy the indictment was unsealed and extradition demanded. As Melzer puts it (p.214): 'For years Assange has feared the United States would demand his extradition as soon as he was to set foot outside the embassy - and for years he has been ridiculed as paranoid and unreasonable for it. But on the day of his expulsion from the embassy, Assange's worst nightmare comes true; the US unseals its secret indictment against him and formally requests his extradition from the United Kingdom.'
At the same time: 'Assange's personal belongings, including professional documents and computers, remain in the Ecuadorian embassy. They are not handed over to his lawyers or to his family or to the British authorities, but straight to the United States.'
Melzer elaborates on what Assange could expect once he landed up in the US, giving a list of death threats interestingly different from the one I gave earlier, as well as describing what was done to whistleblower and former CIA agent, John Kiriakou who revealed CIA torture methods, including waterboarding (he got 45 years) and to Bradley - now Chelsea - Manning (a story that is part and parcel of the Assange story but I haven't been able to pursue it here). He describes the 'Special Administrative Measures' likely to be imposed on him.
The sealed indictment revealed to the world at the moment of Assange's arrest on 11th April 2019 seemed, at first sight, surprisingly modest. Assange was charged with 'conspiracy to commit computer intrusion' on the basis of an exchange of emails between Manning and a representative of Wikileaks who might have been Assange, in which they discuss a password that would have enabled Manning to access anonymously material he was able to access under his own name on the basis of his security clearance. Manning, incidentally, had been released by Obama on the last day of his presidency as a way of massaging his reputation, but was back in prison because she refused to testify against Assange. Anyone who feels inclined to mock transsexuals should keep it in mind that this particular transsexual is one of the outstanding heroes - or heroines - of the age.
The maximum penalty for this 'crime' would have been five years. As Melzer comments, however (p.69), it was pretty obvious that 'the United States wanted to avoid officially charging Assange with espionage, at least for the time being. Espionage being the classic example of a political offence, any such charge would have blocked Assange's extradition under Article 4 of the Anglo-American Extradition of 2003, which expressly prohibits extraditions for political offences.' Once they had him in the US, land of the free, however, they could do what they liked with him.
It was at this point, however, that the Swedes became a nuisance.
The allegations made by Anna Ardin had, as we have seen, run out of time under the Statute of Limitations in 2015, but the case of SW still had 15 months to run, to August 2020. Under pressure from the Swedish Supreme Court, Marianne Ny had finally, in November 2016, agreed that Assange could be interviewed in the embassy and submit his witness statement. (25)
(25) It is available at https://www.craigmurray.org.uk/archives/2016/12/julian-assanges-defence-statement/
But she had then continued to procrastinate, neither issuing an indictment nor closing the case. The Swedish Code of Judicial Procedure specifies (Melzer p.191) that 'Upon the conclusion of the preliminary investigation decision on whether to institute a prosecution shall be issued ... When there is no longer reason for pursuing the investigation, it shall be discontinued.' On those grounds the Supreme Court was threatening to take the case out of her hands.
'On 19th May 2017, Prosecutor Ny chooses the only option that allows her to circumvent these safeguards of the law and to continue to perpetuate the rape suspect narrative against Assange without the required evidence. She "discontinues" the preliminary investigation into the alleged rape of S, but claims that its proper conclusion is rendered impossible because Assange remains under the protection of the Ecuadorian embassy ... ' She claims that '"to continue with legal proceedings would require Julian Assange's appearance in court", thereby implying that his absence is the only reason for not proceeding with a formal indictment and trial.'
Melzer explains that this is totally spurious: 'the decision to formally charge a suspect never depends on his physical presence but on the strength of the evidence against him.' He goes on to describe the petty vindictiveness by which, only a few days before announcing this decision and bowing out of the scene, she refused Assange's request to be allowed, with all necessary safeguards, to be present at the birth of his son (by his partner Stella Morris who had been visiting him in the embassy).
Once the Swedish case had been withdrawn - with the 'rape' allegation still hanging over him - all that was left was the violation of the bail. The whole responsibility now lay with the British government.
Marianne Ny had retired by the time Assange was bundled out of the embassy, but on 13th May 2019, the Deputy Director of Public Prosecution, Eva-Marie Persson, suddenly revived the 'preliminary investigation' - a preliminary investigation that had now lasted ten years. So there were now two competing extradition requests, and since the Swedish request predated the US request it could have been given priority. Indeed this was demanded by a petition co-ordinated by Labour's Stella Creasey and supported by 70 MPs. But as the journalist Jonathan Cook commented, the petition amounted to a legitimation of the US extradition request: 'This is no longer about an illegitimate US extradition request on Assange we should all be loudly protesting. It is a competition between two legal claims, and a debate about which one should find legal remedy first.' (26)
(26) Medialens account.
But in the event the question didn't arise:
'It took the United States just ten days to put their heavy foot down. On 23rd May 2019 ... the US Department of Justice transmitted its first "superseding indictment", extending their list of charges by seventeen additional counts under the Espionage Act of 1917. From now on the US case against Assange was no longer some failed attempt to decode a password hash, but plainly and blatantly about espionage - the classic textbook example of a political offence. ... For each count Assange now faced an additional sentence of up to ten years in prison, resulting in a possible prison sentence of up to 175 years. The disparity with the Swedish maximum sentence of four years was now so great, and the US claim to priority had been so unequivocally stated, that a possible Swedish extradition request would have to come second.' (Melzer, p.84)
As a result, by the time the actual 'show trial', as Melzer calls it, opened on 24th February 2020, the US extradition request was open to the objection that the offences were political in nature, though they were still mixed up with the very dubious accusations of hacking. This article is already long, and I don't feel I've got the energy to detail the succession of outrages that occurred under the supervision of Judge Vanessa Baraitser. They are given in Melzer's book and also in the day by day detailed reports posted on his blog by Craig Murray, who actually describes moments when even the prosecution is shocked by her behaviour. But Baraitser's judgment, (27) given on 4th January 2021, is a masterpiece of the deep apparently ineradicable cynicism of the British judicial system.
(27) All 132 pages of it - https://www.judiciary.uk/wp-content/uploads/2021/01/USA-v-Assange-judgment-040121.pdf
The defence argued that the accusations made against Assange were political in nature and were therefore excluded under Article 4 of the Extradition Treaty signed with the US. The prosecution argued that the political exemption was not mentioned in the Act of Parliament under which the treaty was passed into British law, and it is British law, not the treaty, that counts. Baraitser in her judgment, predictably following her whole conduct of the trial, accepted the whole prosecution case. But then, quite unpredictably, she refused the US extradition request and ordered that Assange be allowed to go free. 'Julian Assange Imminent Freedom' was the heading of Craig Murray's jubilant report of the judgement. (28) She justified this on the grounds of Assange's mental health - that if he was sent to the US there was a very high probability that he would commit suicide. He had indeed told Melzer (p.67) 'that he would not be extradited to the United States alive.'
(28) https://www.craigmurray.org.uk/archives/2021/01/julian-assange-imminent-freedom/
Needless to say Assange was not allowed to go free because the US immediately and predictably launched an appeal, and Baraitser immediately and predictably refused bail. So how can we account for her refusing the extradition request? Following Melzer's account (pp.320-1), in accepting the whole of the prosecution case, 'Judge Baraitser laid the legal foundation for the prosecution of anyone, anywhere in the world who dared to expose the dirty secrets of the government concerned, and for depriving defendants of the right to justify their actions based on the public interest. In effect she had set a legal precedent amounting to introducing an absolute duty of silence on classified evidence for state sponsored crimes.' Had the defence been able to launch an appeal, however, 'the case would be examined by a more experienced and authoritative panel of judges whose decision would be difficult to predict. In order to avoid a full legal review of her judgment by the High Court, Judge Baraitser had to forestall an appeal by Assange's legal team.' Instead, then of an Assange appeal against a judgement in favour of extradition, 'it would be up to the US government, and not Assange, to lodge an appeal and, therefore, to select the legal questions that would be reviewed by the High Court ... In this scenario, the British High Court would not have to examine any of Assange's legal objections regarding the political nature of the prosecution, the prohibition of extraditions for political offences, freedom of speech or the systematic abuse of process throughout this case.'
The only point at issue, then, was whether or not the United States can give assurances that their treatment of Assange would not be such as to cause him to commit suicide. Meanwhile, attention is focussed on Assange's mental instability, just as the failure of the Swedish prosecutors to bring charges before the time available for all the accusations against him ran out leaves him still under the suspicion of sexual misconduct. And of course he remains in the closest thing the UK has to a Supermax prison.
Melzer continues the story (p.326): 'On August 2021, High Court Justices Timothy Holroyde and Judith Farley upheld an appeal by the US government against Justice Swift's decision of 5th July [Swift had upheld only three out of the five grounds for the US appeal] and granted the United States permission to appeal Baraitser's ruling on all five grounds including challenging the evidence on Assange's mental health and suicide risk. The main appeals hearing was held on 27th and 28th October 2021 before Chief Justice Ian Duncan Burnett, the most senior judge in England and Wales and, again, Justice Holroyde ... By and large, the judge asked questions of clarification and, at the end of the second day, concluded the hearing without announcing a date for the rendering of their judgment.'
The High Court on 24th January ruled that there was a point of law to be considered and referred it to the Supreme Court. On 14th March the Supreme Court ruled that there wasn't a point of law to be considered. In summarising where we are now, I can't do better than to quote the account by Craig Murray: (29)
'In saying there is no arguable point of law, the Supreme Court is accepting that diplomatic assurances are not tested and are to be taken at face value – which has been a major point of controversy in recent jurisprudence. It is now settled that we will send someone back to Saudi Arabia if the Saudis give us a piece of paper promising not to chop their head off ...
'So the extradition now goes to Priti Patel, the Home Secretary, to decide whether to extradite. The defence has four weeks to make representations to Patel, which she must hear ...
'Assuming Patel does authorise extradition, the matter returns to the original magistrate’s court and to Judge Baraitser for execution. That is where this process takes a remarkable twist.
'The appeals process that has just concluded was the appeal initiated by the United States government, against Baraitser’s original ruling that the combination of Julian’s health and the conditions he would face in US jails, meant that he could not be extradited. The United States government succeeded in this appeal at the High Court. Julian then tried to appeal against that High Court verdict to the Supreme Court, and was refused permission.
'But Julian himself has not yet appealed to the High Court, and he can do so, once the matter has been sent back to Baraitser by Patel. His appeal will be against those grounds on which Baraitser initially found in favour of the United States. These are principally:
the misuse of the extradition treaty which specifically prohibits political extradition:
the breach of the UNCHR Article 10 right of freedom of speech;
the misuse of the US Espionage Act
the use of tainted, paid evidence from a convicted fraudster who has since publicly admitted his evidence was false [a detail of the story I haven't discussed - PB]
the lack of foundation to the hacking charge
'None of these points have yet been considered by the High Court. It seems a remarkably strange procedure that having been through the appeals process once, the whole thing starts again after Priti Patel has made her decision, but that is the crazy game of snake and ladders the law puts us through. It is fine for the political establishment, of course, because it enables them to keep Julian locked up under maximum security in Belmarsh ...
'On the brighter side, it means that finally, in a senior court, the arguments that will really matter will be heard. I have always felt ambivalent about arguments based on Julian’s health, when there is so much more at stake, and I have never personally reported the health issues out of respect for his privacy. But now the High Court will have to consider whether it really wishes to extradite a journalist for publishing evidence of systematic war crimes by the state requesting his extradition.
'Now that will be worth reporting.'
(29) Craig Murray: Assange extradition: on to the next hurdle, 15th March, 2022, https://www.craigmurray.org.uk/archives/2022/03/assange-extradition-on-to-the-next-hurdle/