Julian Assange’s Day in Court

Julian Assange’s lawyers — in a final bid on Tuesday to stop his extradition — fought valiantly to poke holes in the case of the prosecution to obtain an appeal.

And Our Flags Are Still There - by Mr. Fish

LONDON — By the afternoon the video link, which would have allowed Julian Assange to follow his final U.K. appeal to prevent his extradition, had been turned off. Julian, his attorneys said, was too ill to attend, too ill even to follow the court proceedings on a link, although it was possible he was no longer interested in sitting through another judicial lynching. The rectangular screen, tucked under the black wrought iron bars that enclosed the upper left hand corner balcony of the courtroom where Julian would have been caged as a defendant, was perhaps a metaphor for the emptiness of this long and convoluted judicial pantomime. 

The arcane procedural rules — the lawyers in their curled blonde wigs and robes, the spectral figure of the two judges looking down on the court from their raised dais in their gray wigs and forked white collars, the burnished walnut paneled walls, the rows of lancet windows, the shelves on either side filled with law books in brown, green, red, crimson, blue and beige leather bindings, the defense lawyers, Edward Fitzgerald KC and Mark Summers KC, addressing the two judges, Dame Victoria Sharp and Justice Johnson, as “your lady” and “my lord” — were all dusty Victorian props employed in a modern Anglo-American show trial. It was a harbinger of a decrepit justice system that, subservient to state and corporate power, is designed to strip us of our rights by judicial fiat.

The physical and psychological disintegration of Julian, seven years trapped in the Ecuadorian Embassy in London and nearly five years held on remand in the high-security HM Prison Belmarsh, was always the point, what Nils Melzer the former U.N. Special Rapporteur on torture calls his “slow-motion execution.”  Political leaders, and their echo chambers in the media, fall all over themselves to denounce the treatment of Alexei Navalny but say little when we do the same to Julian. The legal farce grinds forward like the interminable case of Jarndyce and Jarndyce in Charles Dickens’ novel Bleak House. It will probably grind on for a few more months — one can’t expect the Biden administration to add the extradition of Julian to all its other political woes. It may take months to issue a ruling, or grant one or two appeal requests, as Julian continues to waste away in HM Prison Belmarsh. 

Julian’s nearly 15-year legal battle began in 2010 when WikiLeaks published classified military files from the wars in Iraq and Afghanistan — including footage showing a U.S. helicopter gunning down civilians, including two Reuters journalists in Baghdad. He took refuge in London's Ecuadorian embassy, before being arrested by the Metropolitan Police in 2019 who were permitted by the Ecuadorian embassy to enter and seize him. He has been held for nearly five years in HM Prison Belmarsh.

Julian did not commit a crime. He is not a spy. He did not purloin classified documents. He did what we all do, although he did it in a far more important way. He published voluminous material, leaked to him by Chelsea Manning, which exposed U.S. war crimes, lies, corruption, torture and assassinations. He ripped back the veil to expose the murderous machinery of the U.S. empire.

The two-day hearing is Julian’s last chance to appeal the extradition decision made in 2022 by the then British home secretary, Priti Patel. On Wednesday the prosecution will make its arguments. If he is denied an appeal he can request the European Court of Human Rights (ECtHR) for a stay of execution under Rule 39, which is given in “exceptional circumstances” and “only where there is an imminent risk of irreparable harm.” But the British court may order Julian’s immediate extradition prior to a Rule 39 instruction or may decide to ignore a request from the ECtHR to allow Julian to have his case heard by the court.

District Judge Vanessa Baraitser in January 2021, at Westminster Magistrates’ Court, refused to authorize the extradition request. In her 132-page ruling, she found that there was a “substantial risk” Julian would commit suicide due to the severity of the conditions he would endure in the U.S. prison system. At the same time, she accepted all the charges leveled by the U.S. against Julian as being filed in good faith. She rejected the arguments that his case was politically motivated, that he would not get a fair trial in the U.S. and that his prosecution is an assault on the freedom of the press.

Baraitser’s decision was overturned after the U.S. government appealed to the High Court in London. Although the High Court accepted Baraitser’s conclusions about Julian’s “substantial risk” of suicide if he was subjected to certain conditions within a U.S. prison, it also accepted four assurances in U.S. Diplomatic Note no. 74, given to the court in February 2021, which promised Julian would be treated well. The “assurances” state that Julian will not be subject to Special Administrative Measure. They promise that Julian, an Australian citizen, can serve his sentence in Australia if the Australian government requests his extradition. They promise he will receive adequate clinical and psychological care. They promise that, pre-trial and post-trial, Julian will not be held in the Administrative Maximum Facility in Florence, Colorado.

The defense must convince the two judges that the District Judge made serious legal errors to see an appeal granted.  

They argued that espionage is, as a matter of law, a political offense and that the extradition treaty with the U.S. prohibits extradition for political offenses. They focused on the extensive UK law, common law and international law that defines espionage as a “pure political offense” because it is directed against a state apparatus. For this reason, those charged with espionage should be protected from extradition. The lawyers spent a long time adjudicating the case of Chelsea Manning to justify her leak of documents that exposed war crimes as in the public interest, then arguing that if she was justified in leaking the documents Julian was justified in publishing them.

As the day wore on it became evident that the two judges were not well versed in the case, constantly asking for citations and expressing surprise that senior officials in the U.S., such as Mike Pompeo when he was head of the CIA, said Julian would not be protected by the First Amendment in an American court because he was not a citizen. Julian’s lawyers brought up past espionage cases, such as that of MI5 agent David Shayler, prosecuted under the Official Secrets Act 1989 for passing secret documents to The Mail on Sunday in 1997 — which included the names of agents. He also disclosed that MI5 (Britain’s domestic intelligence service) kept files on prominent politicians, including Labour ministers, and that MI6 (Britain’s foreign intelligence service) was involved in a plot to assassinate Libyan leader Colonel Momar Gaddafi. The British extradition request was rejected by the French Cour d’Appel because it was a “political offense.”  

All 18 counts filed against Julian allege that his purpose was “that such information so obtained could be used to the injury of the United States and the advantage of any foreign nation.”

The hearing was, after those in 2020 that focused on Julian’s mental and psychological health, refreshing in that it discussed the crimes committed by the U.S. and the importance of making them public. The two judges rarely interrupted, unlike other court proceedings for Julian I have attended where the judge often condescendingly cut short the defense. This may be a reflection of the broad public support, including by major media organizations, which have belatedly rallied behind Julian. Hundreds of people thronged the entrance to The Royal Courts of Justice, an expansive Victorian Gothic stone building adorned with statues of Jesus, Moses, Solomon and Alfred the Great, the celebrated pillars of the English legal tradition, to call for Julian’s freedom.

The afternoon session was different. On about a half dozen occasions the judges halted the defense to ask about how the leaks, because they were not thoroughly redacted, had endangered lives, although the U.S. has never been able to provide evidence of anyone whose life was lost as a result of the leaks. This canard has long been the cross on which U.S. officials have sought to crucify Julian. The two judges — one wonders if they had been given instructions during the lunch break — hurled these accusations at the defense lawyers until we adjourned.

“These indiscriminate disclosures were condemned by The Guardian and The New York Times,” Judge Sharp admonished the defense team. “They could have been done differently.”

This reference was especially egregious since the unredacted documents were first made public not by WikiLeaks or Julian but by the website Cryptome after reporters from The Guardian printed the password to the unredacted documents in their book.

The U.S. is officially seeking Julian’s extradition, where he potentially faces up to 175 years in prison, for the 2010 publication of the Iraq and Afghanistan war logs and US diplomatic cables. But the U.S. did not request his extradition until the release in March 2017 of the files known as Vault 7 which detailed how the CIA could hack Apple and Android smartphones and turn internet-connected televisions — even when they were off — into listening devices. Joshua Schulte, a former CIA employee, was found guilty last year of four counts each of espionage and computer hacking and one count of lying to FBI agents after handing over classified materials to WikiLeaks. He was given a forty-year sentence in February.

After the release of Vault 7 then CIA Director Mike Pompeo called WikiLeaks “a non-state hostile intelligence service.” The Attorney General at the time, Jeff Sessions, said that Julian’s arrest was a priority. By August the U.S. Senate had passed a 78-page intelligence finance bill which included a sentence declaring that “it is the sense of Congress that Wikileaks and the senior leadership of Wikileaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.” In May 2019 the Trump administration accused Julian of violating the Espionage Act and asked the UK to extradite him to stand trial in the U.S. Trump has called the allegations against Julian treason and called for “the death penalty or something.” Other politicians, including former Republican presidential candidate Mike Huckabee, have also called for Julian to be executed.

If Julian is extradited and additionally charged for the release of the Vault 7 documents, Fitzgerald told the court, “it could result in additional charges that merit the death penalty for aiding and abetting the enemy.” The U.S., he said, especially if Trump is elected again to the presidency, could easily “reformulate these charges into a capital offense.”

Summers brought up President Donald Trump’s request for “detailed options” of how to assassinate Julian when he was in the Ecuadorian Embassy. “Sketches were even drawn up,” he said, adding that the plot fell apart when the UK authorities backed down, especially over a potential shootout, in the streets of London”.

“The evidence showed that the US was prepared to go to any lengths, including misusing its own criminal justice system, to sustain impunity for US officials in respect of the torture/war crimes committed in its infamous ‘war on terror’, and to suppress those actors and courts willing and prepared to try to bring those crimes to account,” he said.

 The lawyers were right. The CIA is the driving force behind the extradition. The leak was highly embarrassing and to the CIA highly damaging. The CIA intends to make Julian pay. Schulte, who leaked Vault 7, was given a forty year sentence. Julian, if extradited, will be next.