Assange: British Judge Rejects US Government’s Extradition Request
January 4, 2021 3:31 AM Subscribe
This post was deleted for the following reason: Poster's Request -- goodnewsfortheinsane
Curiously, the Grauniad's version includes no reason at all for the judge's decision.
posted by chavenet at 3:41 AM on January 4, 2021
posted by chavenet at 3:41 AM on January 4, 2021
2021/01/04/assange-decision-judge-approves-us-extradition-request/
Well, that's a fun URL for that story.
posted by Avelwood at 5:03 AM on January 4, 2021 [16 favorites]
Well, that's a fun URL for that story.
posted by Avelwood at 5:03 AM on January 4, 2021 [16 favorites]
Will he get his pardon and Medal of Freedom anyway?
posted by RobotVoodooPower at 5:25 AM on January 4, 2021 [1 favorite]
posted by RobotVoodooPower at 5:25 AM on January 4, 2021 [1 favorite]
Perhaps the USG should have agreed to merely punch him in the dick monthly while allowing him to live out the rest of his life in a medium security prison. What a fuck shit stack.
And yes, if his fate was likely to be isolation in a supermax, even jackass julian deserves better and the judge is right, but still deserves being punched in the dick because people shouldn't be able to evade justice by holing up in an embassy for years and use the resultant mental breakdown to continue evading justice.
posted by wierdo at 5:34 AM on January 4, 2021 [8 favorites]
And yes, if his fate was likely to be isolation in a supermax, even jackass julian deserves better and the judge is right, but still deserves being punched in the dick because people shouldn't be able to evade justice by holing up in an embassy for years and use the resultant mental breakdown to continue evading justice.
posted by wierdo at 5:34 AM on January 4, 2021 [8 favorites]
Once he has served his time in the UK, the standard procedure would be for him to be deported to his country of citizenship, i.e., Australia.
Australia, meanwhile, is a reliable deputy to the US, and has a tradition of tough national-security laws, so chances are, he won't even make it to immigration. There'll be a FBI-chartered light plane idling on the runway, and they'll pick him off the arriving flight before anyone disembarks.
Assange's best bet may be to make a run to a place with no extradition treaty to the US. If he is, as the case suggests, a GRU asset, the obvious choice would be Russia. There he can earn his keep as a propaganda asset, rallying the alt-right, the Qarens and the anti-Washington hard-left to keep the shit flying.
posted by acb at 5:43 AM on January 4, 2021
Australia, meanwhile, is a reliable deputy to the US, and has a tradition of tough national-security laws, so chances are, he won't even make it to immigration. There'll be a FBI-chartered light plane idling on the runway, and they'll pick him off the arriving flight before anyone disembarks.
Assange's best bet may be to make a run to a place with no extradition treaty to the US. If he is, as the case suggests, a GRU asset, the obvious choice would be Russia. There he can earn his keep as a propaganda asset, rallying the alt-right, the Qarens and the anti-Washington hard-left to keep the shit flying.
posted by acb at 5:43 AM on January 4, 2021
Out of all the reasons for Baraitser to refuse the extradition request though...
It's the only one that was likely to succeed though based on UK law on extradition. Unfortunately I think that if the US were to guarantee that he would not be subject to certain conditions, they may nonetheless be able to proceed with an extradition.
Let's consider the grounds raised to prevent the extradition:
a. That the UK-US Extradition Treaty prohibits extradition for a political offence and this
court therefore lacks jurisdiction to hear this case;
This fails and probably has to because of the way in which treaties are incorporated into UK law - they're not. Parliament has to pass laws specifically to implement the obligations entered into under international treaties. This is notably different in the US where treaties, correctly ratified, gain the status of domestic law can therefore confer rights. (This is called a monist vs a dualist system). Since UK domestic law on extradition does not allow courts to decide on this matter, there is nothing a court can do here, it is ultimately for the relevant secretary of state to make a decision on whether something is a political offence. In fact, the 2003 Extradition Act specifically removed a provision in previous extradition laws which it superseded by removing a judicial test on whether the alleged offence had a political character.
b. That the allegations do not meet the “dual criminality” requirements of section 137 of
the EA 2003;
The court rejected this and again probably had no choice since very similar offences do in fact exist in relevant UK law.
The strongest argument here was that what Assange did was fundamentally not illegal under UK law (and in fact, protected under US law as well) since it was no more than what a normal investigative journalist would do. The case the US made was that first, he exceeded substantially what an investigative journalist would ordinarily consider allowable conduct, second there were ample precedents under UK domestic law for prosecution and numerous other cases outside the UK where ECHR article 10 was found not to prevent a prosecution for similar conduct. My reading is that what caused this to fail was not necessarily the whole hash table farrago, nor the advice given to Ms Manning on covering her tracks which might be within a grey area of investigative journalism (and to be honest, it is actually not uncommon for investigative journalists to engage in outright law breaking in order to get a story) but the disclosure of the names of many informants. This fell so far outside of normal standards of journalistic conduct that it made it very difficult to claim the protections usually afforded journalists - and note that these are pretty discretionary anyway, there are not really special journalistic privileges in UK domestic law.
Defences of necessity and public interest are matters for trial courts and not for extradition requests which are not intended to take the place of a trial court.
c. That extradition would be unjust and oppressive by reason of the lapse of time, pursuant
to section 82 EA 2003;
Essentially fails for two reasons: First, the delay isn't that long for a complex case, not so long that it would be difficult to mount a defence. Second, time bars do not apply if the defendant had a role in the running of the time.
d. That extradition is barred by reason of extraneous considerations, pursuant to section
81(a) and (b) of the EA 2003;
The argument here is that the prosecution is being undertaken for an impermissible reason, that the Obama administration had made a decision not to prosecute and this was changed by Trump/Sessions in order to persecute Mr Assange for his political views. This failed because there was no evidence that the Obama administration made such a decision, no evidence that Trump was in fact hostile to Assange/WikiLeaks, and no evidence of political interference in the prosecution, and that the evidence supported the US' position that the investigation was ongoing throughout that period.
This seems logical. After all, Trump has mostly had praise for Wikileaks (and some people even think he might pardon Assange on his way out) and this provision of the EA is intended to prevent extraditions on very clearly politically motivated charges - n.b. not the same as the underlying offence having a political character.
e. That extradition is in breach of the European Convention on Human Rights (“the
ECHR”) and should be refused, pursuant to section 87 of the EA 2003:
i. Article 3 (inhuman and degrading treatment);
ii. Article 6 (denial of a right to a fair trial);
iii. Article 7 (it would involve a novel and unforeseeable extension of the law);
iv. Article 10 (right to freedom of expression);
Article 3 - see f below - this is the ground that succeeded
Article 6 challenge fails for all kinds of reasons. The UK routinely extradites to countries with imperfect legal systems, itself has a system that is not free of flaws. This again runs into a conflict with what Parliament has decided, which is clearly that it wished to allow extradition to the US in principle.
Article 7 is a high bar to clear, although it might have succeeded on the publishing charges. In any case, there are procedural guarantees in the US court system against the issues raised.
Article 10 fails because it has not prevented similar prosecutions in the UK or other ECHR countries.
f. That extradition should be refused because it would be unjust and oppressive by reason
of Mr. Assange’s mental condition and the high risk of suicide pursuant to section 91
of the EA 2003;
The judge rubbished the expert witness appearing for the US and found the evidence of autism spectrum traits and depression from the defence witnesses compelling and agreed that he would be at a substantial risk of suicide.
Found that "Special Administrative Measures" which might be used during his pre-trial confinement might very well put him at an even greater risk of suicide.
Therefore it would be oppressive to allow the extradition to proceed (and the article 3 consideration becomes unnecessary)
g. That extradition would be an abuse of process:
i. The request misrepresents the facts [Castillo v Spain [2005] 1 WLR 1043, Spain
v Murua [2010] EWHC 2609 (Admin), and Zakrzewski v Regional Court in
Lodz, Poland [2013] 1 WLR 324];
ii. The prosecution is being pursued for ulterior political motives and not in good
faith [R (Bermingham and Others) v Director of the Serious Fraud Office [2007]
QB 727 and R (Government of the USA) v Bow Street Magistrates' Court [2007]
1 WLR 1157 (“Tollman”)].
This was only treated lightly (as it is a residual jurisdiction only exercised if no other bars to extradition exist) but these are essentially considered matters for the trial court to consider as the defence submissions are alternative narratives.
posted by atrazine at 5:48 AM on January 4, 2021 [27 favorites]
It's the only one that was likely to succeed though based on UK law on extradition. Unfortunately I think that if the US were to guarantee that he would not be subject to certain conditions, they may nonetheless be able to proceed with an extradition.
Let's consider the grounds raised to prevent the extradition:
a. That the UK-US Extradition Treaty prohibits extradition for a political offence and this
court therefore lacks jurisdiction to hear this case;
This fails and probably has to because of the way in which treaties are incorporated into UK law - they're not. Parliament has to pass laws specifically to implement the obligations entered into under international treaties. This is notably different in the US where treaties, correctly ratified, gain the status of domestic law can therefore confer rights. (This is called a monist vs a dualist system). Since UK domestic law on extradition does not allow courts to decide on this matter, there is nothing a court can do here, it is ultimately for the relevant secretary of state to make a decision on whether something is a political offence. In fact, the 2003 Extradition Act specifically removed a provision in previous extradition laws which it superseded by removing a judicial test on whether the alleged offence had a political character.
b. That the allegations do not meet the “dual criminality” requirements of section 137 of
the EA 2003;
The court rejected this and again probably had no choice since very similar offences do in fact exist in relevant UK law.
The strongest argument here was that what Assange did was fundamentally not illegal under UK law (and in fact, protected under US law as well) since it was no more than what a normal investigative journalist would do. The case the US made was that first, he exceeded substantially what an investigative journalist would ordinarily consider allowable conduct, second there were ample precedents under UK domestic law for prosecution and numerous other cases outside the UK where ECHR article 10 was found not to prevent a prosecution for similar conduct. My reading is that what caused this to fail was not necessarily the whole hash table farrago, nor the advice given to Ms Manning on covering her tracks which might be within a grey area of investigative journalism (and to be honest, it is actually not uncommon for investigative journalists to engage in outright law breaking in order to get a story) but the disclosure of the names of many informants. This fell so far outside of normal standards of journalistic conduct that it made it very difficult to claim the protections usually afforded journalists - and note that these are pretty discretionary anyway, there are not really special journalistic privileges in UK domestic law.
Defences of necessity and public interest are matters for trial courts and not for extradition requests which are not intended to take the place of a trial court.
c. That extradition would be unjust and oppressive by reason of the lapse of time, pursuant
to section 82 EA 2003;
Essentially fails for two reasons: First, the delay isn't that long for a complex case, not so long that it would be difficult to mount a defence. Second, time bars do not apply if the defendant had a role in the running of the time.
d. That extradition is barred by reason of extraneous considerations, pursuant to section
81(a) and (b) of the EA 2003;
The argument here is that the prosecution is being undertaken for an impermissible reason, that the Obama administration had made a decision not to prosecute and this was changed by Trump/Sessions in order to persecute Mr Assange for his political views. This failed because there was no evidence that the Obama administration made such a decision, no evidence that Trump was in fact hostile to Assange/WikiLeaks, and no evidence of political interference in the prosecution, and that the evidence supported the US' position that the investigation was ongoing throughout that period.
This seems logical. After all, Trump has mostly had praise for Wikileaks (and some people even think he might pardon Assange on his way out) and this provision of the EA is intended to prevent extraditions on very clearly politically motivated charges - n.b. not the same as the underlying offence having a political character.
e. That extradition is in breach of the European Convention on Human Rights (“the
ECHR”) and should be refused, pursuant to section 87 of the EA 2003:
i. Article 3 (inhuman and degrading treatment);
ii. Article 6 (denial of a right to a fair trial);
iii. Article 7 (it would involve a novel and unforeseeable extension of the law);
iv. Article 10 (right to freedom of expression);
Article 3 - see f below - this is the ground that succeeded
Article 6 challenge fails for all kinds of reasons. The UK routinely extradites to countries with imperfect legal systems, itself has a system that is not free of flaws. This again runs into a conflict with what Parliament has decided, which is clearly that it wished to allow extradition to the US in principle.
Article 7 is a high bar to clear, although it might have succeeded on the publishing charges. In any case, there are procedural guarantees in the US court system against the issues raised.
Article 10 fails because it has not prevented similar prosecutions in the UK or other ECHR countries.
f. That extradition should be refused because it would be unjust and oppressive by reason
of Mr. Assange’s mental condition and the high risk of suicide pursuant to section 91
of the EA 2003;
The judge rubbished the expert witness appearing for the US and found the evidence of autism spectrum traits and depression from the defence witnesses compelling and agreed that he would be at a substantial risk of suicide.
Found that "Special Administrative Measures" which might be used during his pre-trial confinement might very well put him at an even greater risk of suicide.
Therefore it would be oppressive to allow the extradition to proceed (and the article 3 consideration becomes unnecessary)
g. That extradition would be an abuse of process:
i. The request misrepresents the facts [Castillo v Spain [2005] 1 WLR 1043, Spain
v Murua [2010] EWHC 2609 (Admin), and Zakrzewski v Regional Court in
Lodz, Poland [2013] 1 WLR 324];
ii. The prosecution is being pursued for ulterior political motives and not in good
faith [R (Bermingham and Others) v Director of the Serious Fraud Office [2007]
QB 727 and R (Government of the USA) v Bow Street Magistrates' Court [2007]
1 WLR 1157 (“Tollman”)].
This was only treated lightly (as it is a residual jurisdiction only exercised if no other bars to extradition exist) but these are essentially considered matters for the trial court to consider as the defence submissions are alternative narratives.
posted by atrazine at 5:48 AM on January 4, 2021 [27 favorites]
disclosure of the names of many informants.
Whether or not you buy wikileaks justification for publishing the unredacted cables on their website how they came to be disclosed prior to that is at worse due to incompetence (and most of that incompetence not being on wikileaks side).
posted by Beware of the leopard at 9:30 AM on January 4, 2021 [2 favorites]
Whether or not you buy wikileaks justification for publishing the unredacted cables on their website how they came to be disclosed prior to that is at worse due to incompetence (and most of that incompetence not being on wikileaks side).
posted by Beware of the leopard at 9:30 AM on January 4, 2021 [2 favorites]
I personally don't agree with the argument that activists should submit to further oppression in order to validate their activism. But it's not something I've examined; so, maybe MLK or other activist intellectuals had something to say about this in a way that doesn't simplistically repeat jingoistic propaganda e.g. uncritically framing it as "evading justice".
posted by polymodus at 3:12 PM on January 4, 2021
posted by polymodus at 3:12 PM on January 4, 2021
I agree that people shouldn't be arbitrarily detained in violation of their human rights.
Fleeing from justice is a self-imposed violation of one's human rights. There was nothing stopping him from walking out the front door the entire time he was holed up in the embassy except his unwillingness to face justice for the crime he was charged with at the time, which had nothing at all to do with the US.
There is zero reason to believe he wouldn't have gotten a fair trial in Sweden (assuming it even got that far) and even less reason to believe that the outcome of an extradition hearing there would have turned out any differently than the one he just had.
posted by wierdo at 3:31 PM on January 4, 2021 [9 favorites]
Fleeing from justice is a self-imposed violation of one's human rights. There was nothing stopping him from walking out the front door the entire time he was holed up in the embassy except his unwillingness to face justice for the crime he was charged with at the time, which had nothing at all to do with the US.
There is zero reason to believe he wouldn't have gotten a fair trial in Sweden (assuming it even got that far) and even less reason to believe that the outcome of an extradition hearing there would have turned out any differently than the one he just had.
posted by wierdo at 3:31 PM on January 4, 2021 [9 favorites]
To this day, I still find the claims that extradition was not a risk puzzling. Sweden had already extradited two Egyptians to CIA custody in late 2001, in violation of UNHRC torture bans, and it explicitly offered no guarantees it wouldn't have done the same with Assange.
In light of those facts, it seems unsurprising that he had no expectation of a fair trial in Sweden, much less that such proceedings would not be cover for shipping him off to the United States, and might not wish to put himself at risk of torture or brutal murder at the hands of those who had just recently been caught on camera doing the same to innocent civilians, without suffering any real consequences.
posted by They sucked his brains out! at 3:57 PM on January 4, 2021 [8 favorites]
In light of those facts, it seems unsurprising that he had no expectation of a fair trial in Sweden, much less that such proceedings would not be cover for shipping him off to the United States, and might not wish to put himself at risk of torture or brutal murder at the hands of those who had just recently been caught on camera doing the same to innocent civilians, without suffering any real consequences.
posted by They sucked his brains out! at 3:57 PM on January 4, 2021 [8 favorites]
and even less reason to believe that the outcome of an extradition hearing there would have turned out any differently than the one he just had
This is absolutely false, according to the government of Sweden.
posted by Pyrogenesis at 5:16 PM on January 4, 2021 [1 favorite]
This is absolutely false, according to the government of Sweden.
posted by Pyrogenesis at 5:16 PM on January 4, 2021 [1 favorite]
This is probably a good thing, given that if he'd been deported to the US on Trump's watch, he would almost certainly have been pardoned.
posted by senor biggles at 8:09 PM on January 4, 2021 [1 favorite]
posted by senor biggles at 8:09 PM on January 4, 2021 [1 favorite]
Finally the poodle has grown one. I have real fears the US would arrange his death.
posted by unearthed at 8:16 PM on January 4, 2021 [1 favorite]
posted by unearthed at 8:16 PM on January 4, 2021 [1 favorite]
I might agree with the UN working group's opinion if it didn't leave out salient facts. It is true that he was never formally charged in Sweden, but that was apparently, according to prosecutors and backed up by third parties, a quirk of Swedish law that didn't allow for formal charges to be brought until he was back in Sweden.
He then jumped bail, which is itself a crime in the UK among many other nations. Not a political crime, just the run of the mill kind. The kind that quite reasonably keeps you from being released pending prosecution. After having fled twice, it's hard to call it unreasonable that he was held in custody pending resolution of the extradition request.
posted by wierdo at 11:49 PM on January 4, 2021
He then jumped bail, which is itself a crime in the UK among many other nations. Not a political crime, just the run of the mill kind. The kind that quite reasonably keeps you from being released pending prosecution. After having fled twice, it's hard to call it unreasonable that he was held in custody pending resolution of the extradition request.
posted by wierdo at 11:49 PM on January 4, 2021
You would have to be almost literally insane to believe that someone who went to such elaborate and public lengths to jump bail previously would be granted bail. Whether or not you believe that he should be prosecuted by the US, extradited by the UK, or is a good guy (which... let's just say those are three quite different questions) bail decisions are made based on whether someone is likely to attend their trial if bailed (primarily).
Who with a straight face could say that here?
posted by atrazine at 10:26 AM on January 6, 2021 [1 favorite]
Who with a straight face could say that here?
posted by atrazine at 10:26 AM on January 6, 2021 [1 favorite]
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