26 February 2020 — Defend Wikileaks
Defense: Julian Assange cannot be extradited for a political offense
Assange on lack of access: “I am as much a participant in these proceedings as I am watching Wimbledon”
In day three of Julian Assange’s extradition hearing in London, the defense argued that the WikiLeaks publisher must not be sent to the United States because the US-UK Extradition Treaty precludes extradition for a “political offense.”
Article 4 of the 2003 treaty, which was ratified in 2007, says, “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”
But the US government claimed that the judge must rely on domestic UK law, rather than the international Treaty. Even if the offenses Assange is accused of in the extradition request are political, the prosecution said, “he is not entitled to derive any rights from the [US-UK Extradition] Treaty” because it has not been incorporated into domestic law.
The same year the Extradition Treaty was written, the UK Parliament passed the Extradition Act 2003, a UK domestic law that does not feature a bar to extradition for political offenses. But in 2007, the US-UK Extradition treaty was ratified in the United States, without removing the political offense exemption. “Both governments must therefore have regarded Article 4 as a protection for the liberty of the individual,” the defense argues, “whose necessity continues (at least in relations as between the USA and the UK).”
The US government claims that for the Treaty to take precedence over the domestic Act would deny Parliamentary sovereignty. “There’s no such thing as a political offense in ordinary English law,” the prosecution said, “it only arises in context of extradition.”
The defense fundamentally disagrees. “True the 2003 Extradition Act itself provides no ‘political offence’ bar,” the defense says, “but authority establishes that it is the duty of the Court, not the executive, to ensure the legality of extradition under the terms of the Treaty. “
Defense lawyer Edward Fitzgerald QC says that the judge must take the political exemption into account, as extradition treaties for more than a century consistently feature such provisions. He also argued that the judge must consider Article 5 of the European Convention on Human Rights and principles in the Magna Carta to resolve that the use of a political offense in this extradition request constitutes an abuse of process.
The case against Assange has always been political
If the judge does rule by the US-UK Extradition Treaty, espionage offenses are clearly political. “Political offenses” can be either “purely political”, meaning political on their face, or “relatively political.” Espionage, the defense argues, is a paradigmatic “pure political offense,” as it alleges a crime against the state. Case law on how a court decides what constitutes a pure political offense explicitly considers “treason, sedition and espionage” part of that category.
The 18th charge, of conspiracy to commit computer intrusion, falls in this category as well. The charge comes under the Computer Fraud and Abuse Act, whose language makes clear that it should be tried as an espionage offense.
Beyond the use of espionage charges, the case against Assange has been political from the start. US government officials, members of the media, and US politicians have described Assange and WikiLeaks as “hostile” or even “treasonous” — even though, as the defense noted, Assange isn’t a US citizen.
The US will finish its argument on domestic law taking precedence over international treaties tomorrow morning.
Assange can’t participate in his own defense
At the outset of today’s proceedings, the defense noted to the court that Assange’s medication and other factors make it difficult for him to concentrate, and Judge Vanessa Baraitser said she would check in with him if thinks he’s struggling.
This afternoon, noticing that Assange, who views the proceedings from the back of the courtroom in the defendant dock behind slotted glass, appeared tired or otherwise struggling to participate, the judge asked him if he could hear the proceedings.
“I am as much a participant in these proceedings as I am watching Wimbledon,” Assange said, standing to speak from the dock. He continued,
“I cannot meaningfully communicate with my lawyers. There are unnamed embassy officials in this court room. I can not communicate with my lawyers or ask them for clarifications without the other side seeing. There has been enough spying on my lawyers already. The other side has about 100 times more contact with their lawyers per day. What is the point of asking if I can concentrate if I cannot participate?”
Unhappy with Assange speaking to the court, the judge said it was unusual for defendants to have a voice if they’re not going to testify. The court then briefly recessed as she allowed Assange to leave the dock into a back room to meet with his lawyers privately, but it appeared they were accompanied by security officers.
When the court returned to session, Fitzgerald asked the judge if Julian could be let out of the dock in the back of the court to come to the defense bench in the center of the court, where he would be able to have legally privileged conversations with his defense team.
The judge asked if this constituted a bail application, and then discussed the matter with the prosecution, who said it would oppose a bail application but thought it reasonable to allow Assange to sit with the defense. The judge asked if doing so would mean Assange would technically be out of the court’s custody; the prosecution said it didn’t believe so, as having security officials on either side of him could ensure he remained in custody. The judge didn’t agree, and the defense will have to make a submission tomorrow morning regarding Assange’s ability to participate in the proceedings.