The purpose of the hearing was to secure a ruling on the right of Julian Assange to appeal a government order for his extradition to the United States.
Little doubt exists in the minds of Assange’s supporters that - through Wikileaks - he has performed a courageous and principled service in exposing criminal conduct by the United States and its allies in the Middle East, Asia, Africa and elsewhere. That Wikileaks published classified information obtained from Chelsea Manning - a former US soldier - is not in dispute. For her role in the affair, Ms Manning was court-martialed in 2013, found guilty of violating the Espionage Act (1917) and sentenced to thirty-five years in jail. Seven years later, President Obama commuted her sentence, but she was jailed for another year in 2019 for refusing to testify before a grand jury set up to investigate Assange and Wikileaks.
Prior to the current hearing - the outcome of which will probably be announced in mid to late March - an order to extradite Assange had been approved by a previous British Home Secretary, Priti Patel, against which he has already lost an appeal in a district (lower) court. A victory now would achieve no more than afford him the opportunity to present a full appeal to a higher court. If he loses the hearing he will likely be extradited forthwith to the United States where he could face up to 175 years in jail - effectively a death sentence.
In her opeing remarks, Victoria Sharp, the senior of the two judges presiding over the hearing, stated that Assange was not present in court either physically or online because he was ill. In reality - it is no secret - he is being kept in solitary confinement in a high security prison and allowed out for exercise solely for one hour in every twenty-four. It is a form of slow torture that has affected him physically and may also have temporarily impaired his mental alertness.
Courtrooms in the Royal Courts of Justice have galleries open to the public, and where these are fully occupied, a side room with a screen is sometimes made available. Such was the case for Assange’s hearing which had been allocated one of the smallest courtrooms in the building despite widespread public concern for his fate and the many hundreds waiting in the street outside in the hope of gaining entry.. It was also possible to view the proceedings online. However, to attend in any of these ways involved negotiating obstacles designed to discourage all but the most distinguished or the most obstinate. I was one of the latter - granted online access along with eight others. Among those physically present were the UN Special Rapporteur on Torture, more than a dozen EU parliamentarians, several members of foreign national parliaments, journalists from Reporter Without Borders, and members of the Haldane Society of Socialist Lawyers. Assange’s wife, Stella, was also present.
No matter how serious the issue, English courts operate to a ritual of dress and expressive courtesies derived from an earlier age. Lawyers wear gowns and wigs in court, and barristers (advocates entitled to represent clients in the high court) address presiding judges as “my lady” or “my lord”, while barristers refer to each other as “my learned friend”. This veil of civility ensures that voices are seldom raised. Subtlety of argument supported by knowledge of precedent (previous judgements made on similar cases) and of prevailing statutes and treaties form the substance of what takes place. Submissions by the contending barristers are lengthy and weighted with textual references all of which are gathered in what is known as a”bundle” - the collection of evidential material assembled by opposing legal teams and available to both as well as to the judges
During the hearing, the essence of the extradition case against Assange remained as it has always been. Lead counsel for the United States, Claire Dobbins, argued that he was neither a publisher nor a journalist - activities under which he might seek legitimate legal protection in England. Instead he had engaged in espionage of US state secrets of a kind that would be expected of an enemy agent. Wikileaks was, in fact “a non-state, hostile intelligence agency”. It had released the names of thousands of individuals, thereby endangering their lives, had conspired with Chelsea Manning to securer secret documents, and had hacked into CIA confidential files. She spoke without pause - except to answer an occasional query from the judges, for the best part of two and a half hours.
Under the terms of the UK-US Extradition Treaty of 2003, no one could be extradited for expressing political opinions. Nevertheless, Ms Dobbins told the hearing, this was not an issue of political opinion but of spying. Moreover, as a foreigner, Assange could not enjoy the free-speech protection afforded by the First Amendment to the US Constitution. This last argument was also employed in Assange’s defence on the grounds that he was, in fact, a journalist and publisher and, if extradited, would not receive the protection available to a US citizen.
The submission on behalf of the United States came sandwiched between opening submissions by Edward Fitzgerald and Mark Summers - acting for Assange - and the latters’ closing arguments in reply to the US case. Much of the argument revolved round the question of whether Assange’s activities via Wikileaks involved the expression of political opinion which is protected under both the Extradition Treaty and the European Convention on Human Rights (ECHR) to which the UK is a signatory.
Even if Assange had engaged in spying (which he had not), his team argued that espionage is a purely political offence and recognised as such by all legal authorities. Publication of state secrets obtained from a state official - Chelsea Manning - therefore constitutes protected speech. Soliciting such material - a fundamental element of the US case against Assange - was routine journalistic practice. Prosecution of journalists or publishers under the US Espionage Act had never occurred before, despite a long history of US media publishing classified information. The Wikileaks revelations, moreover, had uncovered serious criminal activity by the US government and its agencies. It was not credible to argue that Julian Assange was neither a journalist nor a publisher and then to complain about his journalistic and publishing activities.
According to Assange’s team, this effectively disposed of seventeen of the eighteen charges against him cited by the United States in its extradition request. The sole remaining charge concerned the attempted hacking of a CIA computer for which the maximum sentence had already been exceeded by Assange’s incarceration in the UK.
Much discussion on both sides centred on the wording and interpretation of Articles 5 and 10 of the ECHR. Article 5 sets out the rights of persons who have been arrested - which the long incarceration of Assange may suggest have already been breached. Article 10 addresses freedom of expression. The first paragraph reads as follows:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
It is possible that this article may prove to be the saviour - for now - not only of Julian Assange’s case - but of his life. Even if he wins this hearing, however, the organisation and scheduling of a subsequent appeal against extradition would certainly take months and probably more than a year. Meanwhile he will remain in solitary confinement in Belmarsh high security prison, bearing on his increasingly fragile shoulders the hopes of many that he will have the strength and health to sustain the ordeal, and that journalism will not effectively be muzzled from carrying out one of its most fundamental responsibilites - that of holding governments to account.
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