Often in the last seven years of the standoff between Julian Assange and the Swedish Prosecution Authority ((SPA) clients of the Crown Prosecution Service) there has been talk about irregularities in the way the case has been handled, questions around the exact nature of the relationship between the UK and Swedish prosecutors, and how their conduct has impacted upon the life of Julian Assange during this time.
Independent journalist, Stefania Maurizi’s, pursuit of the truth of the Assange case, already successful in highlighting important facts in SPA document releases, brought her to London this week, in the latest stage of her Freedom of Information Act fight with the UK CPS. We explain Stefania’s taking the UK government to court to challenge the public’s right to know what went wrong with the Julian Assange case in a previous post here. Documents pertaining to his case have been withheld by CPS despite years of FOIA efforts by Ms Maurizi, though, miraculously, some information was released last week, just a few days before the start of the long-scheduled London hearing.
On November 13th and 14th 2017 the UK Freedom of Information Tribunal was held in the functional surroundings of Fleetbank House, off Fleet Street, in London. With additional attention on the case courtesy of the CPS’s seemingly pre-emptive release of material a few working days previously, and the Guardian’s reporting of mass email deletion discovered in those documents, the small court room was well attended by activists and supporters of Ms Maurizi and Julian Assange. Straight from the outset the tone of the encounter was set, with CPS’s counsel Rory Dunlop appealing to Judge Andrew Bartlett QC that the name of the CPS’s main protagonist in the extradition case – and author of the deleted emails – Paul Close, be withheld from public reporting of the case. After brief deliberation judge Bartlett (with colleagues Henry Fitzhugh and David Wilkinson) agreed to this order on a temporary basis; a decision he would reverse at conclusion of the 2 days of hearings. The CPS, with Information Commissioner’s Office counsel Robin Hopkins riding shotgun, and a posse of up to 7 advisers in support, were clearly intent on locking down their past actions and protecting current and former staff. Not too much freedom of information present at this point.
By contrast, Estelle Dehon, representing Maurizi, opened her case with an explanation of the underpinnings of her client’s case: the need for a free press and the right to know the actions of our governments and their agencies. Taking the stand, Stefania continued with her raison d’etre, drawing on her attraction to the work of WikiLeaks and the vital role it plays in holding the powerful to account, she stressed her surprise that certain themes in the Assange case – the role of the US, as an example – had absolutely no mention in the documents she had secured thus far. Particular areas of enquiry for Maurizi’s journalism included i) the circumstances and nature of the deletion of Paul Close’s emails with the SPA ii) the rationale for and details behind Close’s documented advice to the Swedes around 6 years ago not to interview Assange in London iii) the exact amount of information being held on Assange by the CPS.
What emerged even at this early stage was the sense of a tribunal operating on different levels. A digging into the minutiae of institutional data management policies and protocols to expose day-to-day inconsistency and deviation from norms thinly-veiling a proxy war over the fate of Julian Assange. Consistently in this tribunal, as Dehon would draw points of discussion back to the CPS’s management of its Assange case documentation and the omissions in the FOIA material presented to date, so Dunlop would expand into wider discussions around his client’s role and responsibilities, with an irritation directed at Assange never far below the surface. Indeed, loaded comments about Assange “benefiting” from his asylum status, the very legitimacy of that asylum, and other such irrelevant yet hugely telling tidbits were routinely offered up for the judges’ consideration by the CPS’s counsel and witness (Mohammad Cheema).
In a meandering defence of the main points of Maurizi’s appeal, Cheema stated that the reason for Close’s directing the SPA not to pursue a London interview with Assange, was that the extradition case was “half-baked” and “not advanced” and interview would serve little purpose. It should be remembered that the purpose of the Swede’s interviewing Assange was in fact to advance their own preliminary investigation of allegations against him – a separate matter – but one which in turn would doubtless advance the extradition case overall should the allegations prove to have substance to them; the explanations offered by the CPS on this, and their later suggestion that the issue is adequately explained in existing Swedish documentation made public by Maurizi, are questionable indeed. The heavy influence of Close, and his evident direction of Marianne Ny in Sweden, was further highlighted by Ms Dehon on a number of other occasions.
The CPS legal team made much of the ‘chilling effect’ in international relations that disclosure under FOIA might produce: witness Cheema essentially suggesting that any disclosure – particular contexts are not especially important to Cheema, it seemed – has the potential to damage relationships with foreign states and the UK’s reciprocal arrangements with them. As The Courage Foundation explains:
“For the CPS, extradition lawyer Mohammad Cheema countered that disclosing the information would endanger the UK’s diplomatic relations and could have a “very significant” chilling effect on extradition procedures with particular, unspecified, countries.”
Similarly, the CPS defended their blanket use of the ‘Neither Confirm Nor Deny’ (NCND) policy in respect in FOIA requests – a theme arising from the absence of any Ecuadorian or US correspondence in the Maurizi material so far, and the implementation of NCND in response to questions of the existence of such documentation. As the CPS sought to highlight these general issues, often deflecting Maurizi’s genuine public interest concerns with out-of-context and hypothetical national security ones – organised criminals and terrorists were mentioned repeatedly – so they seemed to take issue with a specific request to quantify the amount of documentation they actually hold on Assange. In short, they will not or cannot answer this point, choosing at different times to both purposefully complicate the question, deem the request too complex and resource-consuming in practical terms to complete, or judge it as irrelevant. It certainly is not irrelevant, and is of special significance to Stefania’s on-going unpicking of the case.
The Monday afternoon session was marked firstly by an apparent tightening of Cheema’s demeanour as witness – becoming more assertive to disagree with most points put forward by Dehon, whilst simultaneously appearing to attempt to build a relationship with Judge Bartlett – and secondly by the sometimes fawning cooperation given by ICO counsel Hopkins to Dunlop and the CPS. Monday afternoon also saw the first session undertaken in secret, with all public, and all of Maurizi’s legal team, and Maurizi herself, excluded from proceedings while the judges heard from CPS / ICO counsels and witness. A time for supporters to get some coffee and do some supporting! Monday’s proceedings concluded with an essentially coded summary of the private session answers to Dehon’s written questions and an agreement to return in the morning to finalise submissions. The tribunal appeared to be nearing its end at this point.
Supporting Julian Assange and other whistle-blowers does invite unusual experiences and situations, and sitting on the floor of this workaday little courtroom in buttock-numbingly lengthy sessions was definitely one of those. Here are some points and general impressions we made and tried to tweet out on the first day of the tribunal (@WiseUpAction):
- Largely no-attendance of UK press today is a disgrace These bits of the jigsaw are being forced into place by a lone independent journalist @SMaurizi and her legal team. Who humbly says ‘just doing my job’[…] SM’s testimony fabulous.
- Confusing statements from CPS re extradition case statuses. Appeared to use closed status of JA case to explain deletion of emails… Later stated would always be open to offer requesting states advice even when extraditions hadn’t been completed (implication never ‘closed’?)
- Should say, also long, very long, discussions about wide use of ‘Neither Confirm Nor Deny’ by CPS in the case and its appropriateness.
- Whoever at the CPS deleted that email account when #Assange case deemed closed probably a Wild West gunslinger in former life. #AssangeFOI
- Also, CPS witness stated their record keeping / management not of a good enough standard, and not how he would have done it. SM’s team able to show examples of SPA (Ny) seeking & getting guidance on case from he who can’t be named [Paul Close] at CPS. Inferred that level of direction from CPS was over and above usual levels. (i.e. was HWCBN [Paul Close] driving things for Ny?)
A professional’s view came from counsel Estelle Dehon, summarising the case in this excellent interview with Randi Credico @Credico2016 broadcast on the 13th of November at KPFA Radio station of the Pacifica Network, in ‘FlashPoints’ Dennis Bernstein’s show:
You can read the transcript of this interview at the Consortium News website here.
The following day’s hearings featured a re-running of many of the key points, but interestingly also a second private session. Reports from the court indicate a growing drift in the CPS position. Initially defending their own conduct and responses in the FOIA matter, which they deemed sufficient and exhaustive, they appeared to develop a more sustained attack on Assange personally. Neither the CPS’s opinion on Assange’s conduct, his work, or his asylum status, nor their personal antipathy towards him, should have any relevance to a tribunal on the provision of state documents to the public, and there is a sense that CPS counsels overplayed this aspect on the second day.
Here are further live reports from @Survivors3Susan on day 2 of the tribunal collated from her Twitter timeline. As mentioned above, the CPS routine engaged in smearing attacks on Julian Assange, despite this being a tribunal about access to documents brought by an independent journalist:
“@SMaurizi case says Swedish prosecution authorities (SPA) released info that CPS redacted.
CPS lawyers now replying Ny didn’t approve or agree with SPAs earlier “relaxed” disclosures therefore CPS cannot release more documents also, not enough public interest to disclose further information on reason not to interview Assange in UK b/c there’s already enough info in public domain. Rory Dunlop, counsel for the CPS then cites Ny’s letter to Home Office and the SPAs statements on their reasons not to interview in UK @ Swedish court of appeal in Nov. 2014.. Still arguing there is nothing more relevant to disclose to the public re why not interviewing Assange in UK.
Rory for the CPS is quoting UK foreign secretary stating the UK government does not accept the principle of diplomatic asylum by a foreign embassy in the UK
Describing the relationship between SPC and SPA, CPS counsel Rory: “We are in a situation akin to legal professional privilege.” Advice regarding an extradition request given by the CPS to a foreign state MUST remain confidential. Furthermore, public interest in protecting legal professional privilege trumps that of interest in disclosures relating to case. CPS appealing to judge to uphold confidentiality to protect the CPSs ability to do its job with respect to international relations even with non democratic states.
CPS Rory saying: “Person A” who can’t be named, has never had his name mentioned in any public dox associated with #Assange case claiming that only @SMaurizi has named him in her articles… Other journalists have not named him. Quotes: “we should not name a retired civil servant even if his name already in public domain. It would be unfair!” “The CPS is trying to protect one of its retired individuals”.
“All you have is what the CPS & Cheema (CPS witness) has said wd be the effect of departing from the NCND policy. We shd not doubt their evidence.”, “There is not sufficient reason to depart from NCND (neither confirm nor deny) policy.” “Reason there is a NCND policy is so fugitives can’t get topped off” @JulianAssange is hiding in an embassy. It is not absurd to liken him to a fugitive. ” “He ( @JulianAssange ) shouldn’t benefit from evading justice by hiding in an embassy…
There was a laugh from someone in the court at this statement from Rory for the CPS …
Further collated tweets from @Survivors3Susan on day 2 follow. A theme here is the CPS’s sensitivity on the deletion of Paul Close’s emails.
“CPS Rory is now telling the court what a vast amount of work & time is has taken for a busy conscientious CPS to provide info to @SMaurizi it has been. “The CPS has already “done enough”… CPS Rory now discussing the deletion of the emails. “When someone retires there is nothing wrong with closing an inbox.” He’s sounding shakey now… “There’s no reason to suggest it was deliberate…” More chuckles from the court at this point…”A procedure was not followed… There’s no need for a retired official to be named in public…”
CPS Rory drawing threads of his argument together… “The CPS have spent an enormous amount of time to do what FOIA requires of them… To strike the right balance…”
We are now hearing from ICO counsel who says he agrees with the CPS counsel.
Robin Hopkins, Counsel for the ICO, is also agreeing with CPS regarding keeping person As name out of the public domain! ” @SMaurizi can say whatever she likes about the dox she has legally obtained up to this point”… “The ICO agrees with Mr Dunlop”… “I agree with approach by appellant that we need to focus on content of info in deciding public interest balance… “
“The ICO agrees with the ‘chilling effect’ on the relationship between 2 prosecuting authorities with disclosures… ” “We do agree that the CPSs concerns are weighty… “We do say the public interest is valid but we agree with the CPS on the balance & decision on exemption (to disclose the information) . “The SPAs disclosure already explains the reasons Assange was not interviewed in the UK (or words to that effect)….Explanations are already in the public domain…..We agree with how the redactions have been applied…..With regards to the USA the ICO strongly supports the CPS approach of NCND policy (re disclosures)
Regarding the question of exact number of pages in Assange file: the ICO agrees with the CPS assessment ie would deliver nothing more of interest to public.”
Concluding the tribunal, Judge Bartlett unexpectedly reversed the decision to prevent publication of Paul Close’s identity – a great and encouraging start. The decision on the tribunal is expected next month (December 2017).
It was fascinating following the proceedings of Stefania Maurizi’s FOIA Tribunal over the course of two days. Being there was a wonderful way to offer solidarity to WikiLeaks supporting a dedicated journalist ‘just doing her work’, in holding state power accountable strengthening our Democratic system. We learnt a lot, witnessed how difficult, time consuming and adversarial legal proceedings can be in the attempt to bring transparency into the processes of UK’s public administration of justice.
And it was wonderful when the Tribunal closed with a small victory for Stefania Maurizi:
To quote US comedian Jimmy Dore, an increasingly influential and respected commentator on current and international affairs, we are just a few ‘jag-offs’ reporting these important events as best we can – because the corporate media almost without exception will not do so. We say thank you and good luck, Stefania.
We keep going!
Emmy & David
1]. London Tribunal dismisses la Repubblica’s appeal to access the full file of Julian Assange
2]. Recent decisions of the Commissioner and the Tribunal
3]. WikiLeaks recognised as a ‘media organisation’ by UK tribunal