#FreeTheTruth, International Solidarity Event
Saturday 2nd May 2020, 13:00 BST
By David M.
From https://www.youtube.com/watch?v=xMwwzcUh_g4 (00:23:30 – 2:03:02)
Deepa Govindarajan Driver (DD): Host
Robert Tibbo (RT)
Mads Andenæs (MA)
Ben Wizner (BW)
DD: welcome everybody. Thank you for joining us at this Free the Truth event in defence of Julian Assange, the Wikileaks publisher.
As many of you know, Julian is still in Belmarsh prison – a maximum security prison – as a journalist awaiting extradition to the United States.
There are a number of aspects of Julian’s case that are very disturbing and worrying. His case sets an important precedent for both free speech and the freedom of journalists, and also for issues such as state collusion in the persecution of an individual, arbitrary detention, torture and human rights.
Our Free the Truth events have tried to showcase the different aspects of Julian’s case. These events started last year in the run-up to Julian’s trial to encourage a public debate about the issues that surfaced around the case.
My name is Deepa Govindarajan Driver. I am a university lecturer and trade unionist working at the University of Reading. Together with my colleague Professor Iain Munro who is at the University of Newcastle and specialises in a number of things including whistleblowing, we are trying to change the narrative and understand the truth about Julian – which is why this series of events is called Free the Truth.
In the past we’ve had some illustrious speakers including Professor Nils Melzer (UN Special Rapporteur on Torture), John Pilger (noted journalist), Lisa Longstaff (Women Against Rape), Eva Jolie, Fidel Narvaez and many others who have come together to make the point that the persecution of Julian Assange is about more than just Julian Assange. It is also about how our civil liberties, our rights and our futures are being undermined by rogue states.
I am very happy to welcome you to this event – happy in the sense that we have such an august panel, but not so happy given the circumstances under which we are convening this event.
I’d like to introduce the three speakers:
• Professor Mads Andenæs, professor at the University of Oslo and honorary QC, and also at the Institute of Advanced Legal Studies. Widely published, he is a former of the UN Working Group on Arbitrary Detention, and a UN Special Rapporteur on Arbitrary Detention. Welcome Mads – thank you for joining us today.
• We also have on the panel Ben Wizner. Ben is at the American Civil Liberties Union (ACLU) where he is the director of the ACLU’s Technology, Speech and Privacy project. He specialises in understanding the intersection between civil liberties and national security. He has looked at things ranging from airport security through to watchlists, surveillance practices, targeted killing and torture. He has litigated in numerous areas that are relevant to today’s discussion.
• Last but not least we have Robert Tibbo who is well known for helping Edward Snowden through Hong Kong. Robert is a litigating barrister working on both administrative law and constitutional law. He has an illustrious background of over 30 years in these areas, and he will talk to us about those nuances of the case.
I’d like to thank (the) Don’t Extradite Assange (Campaign) for hosting and broadcasting this event through their channel, and also Somerset Bean who provides the graphics, Catherine Brown who has done our transcripts, and the Committee to Defend Julian Assange who have helped with organisational aspects of Free the Truth events.
So, without further ado I’d like to hand over to Robert Tibbo for his thoughts on the case.
RT: Deepa has asked me to explain briefly the key aspects of an extradition hearing, and of extradition law with reference to the particulars of Mr Assange’s case, the process that he has gone through up to this point, and what we would expect to see over the next year.
In terms of extradition law, extradition is founded on a treaty that would exist between two countries – both countries agreeing that it is the foundation for both countries seeking the extradition of an alleged fugitive or a fugitive from one jurisdiction to the counterpart’s jurisdiction.
In most countries around the world where there is a treaty between two countries, in each country there will be domestic legislation which provides the legal framework for extradition and provisions on what the process is and how it would operate.
Between the US and UK there is a treaty, and in the UK there is the Extradition Act which was updated in 2003 and which has been amended since then. In Mr Assange’s case, a little over a year ago he was taken into custody forcefully by the British authorities who entered the Ecuadorian embassy. I point out that – and I’ve said this publicly before – that Mr Assange’s due process rights within Ecuador were violated, the Ecuadorian government having allowed that to happen.
At that point the US government under the treaty makes a formal request to the UK government for Mr Assange’s arrest and extradition. My understanding is that a warrant was issued for Mr Assange’s arrest when he was in custody, and once he was arrested he was brought before a committal court or a magistrate’s court before a magistrate to commence extradition proceedings.
This process involves the US government necessarily providing the charges or the indictments against Mr Assange, and these have to be clearly identified and particularised. The US government did that last year, and at that point the extradition process commences with the US government being represented by the UK prosecutors providing disclosure, providing documents and evidence to Mr Assange. So all through last year up until even now there is ongoing disclosure from the US government to Mr Assange’s defence team.
The extradition court’s role – and this needs to be made very clear – is not to judge Mr Assange and whether he is guilty or not guilty. The extradition court’s role is simply to make a decision on whether there is sufficient evidence to proceed to criminal prosecution of Mr Assange. This is typical in any criminal case in any jurisdiction; an application may be made by defence counsel submitting evidence that there is not sufficient evidence to proceed. The interesting part about the extradition judge’s role is that the standard of proof is not at a criminal standard – it’s at a civil standard. That’s a lower standard, so the extradition judge has to decide whether there is a prima facie case whether there is sufficient evidence to proceed. It’s a relatively low standard.
That process is an evidential hearing, and I understand that that evidential hearing hasn’t taken place yet and that it’s fixed for about 3 weeks, and I’ve read that on May 4th the court will fix dates for that, and I understand that will be later this year.
As part of the process that’s been ongoing, there’s a number of applications before this evidential hearing. One has been bail, and Mr Assange has been denied that. The other is adjournment. Mr Assange has certain due process constitutional rights, and that is that he should be afforded reasonable time to prepare, he should have reasonable access to his lawyers to be able to communicate with his lawyers, to obtain legal advice, and also to receive documents and communicate with his lawyers. That has been an enormous area of contention. From my observations it appears that Mr Assange’s due process rights have been fettered and obstructed. From what I’ve read and from speaking with people about what has been happening in the court, it appears that Mr Assange has had great difficulty having access to his lawyers and having legal advice and being able to prepare. And his legal team being able to prepare.
There are other applications and submissions that have been made prior to the evidential hearing.
One is on dual criminality. In order for the US government to succeed, they have to prove that the offences that they’ve indicted Mr Assange with in the US, that there are equivalent offences in the UK. That’s an issue that will be decided by the magistrate.
The other issue is applications by the defence to have the case stayed or dismissed. The court application that I’ve seen that’s been made by Mr Fitzgerald QC is the exclusion and exception to extradition based on political offences, and I’ll mention that in the US-UK treaty, there is a provision under article 4.2 that there shall be no extradition if the indictments from the US amount to political offences. And very quickly political offences fall into two categories. The first are pure political offences, and these are offences that are not common crimes but are crimes alleged to target the head of state or the government or a branch of government with the view in Mr Assange’s case to change policy. It’s very clear from the treaty that indictments of Mr Assange fall under political offences. Except possibly one – there’s a computer-related offence. That offence is what they call a relative political offence, meaning it’s categorised as a common crime but the purpose and motivation of that crime being committed or alleged to have been committed by Mr Assange was to change government policy. So I understand that Mr Fitzgerald is arguing that the court should not make an order to have surrendered and extradited to the US because these offences are all political offences.
The prosecution is arguing that the treaty provisions do not apply. And these provisions do not apply because they’re not in the extradition act. But there are unique aspects to the treaty in the UK extradition act. And that is clearly the treaty is part of the extradition act – it’s referred to, and secondly it’s been ratified by the UK Government. And there’s no provision in the extradition act excluding the political offence provision. So this is an important issue that’s going to be decided by the magistrate. Mr. Fitzgerald on behalf of Mr. Assange is also arguing that the US, in having this provision in the treaty for political offences is actually abusing the court process in the UK by seeking to have Mr. Assange extradited and asking that the political offence provision be ignored, even though it’s in their own treaty.
So what we would expect to see over the latter part of this year would be for these applications to be decided. Now, Mr. Assange has a number of defences that will be available to him at the evidential hearing, and those defences are incorporated into the UK extradition act. One of them is whether there will be a violation of Mr. Assange’s constitutional rights, so that’s when the fundamental rights and freedoms aspect comes into Mr. Assange’s case, and, for example, if he is sent to the United States, will he be ill-treated? Will he be subjected to cruel and inhuman degrading treatment or punishment? Will he be tortured? And I would expect that these submissions will be made in due course. And foundation for that application would be the treatment of Chelsea Manning. There’s another aspect in terms of the judges to considering whether to extradite Mr. Assange or not, is disproportionality or proportionality. And the court has to take into account Mr. Assange’s health, as well as whether a sentence is disproportionate, and I understand 170 years is a possible sentence for Mr. Assange. So the court will have to consider whether to grant the extradition request and make that order or not.
So, that’s a general understanding of what’s going on, and what we would expect to see in Mr Assange’s case.
DD: Thank you Robert. That’s really helpful because for so many of us we understand what’s going on more broadly in the world, particularly those of us who are supporters following the developments in the case, but we don’t really understand how the process of the court unfolds. So it’s really helpful to put those things in context and to see already a number of questions are coming in through the Youtube chat and also through the Q and A panel there are questions and comments which I think the other speakers will be picking up as well. SO if you could keep your questions going through the Q and A window at the bottom of the screen please, or if you’re hearing this on Youtube or Twitter please pass your questions through to us and we will try and have as many as them answered as possible.
Thank you Robert for that very helpful lesson in understanding the basics of the legal aspects of the case. I’d now like to ask Professor Mads Andenæs. Mads, given his background in arbitrary detention working with the UN Working Group, and also his illustrious academic career, will shed light on some of the issues around the cruel, inhuman and degrading treatment that Julian has been subjected to. I also passed a few questions to Mads beforehand so hopefully Mads will deal with those in his presentation. Over to you Mads.
MA: Thank you ve4ry much, and I’m sure you’ll come back to those questions if I overlook or forget one or two of them.
The starting point here is that there are some people with power in the state who regard Julian Assange as somebody who has offended vital interests of the state then are using all the powers of the state, and are attempting to do so within a legal framework. And these people are mainly in the United States of America, but also in the United Kingdom, collaborating with the forces within the US government system. Previously we had such collaboration with the Swedish authorities.
The cases are really quite complicated – there are really three rounds.
The first is the Swedish government, or prosecutor, requesting Mr Assange’s extradition to Sweden to be investigated and possibly to stand trial for different sexual offences. There are many issues there, but that’s the case which went through the English courts and ended up in the UK Supreme court. It’s after that decision that he then gets bailed and he then goes to the (Ecuadorian) embassy. When they break into the embassy with collaboration from the embassy and apprehend him in the embassy last year, he is then prosecuted for breach of his bail conditions. And he is getting a disproportionate sentence for that breach of his bail conditions.
The UK process which ended up in the Supreme court was then the legal correct and sufficient extradition request from the Swedish prosecutor for the UK authorities to be able then to hand him over to the Swedish authorities. There were judges in the UK Supreme court who dissented when they made their final determination of the legality of this extradition request. You had two of the judges; the president Lady Hale (who just retired), and the judge who soon afterwards became her vice-president of the Supreme court, Lord Mance. They held that the extradition request did not comply with the requirements of UK legislation and the European Arrest Warrant. It’s interesting because when you talk to lawyers about that, people who haven’t really read up, they say it’s a clear case that the legal issues were clear – they weren’t. There was also a process going on before the Swedish courts, and it ended up at one point in the Swedish Supreme court, and that was the question of could the Swedish prosecutor maintain the extradition request. And a reporting judge to the Swedish Supreme court, she said No, this is disproportionate under all circumstances. And the majority of the Supreme court did not then agree with her, but one of the judges did and gave a very clear reasoning for his point of view which was that the extradition request could not be maintained. And then the Swedish prosecutor then went to a first instance court and asked for a new pre-trial detention order which was necessary then to maintain the extradition request, and the Swedish prosecutor didn’t get that. And the judge was very scathing, very clear, saying that the prosecution had not made it’s case under all circumstances to maintain the investigation, as it should be in the Swedish system. And it was disproportionate at least in the context of the court granting a new pre-trial detention order which could then again be the basis for the extradition request. So that case fell.
Then of course you have the US request, which Robert Tibbo has explained is going through the English Courts and will probably end up in the Supreme court as the previous Swedish request did. Then if you move from what happened at a national level, which is quite confused, quite messed up, and in no way looking good if you look at it from the outside, so say now if you were a European body or a UN body. That’s where I get in. I’m not on the Working Group when it makes its ruling in late 2015, but they are looking at the UK process and they say this man was taken into isolation in high security prison – which he was, in 2010. This is disproportionate, said the UN Group on Arbitrary Detention, which is of course the UN specialist body on arbitrary detention, which is appointed by the UN Human Rights Council when the UK was a member at the time, where by the way the UK has never protested in the Human Rights Council or any UN context against a ruling by the UN Working Group – and for good reason of course. Although there have been many people who have criticised government ministers in the UK, and I’m afraid also some independent academics and commentators doing the government’s work in a way I find quite inappropriate in some of these instances because the UN Working Group had a very solid legal basis for its review. Now you could say if you go through these local processes – I mean in the UK ending up in the Supreme court, and in Sweden ending up in the Supreme court – well then it’s alright. The fact of the matter is it’s not, because we have this international system; we have the European Convention on Human Rights, we have the different UN instruments in particular the Covenant on Civil and Political Rights. They are there because states can not be trusted; if there is a strong enough state interest, states will sometimes fail, they will fail now and then, and that’s why you have this international supervisory system. And that’s when the UK, when these decisions and procedures were reviewed, the UN Working Group held that this constitutes an arbitrary detention.
What constitutes an arbitrary detention? Well, first of all, putting him into this high security detention – which was released from after a couple of weeks. And then the UN Working Group said Mr Assange was apprehended again and taken into custody by the UK authority. So when he walked into this embassy – which he did, from the street, after some previous arrangement I’m sure – then “how could this constitute a detention?” has been the argument by some of the commentators. Well, this is in fact house arrest.
How could the Working Group come to that? Well, it looked at some other cases. It made rulings before, based on rulings by the International Tribunal for Yugoslavia, and its own rulings. And one of its own rulings concerned the wife of a Chinese Nobel Prize laureate. She lived in a flat, she was not imprisoned. Whenever she walked out into the street there would be men in uniform who would stand around her, and she was compelled to walk back to the flat. Her telephone line was disconnected. Her friends gave her mobile phones which, at the time because authorities were not as efficient as they are today, my have worked for some minutes or half an hour, and this was in effect a house arrest which constituted detention, and it was arbitrary. That’s the background, that’s how the Working Group argued. And of course we know what happens to Julian Assange – when he’s apprehended by the UK authorities he’s again taken into disproportionate high security prison and under circumstances which he should not have been. In itself, that constitutes arbitrary detention. The Working Group later looked at his treatment, and they also looked at the conviction he got for having broken his bail conditions. And they held that under all circumstances to convict him for breach of these bail conditions would again constitute a breach of the prohibition against arbitrary detention.
Now the Special Rapporteur on Torture Nils Melzer, and a number of the other Rapporteurs have also criticised and held the UK authorities in breach of international human rights obligations. And I think that the most important point is that whenever a national authority – whether it’s a court or a prosecution authority – when they make decisions about detention, and particularly when it involves freedom of expression rights, rights of information, rights of journalists, they have to have a particular anxious review. Because these are cases where traditionally, the way courts often operate, they give way to strong state interests – they would not give sufficient weight to the rights of individuals, and the rights they have not only in the narrow context of detention but in the wider freedom of expression context.
That is important for the UK authorities. It’s not a question only of constitutional rights coming in through the extradition legislation. They have a duty to maintain, to defend his right against arbitrary detention, against torture, and also their duty to set the bar particularly high in his individual case because freedom of expression is involved. And if they don’t do so, they commit basic mistakes which will mean that international bodies – the European Human Rights court, the different UN bodies involved here, again will hold that the process against Assange is in breach of fundamental human rights.
Deepa, did that cover the questions you had for me?
DD: Thank you Mads. Thank you for that helpful contextual explanation. I will come back to you with some questions for both Robert and you, but over now to Ben Wizner. So far we have looked at what has already happened in the past in the human rights context, and also the constitutional context and the process as we see it unfold here in Britain. But one very important thing which is at the back of Julian’s mind and at the back of the mind of his lawyers is the treatment that Julian could potentially receive in the US. In addition to all the due process rights that have been violated, and in addition to the surveillance of his conversations with his lawyers, those kinds of breaches, it is also very interesting and depressing for us to think about what would happen if the rule of law was undermined and he was extradited to the US. To help us understand the US context and how the process would work in the US and to tell us also a little about the Special Administrative measures that Julian and his lawyers are likely to be under in the US, is Ben Wizner from the ACLU. Ben, over to you.
BW: Thank you Deepa for inviting me. Good morning, or rather good afternoon to many of you, and good morning here in New York. And thank you to Mads and Robert for that very helpful framing of some of the legal issues here. My remarks will be fairly brief. I see there are already a bunch of questions already, and I’m more interested in answering questions that you might have than giving you a long lecture. But I want to speak for a moment about why the Assange case is considered by many to be the most dangerous case for press freedom in the modern history of the United States.
This is the first time in our modern history that anyone has been criminally charged by the United States government for publishing truthful information that was lawfully acquired. We’ll come back to that, but first a little background.
As you’ve heard already, Julian Assange has been charged under the Espionage Act of 1917. This is a law that was enacted during World War 1 principally to crush dissent and to punish conscientious objectors to that war. To slightly simplify but not by much, this law makes it a crime to disclose what’s called national defence information, to anyone who is not authorised to receive it. As you can see, this is an extremely broad law. We don’t have an Official Secrets Act in the United States, but on the language of this law it can be used that way. On its face, it criminalises all leaks of sensitive government information, and there is no express exemption in this law for journalism. Journalists can also disclose or disseminate national defence information to people who are not authorised to receive it. The law makes no distinction between sharing information with journalists or by journalists in the public interest, and selling that information to foreign enemies for personal profit. It’s exactly the same crime.
Now for most of its history, the Espionage Act was not used to punish leakers to the press, and it has never before now been used to target a journalist. I think people forget this because we’ve seen so many prosecutions over the last 15 years under the Espionage Act for leaks to the press, but as late as the 1970s the top lawyer for the CIA testified to Congress that he was not certain whether the Espionage Act even applied to leaks to the press, but if it did, there had been an unprecedented crime wave in Washington going back decades because surely there had been tens of thousands of leaks to the press by high and low government officials that violated the terms of the Espionage Act. And it was not until 1984 that we saw the first conviction under the Espionage Act for a leak to the press; someone in the navy was convicted of disclosing a photo to a publication called Janes Defence Weekly.
As I mentioned, in recent years it has been much more common to see leaks to the press prosecuted under the Espionage Act, including of course Chelsea Manning and Edward Snowden, who Robert and I have represented – both facing charges under the Espionage Act. And it’s important to emphasise that under the Espionage Act these charges are essentially strict liability offences – there is no defence of public interest. If Edward Snowden were brought into a United States courtroom to face trial, he would not be able to introduce as a defence that these disclosures led to reforms of the law in the United States, that Congress changed our surveillance laws to narrow them for the first time since the 1970s, that courts held some of these programs illegal. None of that would be relevant or admissible in a prosecution under the Espionage Act. This is why of course Edward Snowden went to the airport and not to a lawyer’s office after disclosing some of this information.
Now, here’s why the Espionage Act under which Julian Assange is charged is so dangerous for a democracy. Let’s just think in the US context of what the United States classified at the highest level, the top-secret classification in the last two decades in which I’ve been practising law.
It was a top national security secret that that US military police officers tortured and sexually humiliated defenceless prisoners in Abu Ghraib. It was an even more classified secret that the US established and operated a network of secret prisons around the world and kidnapped foreign citizens, shackled them, and brought them to those places where they were interrogated without any kind of legal restraint. It is a top secret – and it remains one – that the CIA operates a targeted killing programme of terrorist suspects abroad. And certainly, it was classified at the highest level that the US had developed and deployed a global system of mass surveillance without the knowledge or consent of our public.
Now all of these things were disclosed through the press to the public. Every one of those disclosures was a serious felony without any defence under the law if those cases were brought into a court. But even with this trend of more aggressively targeting leakers for disclosing information in the public interest, it has still generally been understood that charging journalists or publishers would be an even more radical step. And as I said before, even though the text of the law has no exemption for journalists, by tradition, it has been understood that that would be crossing a certain kind of Rubicon, that freedom of the press would be very, very seriously challenged if, if the government ever brought charges against a journalist. And this is why the Obama administration which certainly had no love for Julian Assange, and had opened a criminal grand jury to explore whether there might be charges that it could bring against him, ultimately decided that it could not bring these charges in good faith. And that was because they realised that there was no principled way to distinguish between what Julian Assange and WikiLeaks did, and what the Washington Post, The New York Times and other more mainstream organs of investigative journalism do on a daily basis – that is essentially compete with the government for control over secret information and then decide, against the government’s wishes, to publish that information.
Now, in the Assange case, the Justice Department has attempted to portray that as a criminal conspiracy, that Assange conspired with Chelsea Manning in order to violate our secrecy laws. But if you think about it, isn’t all investigative journalism in the national security realm a kind of criminal conspiracy? Doesn’t every investigative journalism try to find sources in government and try to persuade them to violate their laws and their obligations in order to share that information in the public interest? This is certainly what legendary investigative journalists like Seymour Hersh, like Barton Gellman and others do – they develop sources over the years, they cajole them and persuade them to disclose information at great risk to those sources. And then they publish it even though the government considers the leaking of that to be a serious felony. So it turns out to be quite difficult to find a way that is principled to distinguish what Wikileaks is alleged to have done and what other journalists do on a daily basis.
And this is why in the US, so many journalists and news organisations that are quite hostile to Julian Assange, personally, have been alarmed by these Espionage Act charges against him – because they understand the threat to themselves. Does anyone seriously think that the Trump administration would not use a precedent established in an Assange prosecution to target other news organisations that it is hostile to? I think the question answers itself. So those are the nature of the charges that Assange would face, and it’s true that he could be charged for a separate felony for every classified document that Wikileaks published. So the amount of criminal exposure that he might face is really, essentially limitless, and certainly enough to keep him in prison until he dies.
Deepa asked me also to say a few words about the conditions in which he would be likely to be held.
This is not totally unique to him. I think the US prison practices are considered barbaric and inhumane by much of the world, in particular, how much we rely on isolation and solitary confinement, which in the Manning case was part of the UN’s determination that those conditions were torture. I don’t think there’s any doubt that Julian Assange would be held in isolation. The US intelligence agency has dubbed him a foreign hostile intelligence agent. I think it’s very likely that he would be held under what are called Special Administrative Measures. These are conditions of confinement that were developed to hold certain terrorism detainees. The fear that the US government had was that they would use the contact they had with the outside world through their lawyers to send instructions to their followers to carry out attacks. So their communications with the world are highly restricted and highly monitored. They’re not able to get news, except in some cases, maybe a month later, even their communications with their lawyers can be surveilled, to make sure that they’re not using those communications as a means of sending out harmful instructions to the world. And again, given the rhetoric that we’ve seen, time and again, from senior US officials about the Assange case, I don’t think there’s any serious doubt that there would be an effort to put him into one of these communications management units, to put him under special administrative measures to hold him in as much isolation as possible.
And all of those conditions should be considered by the UK court in making its determination. So obviously, it is the hope not just of us human rights lawyers, but of the whole journalism community in the United States, that this case never leaves the United Kingdom, that the UK court recognises the political nature of this offence, and does not establish the principle that a journalist can be extradited.
I want to make one more point about what’s so extraordinary about this legal case. And that is that the arrogance of the United States to suggest that a foreign journalist should be bound by the US’s own criminal secrecy laws. By what right, should the US be able to say that an Australian publisher violates the law by disclosing American secrets? In the last several months alone, we’ve seen the New York Times, run lengthy investigative reports in which it published top secret documents from both China and Iran. And these were very, very admirable pieces of investigative journalism – the world needed to see these documents. But you can be quite certain without being an expert in either Chinese law or Iranian law, that the publication of these documents was a crime in those two societies. What would be the response of the United States, if China and Iran said we need to extradite the journalists and the publishers for their violation of our Espionage Act? We would cry foul, and we would say that is a threat to global press freedom. And I think this is an aspect of the Assange case that hasn’t been sufficiently explored – the notion that one state can essentially enforce its own domestic secrecy regime with severe criminal penalties on journalists and publishers who are in other countries.
And with that, I will stop for now. And I look forward to questions from Deepa and the other participants.
DD: Thank you very much Ben, that’s really given us a rounded picture of what has happened and what could happen. I’m going to move on to the questions now and just give you literally 30 seconds for our three speakers who have been focusing on each other’s presentations, to look at the Q&A tab at the bottom of your screen and to also allow all the readers in the audience to have a quick look at the questions and then I’m going to start posing them live to you. Thank you very much to all those of you who have offered us questions, we are just quickly looking through them and trying to make sure we answer as many as possible.
Can I start with a quick question just on the basics to Robert Tibbo. Robert, would you be able to tell us something about one of the things that many of us don’t understand, especially as grassroots supporters who are not steeped in the law. Could you tell us about this idea of non-derogable rights that you were telling me about the other day and how they apply in Julian’s case, particularly?
RT: For Julian’s case, in the extradition act, the judge – if the issue is raised – must assess or determine whether any constitutional rights have been or will be violated if Mr Assange is extradited to the US. And it’s quite clear to me that if he is sent to the US, he will be put into conditions that amount to cruel and inhumane, degrading treatment or punishment – and also torture. Now, the court will have to look at Mr. Assange’s personal physical characteristics and, clearly, he’s quite fragile. He’s had many health issues. And the treatment that Ben has talked about, certainly, Mr. Assange should be treated, will be ill-treated and it would amount to torture, it may even risk death. Mr. Assange may not live very along under those conditions.
These are all non-derogable rights, meaning that Mr. Assange has a right not to be ill-treated and not to be tortured. And he has a right to life protection, and he should not be put under circumstances where he’s likely to die. That means a person cannot be tortured even for five seconds or one second, they cannot be ill-treated for one second or five seconds. There’s no exception to this. So, in Mr. Assange’s case, I would expect that his defence will raise these issues and they will point to the prison conditions and likely have an expert provide testimony on this. And they’re going to look at the Chelsea Manning case, and other cases on how people held in remand are treated. So I would expect this will be one of the core defences that Mr Assange will perform. The other issue is the proportionality. That’s another provision.
Once these applications are made to the magistrate, the magistrate must make a decision. And if there are any anticipated constitutional rights violations if sent to the US, then the magistrate must deny the extradition request.
MA: Can I just add to that? There are three grounds here.
There’s of course, torture, as you mentioned. The ill-treatment, torture, etc – Article 3 under the European Convention.
Then you have Article 5 under the European Convention, the prohibition against arbitrary detention.
And then you have freedom of expression – Article 10.
And then, under all of these provisions, you end up with something which is similar, although there’s no proportionality review under torture, because torture or ill-treatment is prohibited. When you’re discussing whether something amounts to torture or ill-treatment, you have to look at the facts and you have to look at this. It is absolutely necessary in order to achieve a legitimate aim. Otherwise, you are more easily falling within the prohibition on torture or on ill-treatment. And the same thing applies to detention. And of course, freedom of expression is typically the proportionality provision where you are looking at other countervailing interests. And you’re trying to see, is this intervention into freedom of expression unnecessary, and is it proportionate? And that’s something that judges at all instances should take account of. And if you’re looking at the other cases before the UK courts – the bail case – or even if you’re looking at the Supreme Court in its decision about extradition to Sweden, they haven’t taken this into account. And it’s not so that they understand that these duties are on all bodies of the state including courts and particularly, of course, in practice on courts of last instance. But of course here in this extradition context, it is so obvious that this must be taken account of and whatever happens at first instance – and frankly, what we’ve seen at first instance, in this case is a pretty poor showing, you know, what the judges have allowed themselves to say during the hearings, the put-downs, the characterisations. It’s very un-judicial and it has been a great surprise to me who does not follow first instance court proceedings that often, it has been a great surprise to me. I have never seen anything like it.
Well I hope these things will hopefully be clarified now before the next round of this extradition hearing. Still, at first instance me must just hope that the judge manages to control himself or herself so that you don’t get that completely biased impression we’ve seen this far.
DD: Thank you Mads. Before we go into the more detailed questions, one more very, very basic question. Sorry Ben not to direct the question to you, but just again to Mads. Could you explain why Julian’s prior detention, both in the Ecuadorian embassy and elsewhere – which some newspapers and media organisations categorise like a holiday – has been classified with the term arbitrary and how the Working Group on Arbitrary Detention thinks about what’s arbitrary about this detention please, just for those of us who are new to the case, just for the first time and trying to understand what’s going on. And then I still have eight to ten questions from a number of much more complicated angles like non-refoulement.
MA: Yes. Basically the moment Assange had stepped into the street, he would have been apprehended, and the working group held that he could not be apprehended because they hadn’t made out sufficient grounds for keeping him in detention. There was also this precedent of putting him into this high security detention, which the Work Group held was in itself arbitrary. The point then was, he was in this embassy, and the comparison must be the house arrest. So you stay in your own home – can that constitute detention? Yes, it can. And then I mentioned the instance of something which wasn’t a formal house arrest, but that was an actual house arrest, with the wife of the Chinese Nobel Peace laureate, who then had no means of communication. And the moment she stepped into the street, she was then surrounded by agents of the state in suits, who then made her return to her flat. The point was then that there was a clear jurisprudence about house arrest and about similar forms of restrictions, which then could constitute detention as well. And so again, then, Assange is in the embassy, he’s free to step into the street, he could absolutely do that anytime he wanted. As those who were there or read the newspaper stories, there was a constant police presence, he would have been apprehended. What would then happen to him? He would be put into prison. And in addition to that, he will be put into this high security regime which in itself then constituted arbitrary detention. So therefore, there was no doubt in the Working Group about this on the basis of its own jurisprudence and that of the international bodies.
DD: Thank you Mads. That’s very helpful. And one of the two related questions. These are from Alina and Stephanie on the chat, and I’m going to read these out because there are a number of our viewers who are on the wider live stream. The question was, firstly to thank the speakers for their input, but to say is there universal jurisdiction or responsibility to protect when a state commits crimes against an individual rather than on a large scale? Also can Julian Assange and his team go on the offensive and sue the UK government or judiciary now, and maybe even the legislative branch, given the infamous Julian Assange exception to the laws regarding European arrest warrants for arbitrary detention and psychological torture, which have put his life in danger and have greenlighted possible refoulement to the US? That’s the first part of the question. The second part of the question – just for our viewers who can’t see it – is, Stephanie makes a point that the whole process seems to be being conducted in bad faith. And for example, given the current risks that Julian faces, given he has a chronic lung condition which he’s had since 2012, and we have COVID raging through prisons and detention facilities. She says she doesn’t know the legal term for it, but it seems a very frivolous way of eroding Julian’s rights and everyone’s time – time that you cannot get back and especially you know many of us are now aware that Stella Morris has come out and said Julian has two very young children. And as a parent myself I can tell you the first few years are amazing and wonderful. So Julian is missing out on all of these things. His health is deteriorating and he’s likely to die, and the little people give him hope. He’s not having access to them. So could I ask all three of you if you would offer your thoughts on that please? Starting perhaps with Robert or Ben, because Ben hasn’t had a chance to –
BW: Actually I don’t think those questions are for me because they’re about whether there might be a cause of action in UK courts. They’re about international law. So if there’s a part of it where I can weigh in after the other speakers go I will, but why don’t you let them go?
DD: Thank you. Robert Tibbo please.
RT: I’ll address the latter part of the question and that is, from what I’ve seen – from what many observers have seen – is that the behaviour of the magistrate [MA: shocking] appears to be unfair. [MA: shocking really, huh?]. Yes, it may have amounted to an appearance of bias. This issue is going to be decided by higher courts in the UK. And Mr Fitzgerald is doing a wonderful job advancing his client’s case and pointing out the behaviour of the magistrate and also the behaviour of the court security and how they’re physically man-handling Mr Assange in court. This is all shocking. But again, this is going to be an issue that’s going to go to the higher courts and depending on what the higher court said, that day Mr Assange may have other remedies under UK law and pursue the government at some point in time. But unfortunately, right now Mr Assange’s legal team has to continue fighting through the extradition hearing and make sure they’re prepared for the higher court appeal.
Another point is that whoever wins at this stage I foresee that this is definitely going to go up to the higher courts. As Mads said this case will go to the Supreme court and this will take many years.
I have two other concerns related to what Mads said. Mr Assange is at risk of being detained another 3, 4, 5 or 6 years, and there’s a constitutional right that hasn’t been mentioned anywhere yet, and it is also under Article 5 of the European Convention on Human Rights. It is security (purity?) of the person. My view is that there may be a case to be argued in Assange’s defence. From the time he was arrested by UK authorities in 2012 in arbitrary detention in the Ecuadorian embassy and his treatment right now there may be a case to argue that there’s been a disproportion infringement on the security rights because you can see that he’s being ground down. He’s being ground down, pummelled down by the UK authorities and his treatment in the court. I’m shocked that the magistrate has not stepped forward to take control of his treatment – his adverse treatment within the court – and the magistrate has a right to do that.
DD: And there is a prior precedent for that which Mr Fitzgerald has argued in court. Mads did you want to add –
MA: Yes, just that I completely agree with what Robert said – it is obviously on the magistrate to do this and that has been denied in several rounds in a way which looks very bad, it looks bad in the UK, it looks very, very bad abroad. And then to keep to the broad question then – international law. The Working Group already said in 2015 that arbitrary detention and right to compensation. So as a matter of international law, the United Kingdom has a duty to compensate Mr. Assange. And the arbitrary detention prohibitions in the European Convention on Human Rights Article 5, or in the Covenant on Civil and Political Rights, Article 9, have particular provisions about the right to compensation: they are the only human rights which have a direct right to compensation in their provision in these instruments. Now, how that will work in the domestic court, and how practical, it actually is to get the compensation is one matter, and other matter is that it has been established already at an international level that the UK authorities have this duty to compensate Mr. Assange.
DD: On that point Mads, there’s a question for Robert Tibbo, which is, is there a real chance of bringing the case before the European Court of Human Rights? And this is a question from Haika, asking what is the chance that this comes through to the European Court of Human Rights? And I wondered if Mads, between you and Robert, you could offer some thoughts on that.
RT: I’ll let you lead on this.
MA: OK. Well – yes, obviously it’s within their purview. It is a highly political case. That’s why the EU and UN bodies have proved to be more effective. Because the UK and the US – the UK has less influence. Sweden and the UK have less influence. The UN bodies apply the law in a more independent way. This may surprise somebody but people who follow these bodies will not be surprised. Is there a possibility of complaining over several of all these stages? Yes. So typically, when the case has gone to the Supreme Court, there is a right of complaint for Mr. Assange. What will that mean? Will it be effective? Many question that he has this right. Absolutely. Clearly, that is a violation of international law and European Convention on Human Rights. Yes, absolutely. Clearly, it has been established by all the international bodies already. And so that’s the best answer I can give.
DD: Thanks, Mads. And could I also ask – one of the things that we’ve had discussions on outside this group today. People have asked what is the impact of stuff like Brexit on a) the European Convention of Human Rights, which has actually been transposed into British law, I believe, and b) the ability to appeal to the European Court of Human Rights. Are there any implications now, if Britain comes out of the EU in December and what, what kind of retrospective rights will Julian have? Would you be able to say a few words?
MA: As of now, there’s no limitations on his right to bring a complaint. The rules say he has to exhaust all domestic remedies. It means basically when it has been in the Supreme Court, because we have to hope and frankly expect the Supreme Court not to accept this extradition – there’s such a clear legal case. So, it should never come to that. If it should, which it won’t, then there would be a possibility for us to bring this complaint that I mentioned, and that would be unaffected by Brexit. And I don’t think the UK would withdraw from the European Convention or change its Human Rights Act. And if it was going to do it, it is not going to happen straight away, and it wouldn’t, I think, have any effect on Mr. Assange’s claim.
RT: I tend to I tend to agree with Mads. I’m not a UK qualified lawyer, but from what I’ve read, the UK hasn’t amended the Human Rights Act. They haven’t withdrawn from the European Court of Human Rights, or the Convention. But Boris Johnson has publicly stated recently that they intend to withdraw but again, that will take some time and I don’t see the British government taking any active steps to withdraw at this stage. So hopefully that won’t happen. And Mr. Assange will have a right to appeal to the European Court, if it comes to that. But I do agree, hopefully the Supreme Court in the UK will make the right decision and quash any extradition order or affirm that there should not be an execution order by the lower courts.
DD: I think it’s quite an interesting time to talk about this, because if we look at the back of the STRATFOR leaks – having looked at them it occurs to me that there are statements that they were going to move him from country to country, to make sure he eats cat food in prison, to to grind him down, to grind his family down – seems to be something that is already happening. And the plans of STRATFOR have come into play. One of the things that a lot of people here are concerned about is firstly, there, there are deep concerns about the behaviours of people like Paul Close of the CPS, and others.
Some of this has happened in the dark. We only know about the CPS’s collusion with the Swedish prosecution through Freedom of Information requests. Stefania Maurizi was on the last Free the Truth event, and she made the point that even with the information that has been provided, several bits of key information have been redacted and there have been no reasonable grounds provided for those reductions. So one of the questions from the audience is, how can the case which currently is not hugely well covered by the media other than for sometimes repeating the smears or giving superficial analysis because clearly you would expect that journalists would be interested in this case. And yet, many don’t seem to be offering it the level of expertise and insight that you would require. How can this case be moved to a larger court where justice can not just be done, but also be seen to be done so that, as somebody who’s visited the courts, last time I was there only five people were allowed in the public gallery, and that was during Corona and before Corona there was once where we were 13 in the public gallery. So the press is not reporting on it. The public’s not able to see justice being done. And we have people talking about open justice. So how can we ask for remedies that allow for this trial to take place in public? And what kind of remedies do we have within standard process without taking them to court? … holding them accountable for misfeasance in public office?
RT: I’d like to touch upon the issue of open justice, because in Hong Kong I’ve done a number of cases and made a number of applications and open justice is a constitutional right under the Hong Kong Bill of Rights, the Basic Law, but also the International Covenant on Civil and Political Rights. The leading case precedents in Hong Kong are actually from the UK. And the crux of it is that the public has a right to go in and listen, but also to communicate, to receive information. That attaches itself to the fundamental right of freedom of expression, where freedom of expression is not just expressing oneself but also the right to receive information. And Mr. Fitzgerald has raised this issue about open justice in these proceedings from what I’ve read, and this is a significant concern.
I think at the end of the day, this is going to be an issue that will be decided in the higher courts, because it goes to whether Mr. Assange fundamentally is receiving a fair hearing at this stage. In my view, he isn’t. And the one thing that struck me was, last week the adjournment application was made by Mr. Fitzgerald on Mr. Assange’s behalf and the magistrate was against it, but it was the US Government, as the prosecutors, indicated that an adjournment was probably the best way forward. So you can even see the US lawyers realise that something is going awry in this case and that I’m quite sure they’re looking at what’s happening and thinking well on appeal any extradition order is going to be quashed because Mr. Assange hasn’t been provided the due process rights he’s entitled to. And that that includes having the case open to the public and for robust reporting.
MA: And as you saw, there was very limited reporting on Monday’s ruling, wasn’t it, the way it appeared in the mainstream media – it came late and it was very low down on any page.
I think it’s important to realise the power which is against Mr Assange. For each lawyer like Robert there’s hundreds on the other side. Now, we are of course relying on the press for good reason. But again, the majority of people in the press, and the people who make decisions, they basically support the government and support the government’s policies. And at least when you come to issues such as this, so fundamental in some people in power’s view, the sympathy in the press will not necessarily mean anything. So first of all, it may not be for Mr. Assange and their instincts would probably be more to protect and defend the government. And of course, as Ben laid out the US scene, in Europe, it’s much more split on the press side; leading editors and journalists, very few have been as clear as some of the Americans have been.
And just on this point – how do you approach it? In many European contexts and some Americans as well say that Mr. Assange is not a journalist, he is not involved in press activity. So therefore, he falls outside the protection we should have as press or as journalists or editors.
And the last point I think you mentioned Deepa, Stefania Maurizi, who then found out what seems to be very problematic collusion between Swedish and UK prosecutors, and she used Swedish access of information rules to get access to documents there. Very difficult for her, and very difficult to get access to information on the UK side. What she found was surprising, and shocking. It was disloyal, you know, for public officials to get involved in that kind of collusion from what we’ve seen. And so again, you know, that’s something which came up very recently because she hired a Swedish lawyer who assisted her as an independent press person, without any power of a big press organisation behind her. And that is quite worrying that the resources, even at this stage, behind Mr. Assange are so limited compared to what you find on the other side.
Well, distressing. Perhaps not surprising as it is not to say there are some people in the state apparatus in the UK and in the US. In the US in particular, but in many other countries as well, who regard this as a vital state interest to have Mr. Assange sent to the US and in effect locked up for the rest of his life, however long that may be under those conditions.
DD: Thank you, Mads. Before we go on to the next round of questions, could I make some important announcements, please? There are some very interesting points that have come up today in relation to the press and press freedom. I’d like to remind you of an event, which is taking part as part of a virtual global march for World Press Freedom Day. At 11 o’clock tomorrow morning, I will be hosting an interview with a journalist who has had the courage to put together over 1000 journalists for Journalists Speak Up For Assange. Serena Tinari is a Swiss journalist. She’s going to kick us off at 11 o’clock tomorrow with an interview, followed by a discussion from two very eminent academics who have been involved in scrutinising the media, who have been an involved in understanding propaganda, in understanding how narratives are shaped – Professor Des Freedman and Justin Schlossberg. They will be talking at 1130 via the Free the Truth banner tomorrow as part of World Press Freedom Day. In addition, later on in the day at about two o’clock we will have Alison Mason talking to two very interesting young independent journalists, Tareq Haddad and Mohamed Elmaazi. And then later in the evening at about 4pm, Scots Defend Assange will be having a conversation with Chris Williamson, John White the journalist, and with Greg Hadfield, former journalist, so we have some BW: Maybe I’ll just start with what the charges are. I obviously will not comment on the parts that are on the UK’s judiciary in particular.
The charges against Assange were unveiled in two stages, as we heard before.
The first charge that was disclosed to the public was under a US law called the Computer Fraud and Abuse Act. This essentially alleges that Julian assisted Chelsea Manning in violating her own legal obligation not to access certain parts of US military computers. So, the core crime was committed by Chelsea Manning; she gained un-authorised access to certain parts of the US military’s computer system to which she did not have lawful access in her position. And Julian, by offering to help her crack a password, essentially shares the guilt for that offence.
Now that charge is both legally and factually weak. It’s legally weak because it’s not at all clear that Chelsea Manning actually violated the Computer Fraud and Abuse Act. Although the military court said that she did, most scholars believe that that charge would not hold up in a real US Federal court where Julian would be. And if Chelsea Manning didn’t violate the Computer Fraud and Abuse Act, Julian certainly cannot be guilty of conspiring to help her violate that law. It’s factually weak because we know that at the time that Julian is alleged to have had a conversation with Chelsea Manning in which he allegedly offered to help her crack this password, she had already disclosed the bulk of information to WikiLeaks. So that this was a really factually irrelevant conversation that they had had.
The reason why the US led with that charge was precisely because they knew how controversial the Espionage Act charges, which are the ones that came next, would be, and how those would be viewed as an attack on journalism. And what in fact you saw, when this Computer Fraud and Abuse Act charge was revealed, was huge celebration and relief in the US legal and journalistic communities. People said, Oh, this is terrific, they found a way to distinguish what Assange did here from what journalists do on an everyday basis, because journalists are not trying to help their sources hack computers or give them passwords. That’s not journalism.
So this is a really easy way to distinguish it. And I honestly, someday, I’d like to know what went on in the US government how it was that they started with this charge, and then just a few weeks later, came with the real case. And the real case was 17 more charges, which essentially were, as the questioner said, criminalising investigative journalism, charging him with the offence of publishing the documents that Chelsea Manning was convicted of having provided to him. And this is where again, it becomes extremely difficult.
By the way, you don’t have to believe that Julian Assange is a journalist, or that Wikileaks is a news organisation to understand that these charges are a threat to press freedom, because the charges are about the conduct. US law doesn’t define journalist – and it shouldn’t define journalist. We don’t want to get into hair-splitting about whether a blogger is a journalist or whether this person is or is not. The question is, is the activity a journalistic activity? Is this publishing? And we shouldn’t spend time on the status or character of the person who’s doing that kind of publishing, or even really necessarily their motivation. Because we don’t want courts saying this person did this to help the country, this person did this to harm the country.
The reason why the Espionage Act charges are such a threat to the Washington Post or to the New York Times, is that they allow the government to make it a crime to publish truthful information that was lawfully acquired. Right now, if the US government had evidence, and I want to be very clear about this, if the US government had information that Julian Assange or Wikileaks had actively assisted in the hacking of US government computers in order to obtain the information, that would be a chargeable offence, that would not be the same kind of threat to press freedom. There is no evidence that that has happened, not a shred of evidence that that has happened. If the government had that evidence, they would have put that forward. What he is charged with is publishing the information that was given to him by someone else’s criminal activity.
And that’s why this case is such an enormous threat to freedom of the press.
DD: Thank you, Ben.
Robert, Mads – did you want to add anything?
MA: I agree with all those points. But it has been a major argument in the European context that press people who do not want to support Mr Assange’s case that it doesn’t affect us because he’s not a journalist. And well, of course, it’s a completely inappropriate argument. And I agree with all of Ben’s arguments. The point is, that, of course, free speech discourse is not that sophisticated, and it’s much more opportunistic in the way it’s used by some press people in the European context.
But also this idea of what was behind the way that we had in Europe a discussion around the first set of charges, that there were so many who said that before the violation of the Espionage Act indictment came out, that idea that it was the Computer Fraud Abuse Act indictments – that that was the whole case. That was the true case. There were a number of very respectable mainstream journalists and media who were very tough on that in in the UK and in Europe otherwise, and who came up with a very strong defence of the actions by the US government on that crime. Not recognising of course, as you said Ben, the real reason behind came out shortly afterwards. And you had a series of issues when you extradited on certain grounds, what limitations do then follow of the extradition and to what extent will those limitations be enforceable as a limiting factor on the prosecution later on in the US. Useless discussion! Absolutely not any purpose at all except perhaps legitimating an extradition on the grounds which – well, …
DD: Thank you, Mads.
And so, in terms of this case, I think we have a few more questions to answer, but we’re very getting very close to time. So I wanted to highlight a few things for those of you who are interested in the legal aspects of the case. Over 40 International jurists including Robert Tibbo and others, have signed a letter condemning the way in which Julian has been treated, pointing to the issues and including the extraterritorial reach of the US state, the breach of legal privilege and – just to whet your appetite – we are going to have a future event which is scheduled in the next few weeks, which I will announce through Twitter and through other social media, on the Spanish case, and how Julian’s rights were breached so egregiously.
There are also issues that many of us will be considering in relation to the way the CPS colluded with the Swedish prosecution in order to prolong what was a case where charges were never even brought. And there is a great danger there both on the Swedish side in terms of the way in which not just due process rights were undermined, but that the mechanism of the state was hijacked due to essentially abuse and torture and persecute one individual. And this is something that many of us will be deeply concerned about.
We’re also deeply concerned about how the British CPS has been so not just so badly behaved and colluding with the US and others to delay the Swedish prosecution, prevent the Swedish prosecutors from coming over to interview Julian, to giving them advice on how to cover up things to the media in some ways, and most importantly, in subverting a lot of the basic procedural things that we expect the Crown Prosecution Service to be able to do here.
Lastly, I also want to highlight to you that we will be having an event. Many of us have heard and those of you who came in early to this call and those of you immediately after this call that we are showing a video. It’s only about six minutes, from our first Free the Truth event, where Nils Melzer explains psychological torture. And we are also going to have an event soon, with psychologists and experts talking about why Julian’s case is about psychological torture, why it’s not just about why he needs to be released on bail urgently.
I’d urge you to write to your MP. The DEA website has information on what you can put in it. Julian is a vulnerable prisoner. He is at great risk from COVID because of his lung condition, and because of the effects that torture has had on his body and on his mental health. Lissa Johnson, a very experienced and well-regarded psychologist says when people talk about Julian’s mental health, it’s like grabbing a hammer and hitting somebody 500 times and then you find that they are hurt and you say, Oh, yeah, that person has a physical injury. No, the person’s been beaten up. Versus you know, if Julian has mental health issues now, it’s a result of ongoing and prolonged psychological torture. So, we’ll be covering all these issues in the next few weeks or months as we proceed to the trial. And we hope that the judge will treat Julian fairly in the weeks to come.
I’d like to now pause here and thank our speakers for their contributions and for their time today. And thank you to those of you who woke up very early to join us. Thank you to all our guests. We’ve been very grateful for your questions – we have not been able to put all the questions to the speakers, but we will try to have future events where these questions will also be answered. And thank you very much for participating. Thank you to Ian for helping organise this event. And thank you to Don’t Extradite Assange and their technological support team who have been very, very helpful in putting this event together.
Thank you very much. Bye bye.