The Turning of the Tide
A Cynic May See All This as a Further Kick Into the Long Grass
In the normal run of things, if a very senior judge instructs you to give an assurance to their Court, it would probably not be wise to avoid giving the assurance, to devote a huge amount of text to trying to obscure the fact you have not given the assurance, and then to lecture the judge on why they were wrong to ask for the assurance in the first place.
Most lawyers would probably advise against that course of conduct. But this did not deter the fearless James Lewis KC, back to lead for the United States prosecution against Julian Assange, eyes twinkling and his neat nautical facial hair having grown rather wilder, as though he had decided to assume a piratical air to match his reckless conduct of the case.
This day of the Assange hearing felt rather different from all the other days these past 14 years. For one thing, when I arrived early in the morning, I was neither freezing nor drenched. Instead the sun was out and the sky untroubled by any thought of rain.
The many supporters gathered outside the Court appeared more colourful and cheerful than of late, and I was happily struck by the very large amount of Free Assange graffiti I passed on my mile long walk to the court, sprayed all over central London.
I was very confident we would win and this would be a good day, so confident in fact that I mounted the podium and broadcast it to a slightly startled Strand.
You will recall that in the last High Court judgment, the court had requested assurances from the US government against the use of the death penalty, and that Julian would not be barred by his nationality from claiming the freedom of speech protections of the First Amendment in a New York court.
The Americans had provided what seemed to me—and more importantly to Julian’s legal team—sufficient assurance against the death penalty.
On the right to plead the First Amendment, plainly no sufficient assurance had been given. The US government had simply assured that Julian’s defence in the US would be entitled to seek to make a First Amendment defence.
It is important to understand that the High Court has not asked for an assurance that the First Amendment argument would ultimately prevail against other factors, e.g. so-called national security. They had merely asked that the line of defence not be barred on nationality alone. The US assurances had sought to avoid the question completely by ignoring it and seeking to conflate the other arguments that might prevail against the First Amendment.
This was so blatant, I did not see how the court could rule that the US assurances were sufficient, and still retain any intellectual self-respect. My observation of judges Johnson and Sharp at the last hearing was that they very much possessed intellectual self-respect. So my optimism of winning the right to a new appeal was very high.
To match the bright new morning, the case had been moved to a new, much bigger and brighter courtroom. The audiovisual system for the press in nearby rooms broadly worked. Efficient new crowd management systems were in place. I was even given a laminated card entitling me to my place in the main courtroom, as opposed to an ad hoc scrap of paper. I had been spared from standing in the queue by Jamie, Jim and the wonderful volunteers.
What is more, Edward Fitzgerald was sporting a different horsehair wig, possibly a century or so younger than the previous model. For those who poo-poo the effectiveness of this blog, I can report that he told me that my comments on his wig in my last report caused him to dig out his spare. This blog gets results!
Once we had all settled in to this resplendent fake-medieval courtroom, with its extraordinary lantern roof architecture flooding light in from above, Fitzgerald rose and launched into the case with a notable lack of preliminaries. He appeared a bit puzzled at what he was meant to be arguing against. It was like punching fog.
Fitzgerald accepted that the assurance on the death penalty was sufficient. But the assurance that Assange could rely on the First Amendment was inadequate. It merely said he could “seek to” rely on it.
Furthermore the “assurance” did not even commit the prosecutor not to argue that Assange should be denied First Amendment protection on the grounds of nationality. The original statement before the court from US Prosecutor Kromberg that the prosecution may do that, still stood.
Even if the prosecution were to commit—which they had not—that they would not argue the point, there could be no guarantee that the US court itself would not debar Assange from First Amendment protection on account of his foreign citizenship, following a number of precedent cases including at the Supreme Court.
The High Court had made plain that this was a real concern of discrimination by nationality contrary to the Extradition Act, and its concern had not been addressed by the United States. “There is a real risk of discrimination and that risk survives the equivocal and downright inadequate assurance.”
Mark Summers KC then stood to complete the defence argument.
This transformational day had its greatest effect on Summers. Gone was the anger at events, the simmering impatience at the failure of the judges to grasp the arguments. Instead, he was so softly and sweetly spoken nobody could hear him. As he rose, the sun inched across the sky just enough that a clear shaft of sunlight pierced the lantern window and illuminated Summers. It seemed an effect too bold for Hollywood, possibly something out of Monty Python and the Holy Grail. I am pretty sure I heard angels singing.
Summers said he had the difficult task of countering the US arguments before they had made them, and asked the court for permission to speak again later, which Judge Dame Victoria Sharp—who had obviously also heard the angels singing—agreed immediately.
Summers enumerated the US arguments from their written submission. He went through these as:
1) Assange will be on US soil during trial and thus the First Amendment will apply.
But this Summers said was inconsistent with Kromberg’s sworn statement and with previous case law.
2) Assange might be found to have been on US soil when offences were committed and so the First Amendment would apply.
Except, said Summers, Assange clearly was not on US soil at the time.
3) Nationality is a narrower concept than citizenship so no relevant discrimination is taking place.
Summers said this was plainly wrong as shown by many examples including the Refugee Convention.
4) Nationality was only one of the factors which might lead to the first amendment not being applicable.
Summers pointed out that if nationality was a factor, that was discrimination. The existence of other factors was irrelevant.
5) The United States was saying that the 14th Amendment—which grants citizenship to all persons born in the United States—was somehow relevant.
Summers looked perplexed and dismissed this argument with a wave of his hand.
It was now time for James Lewis KC to re-enter the fray on behalf of the United States. His number 2, Clare Dobbin, who had replaced him so inadequately in the last hearing, was nowhere to be seen. I fear she may not just have been relegated back to the substitutes’ bench, she may have been transfer-listed.
Lewis said that the burden was on the Appellant (Julian) to prove there was a serious possibility of, or reasonable grounds to fear, prejudice on the basis of his Australian nationality.
Section 81b of the Extradition Act provides that the court could bar extradition where
if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
It is an anti-discrimination clause, which means you need to show unfair treatment against that of the comparator, in this case a US citizen.
Lewis than appeared to take a real swing at the absent Dobbin. He stated that he wished to draw attention to a Court of Appeal judgment which “for some reason” had not been highlighted at the previous hearing.
In a Court of Appeal case, the Foreign Secretary had won against a claim that it was unfair discrimination on his part to treat UK citizens differently from non-citizen UK residents, when making representations on their behalf over incarceration in Guantanamo Bay. This case showed it was legitimate to treat citizens and non-citizens differently.
The ruling states “a person who is not a British citizen is not entitled to protection.” British citizenship was simply a fact of law, and nothing to do with the person’s characteristics. “That is the correct prism through which to look at this case.”
You will perhaps permit me to point out that I predicted, before the US assurances were given, precisely and correctly what the US arguments would be, including this one: that it is legitimate to treat citizens differently from other nationals in terms of consular protection (which entirely routine legal concept is the only thing the Guantanamo Bay case quoted by Lewis effectively says).
Lewis continued that Assange would not face discrimination because of his Australian nationality; he would rather be treated differently as a non-US citizen. At issue was the “simple legal fact” of his non-US citizenship.
Lewis said the claim of discrimination only works here on fair trial issues and the assurance addresses fair trial issues. Assange is guaranteed a fair trial.
While the court has suggested that the First Amendment should apply because it provides Assange the kind of Article X ECHR protection to which Assange would be entitled, it must be noted that Article X only covers “reasonable and responsible” journalism. This is not what Assange did.
One factor that may define “reasonable and responsible” might be where the journalism took place. Assange had chosen to publish outside the relevant jurisdiction of the source of the material. That was not responsible. There were many other factors, not just nationality, which would decide whether the First Amendment applies. That includes national security of the United States. Assange was guaranteed a fair trial on all these points:
“He will be able to rely on the First Amendment but that does not mean he will succeed. As a plain matter of law, Assange is a foreigner in a foreign country carrying out acts that affect US national security.”
There were also 18 charges, covering different categories of offence. Some of the charges, such as hacking and conspiracy to steal documents, could never get First Amendment protection. That had been clearly shown in the Chelsea Manning judgment. Assange’s conduct was not protected by the First Amendment.
Mark Summers was then given his promised right to reply for the defence. He said that the notion that there was legitimate discrimination based on the characteristic of nationality was not applicable here. This was about a trial process.
None of the cases quoted by the prosecution relates to the trial process. Section 81b forbids discrimination by nationality in the trial process. That in other situations citizenship had legal effect was not relevant.
As regards the distinction being made between nationality and citizenship, it was worth noting that prosecutor Kromberg states that Assange may be excluded from First Amendment protection on the basis of nationality, and not of citizenship.
The argument that nationality is only one factor which might exclude the First Amendment fails. Lewis had stated that Assange may be excluded from the First Amendment because he is “a foreigner carrying out acts on foreign soil.” That is discrimination by nationality. If he were a US national he would not be excluded. The other factors become irrelevant.
The ability to rely on and argue from the First Amendment is not the same thing as to say this argument must ultimately succeed.
The finding against Chelsea Manning was not relevant. Manning was in a different position. He was a government employee, a whistleblower and not a journalist. The position in relation to the First Amendment was entirely different.
The argument that the First Amendment would automatically apply if Assange were on US soil is simply wrong. Several precedent cases showed this.
Summers then handed over to Edward Fitzgerald again. At this point. James Lewis rose to object. He said he had not objected to Mark Summers replying, although this was not the originally agreed procedure. But to have two people replying seemed excessive.
Judge Sharp responded with great seriousness. “Given what is at stake here,” she said, she would hear anything anybody wanted to say. If he wished, Lewis could respond again after Fitzgerald.
That “given what is at stake here” was very striking. It was the first real acknowledgement of the major issues at stake in this case, and perhaps also of the devastating consequences for Julian personally, from the judiciary in over a decade of proceedings. It did feel like something had changed.
Edward Fitzgerald then got going. The most important point, he said, was the deafening silence from Kromberg. He could have given the assurance that the prosecution would not seek to argue that Julian should be debarred from First Amendment protection by his nationality. But he had not done so.
It was perfectly normal practice for diplomatic assurances to include commitments for the prosecution to pursue or not pursue a certain course of action. In this very case they had assured the prosecution would not seek to pursue charges which might bring the death penalty. Yet Kromberg had not given any assurance he would not pursue the barring of the First Amendment, which he had on the contrary given an affidavit saying he might indeed pursue.
The assurance given was no assurance at all. Lewis had said that Assange would be able to rely on the First Amendment; but that was not what the “assurance” said. It said rather that he could seek to rely on the First Amendment, which was not the same thing at all.
Extradition could not be granted because there were too many issues of prosecutorial behaviour unresolved as well as issues of law.
The arguments were now at a close after just ninety minutes. Judge Sharp rose and said she and Judge Johnson would return in ten minutes to explain what would happen next.
In the end it took twenty minutes. When she returned, Judge Sharp had on her most solemn face. She started off by saying that everybody should listen to their decision in silence, and if anybody thought they could not do that, they should leave the court now.
I have to confess, I worried. If they now ruled against Julian, extradition could be immediate. He could literally be whisked straight to a military airfield. Was Judge Sharp expecting protest?
Very quickly the fears were allayed. Sharp stated simply that the right to appeal had been granted on grounds 4 and 5 of the applications—i.e. Freedom of Speech and Discrimination by Nationality. She also stated explicitly that the right to appeal applied to every count of the indictment, thus rejecting Lewis’s argument that some of the charges could not attract a freedom of speech defence.
The parties were given until 24 May to submit a joint memorandum on procedure and timetabling for the appeal hearing.
It is very important to understand that all of the other issues have fallen away and cannot be reintroduced. We are now down to the one narrow point on freedom of speech and discrimination by nationality. But I do not see how the United States escapes from this corner.
At the substantive appeal hearing, the issue, the arguments and the case law will all be exactly the same as at this preliminary hearing. The only difference will be the burden of proof. Here the defence only had to show there was an arguable case of discrimination. At the substantive hearing they will have to prove it is a winning argument.
But given the performances here and the fact the judges took only several minutes—when everyone was expecting at least several days—to reject the US prosecution arguments, I do not see how the USA can now win this.
We do not know when the substantive hearing will be. My bet would be October, though the legal team thought July possible. Of course Julian remains in a terrible maximum security prison. But freedom comes closer.
A cynic may see all this as a further kick into the long grass and spinning out of the process until beyond the US Presidential election, as Biden would be very ill-advised to bring Julian in chains to Washington for the campaign. But my feel for it was not that. I do believe this was a genuine win, and we are on the way to victory and freedom before Christmas.
It is unlikely, though not impossible, that the judges who granted the appeal will hear the appeal, so I fear that is the last we shall see of Dame Victoria Sharp. The frankly hideous Tory Lord Chief Justice Burnett has retired, so I expect the appeal will be heard by Lady Chief Justice Sue Carr, who has no previous involvement with the case.
It is a notable fact that so far female judges have shown themselves much less biddable by security service interests than male judges in this long saga. It appears that the judiciary have again found a way towards barring the extradition that does not involve any judgment on the public interest of revealing war crimes or any discussion of the issues in material revealed by Wikileaks most embarrassing to the United States.