DAZE IN COURT
Rick Morton on Julian Assange’s extradition
Labor MP Julian Hill was addressing parliament on Wednesday about
Julian Assange’s legal fight against his extradition to the United States – an act Hill labelled as persecution for “exposing war crimes and the misuse of state power” – when the lights went out.
“He’s been persecuted to silence him forever in his WikiLeaks project and to scare others into silence,” Hill said as the house of representatives was briefly plunged into darkness.
“We’ve had a power failure…” he said, adding, in jest, “They’re silencing me! They’ve hacked the parliament!”
It seemed fitting for a case already filled with bizarre and at times disturbing twists. In the days preceding Hill’s speech, intense media scrutiny on Assange had revealed that US President Donald Trump had allegedly, through a Republican senator intermediary, offered the WikiLeaks founder a pardon in return for his testimony that Russia was not involved in leaking Democratic Party emails ahead of the 2016 election. Then the ABC reported an astonishing and brazen bugging operation at the Ecuadorian embassy in London, which may have been ordered or accessed by US officials.
It is alleged a Spanish security firm, UC Global, was tasked with installing this surveillance equipment in the embassy. Caught up in its own legal battle, UC Global has tendered emails, recordings and schematics of the Ecuadorian embassy as evidence in a Spanish court.
They showed that legally privileged conversations between Assange and his Australian lawyers – first Geoffrey Robertson, QC, and later Jennifer Robinson – were recorded and accessed by people with IP addresses in both Ecuador and the US.
By contrast, the lights switching off during an Australian MP’s speech was only a minor oddity, though it did offer a chance for metaphor: a literal power failure as Hill lashed the government for its failure to exert power over US attempts to extradite and prosecute an Australian citizen.
“It doesn’t matter whether you agree with him, it doesn’t matter whether you disagree with him,” Hill said.
“It doesn’t matter whether you like him, it doesn’t matter whether you dislike him. He’s an Australian, and he is entitled to the protection of the government. Of course, if the death penalty or torture are not enough to spur this government to action, there are broader important principles at stake.”
This is the argument upon which Assange’s extradition case relies – that he is being hunted by the world’s top power for blowing the whistle on potential war crimes, while his newspaper collaborators at organisations such as The New York Times, The Guardian and Der Spiegel rightly face no such action.
WikiLeaks’ work was journalism, Assange’s defence argued as the hearings began on Monday.
James Lewis, QC, for the US government, said the 18 charges relating to Defense Department documents obtained by former analyst Chelsea Manning, allegedly with the help of Assange, presented a “straightforward” criminal case.
One of the complicating factors for Assange is a relatively recent change to British law, which removed the “political crime” defence with respect to extradition treaties in 2003. Although this defence is still expressly included in the extradition treaty between the US and Britain, there is no such domestic protection.
On Wednesday, Woolwich Crown Court judge Vanessa Baraitser countered the argument from Assange’s barrister Edward Fitzgerald, QC, that this defence should apply as a principle of international law.
“Is it not true that this court’s job is to implement English domestic law, not international law?” she asked.
Assange’s lawyer noted various legal instruments, including the Magna Carta and the European Convention on Human Rights, to which the judge questioned whether the “clear intent” of the parliament in 2003 in removing the political defence from law was to “trump the Magna Carta”.
US counsel James Lewis told the court the defence was “trying to create a right through the back door”.
Independent MP Andrew Wilkie and Liberal National Party MP
George Christensen, co-convenors of a parliamentary group in support of Assange, visited the Australian at Belmarsh prison earlier this month, where he is being kept after his bail was denied.
“Assange’s team look like they will lean quite heavily on that defence [treaties versus UK law] and I hope it is successful,” Wilkie tells The Saturday Paper. “But it seems to be a subjective argument and will be a real test of the fairness of the court.”
It is a concern shared by rogue Nationals MP and former deputy prime minister Barnaby Joyce, who is also a member of the parliamentary support group. Joyce said on his podcast Weatherboard and Iron on Wednesday that the situation is “ludicrous”, adding, “We are going to be blind to sending [a] person to a third country to go to jail for 175 years for something that isn’t a crime in Australia.”
As the proceedings stretched on through the week, Julian Assange became frustrated and tired. By Wednesday, he was seen frequently closing his eyes and was trying to follow the proceedings over the noise of his supporters outside the court.
Assange had also started on new medication, his lawyers said, which made him drowsier than usual. He was seated in the dock, behind glass, which made it difficult for him to confer with his counsel. He was flanked by two security guards, a microphone sitting above him.
On Wednesday, Assange’s lawyers approached the dock to speak to their client and he stood to address the court.
“I’m as much a participant in the court as a spectator at Wimbledon,” Assange said.
“I can’t speak to my lawyers or instruct them. I can’t convey instructions to them confidentially. This case already has enough spying on my lawyers as it is.”
Assange was seemingly referencing the bugging of the Ecuadorian embassy, where he sought asylum in 2012 after failing in a bid to halt his extradition to Sweden on charges of rape. Last year, the last of those charges was dropped because so much time had elapsed, and Swedish prosecutors said it was no longer possible to bring them to court. Assange had argued the case was a front to get him to the US.
In the embassy, as revealed by the ABC, security contractors had fitted listening devices and audio-enabled CCTV in most rooms, including in the base of a fire extinguisher and in the women’s bathrooms – where Assange also had confidential discussions with his lawyers.
WikiLeaks’ Spanish lawyer, Aitor Martinez, told the ABC that discussions between Assange and Ecuador’s head of intelligence services about his leaving the embassy in a matter of days must have been relayed almost immediately to the US.
Just hours after the meeting, the US ambassador to Ecuador raised the issue with Ecuador and, before Assange’s exit, the US issued an international arrest warrant for him.
In Woolwich Crown Court, the US counsel alleged a number of sources exposed by WikiLeaks in its 2011 data dump went dark and have never been heard from again. They blame Assange directly for endangering the lives of informants, as well as the lives of US personnel serving in theatres of war or conflict overseas.
“The US is aware of sources, whose redacted names and other identifying information was contained in classified documents published by WikiLeaks, who subsequently disappeared, although the US can’t prove at this point that their disappearance was the result of being outed by WikiLeaks,” James Lewis said.
It is the US government’s view that Assange not only received the stolen documents from Chelsea Manning but also conspired with her to crack the password on thousands of classified military and diplomatic cables. Assange’s team denies this, saying Manning had access to the documents well before they were handed over to WikiLeaks.
“These are ordinary criminal charges and any person, journalist or source who hacks or attempts to gain unauthorised access to a secure system, or aids and abets others to do so, is guilty of computer misuse,” Lewis said.
“Reporting or journalism is not an excuse for criminal activities or a licence to break ordinary criminal laws.”
One of Assange’s legal team, Mark Summers, QC, argued the WikiLeaks founder worked with the US State Department and newspaper publishers to redact the names of people who might be harmed if their identities were revealed in the files.
But in August 2011, the German newspaper Der Freitag published a story saying it had discovered the password to a server containing the complete trove of files, none of which had been redacted.
This password had in fact first been published in February 2011 by Guardian reporters David Leigh and Luke Harding in their book WikiLeaks: Inside Julian Assange’s War on Secrecy.
Assange’s team this week blamed those journalists for the leak, but a Guardian spokesman told the BBC that its team never disclosed the location of the files. Harding and Leigh were also assured the password they had was temporary and would expire within “a matter of hours”, according to the Guardian spokesman. Assange said it wasn’t until months later he realised the password could be used to access the full database, when details of such were printed by Der Freitag.
Summers told the court that Assange and WikiLeaks editor Sarah Harrison phoned then US secretary of state Hillary Clinton’s emergency hotline to warn of the immediate danger the discovery would pose for informants and dissidents who had worked for the US.
“I don’t understand why you’re not seeing the urgency of this. Unless we do something, then people’s lives are put at risk,” Assange said, according to Summers.
He was allegedly told by the State Department to “call back in a few hours”.
After this week, the extradition proceedings will take a break until mid-May. Lawyers for Assange have said he has battled clinical depression for years and would be a suicide risk if he were removed to US soil for a crime, they say, he did not commit. Even if it were true, his lawyers argue, it did not happen within US jurisdiction.
Assange’s conditions at Belmarsh prison, on the outskirts of London, are difficult. On day two of the trial, Edward Fitzgerald told Judge Baraitser that his client had been strip-searched twice, handcuffed 11 times and moved between five separate holding cells. He had his court documents – which included communication with his lawyers – removed at the end of the first day.
Assange’s battle is psychological as much as it is legal. An outcome is still months away.
“You get glimpses of a broken man,” Wilkie says of his meeting with Assange.
“He’s a bit of a mess. He was trying to put on a brave face but there were times when his mind would wander and he would close his eyes. How he will survive another few years in Belmarsh prison, assuming whoever loses this will appeal, is anybody’s guess.”