On February 20, it was clear that things were not going to be made easy for WikiLeaks founder Julian Assange.
He was too ill to attend what may well be the final appeal against his extradition from Britain to the United States. Were he to be sent to the US, he faces a possible sentence of 175 years, arising from 18 venally cobbled charges, 17 spliced from the Espionage Act of 1917.
The appeal to the High Court, comprising Justice Jeremy Johnson and Dame Victoria Sharp, challenges the extradition order by the Home Secretary and the of District Judge Vanessa Baraitser. The latter, despite ordering his release on risks posed to him on mental health grounds, fundamentally agreed with the prosecution.
Assange was not a true journalist, Baraitser scorned. (Absurdly, it would seem for the judge, journalists never publish leaked information.) He had exposed the identities of informants. He had engaged in attempts to hack computer systems. Last June, High Court justice Jonathan Swift thought it inappropriate to rehear the substantive arguments of the trial case made by defence.
Assange鈥檚 attorneys had informed the court that he simply could not attend in person, though it would hardly have mattered.
His absence from the courtroom was decorous in its own way; he could avoid being displayed like a caged specimen. The proceedings would be conducted in the manner of appropriate pantomime, with dress and procedure to boot.
Unfortunately, the two judges were seemingly ill versed in the field they were adjudicating. Their ignorance was telling on, for instance, the views of Mark Pompeo, whose bilious reaction to WikiLeaks when director of the Central Intelligence Agency involved rejecting the protections of the First Amendment of the US Constitution to non-US citizens. (That view is also held by the US prosecutors.)
Such a perspective, argued Assange鈥檚 legal team, was a clear violation of Article 10 of the 听(贰颁贬搁).
They were also surprised to be informed that further charges could be added to the indictment on his arrival to the US, including those carrying the death penalty.
Other surprises were in store:聽the fact that rules of admissibility might be altered to consider material illegally obtained, for instance, through surveillance; and that Assange might also be sentenced for an offence he was never actually tried for.
Examples of espionage case law were submitted as precedents to buttress the defence, with Edward Fitzgerald KC calling espionage a 鈥減ure political offence鈥 which barred extradition in treaties Britain had signed with 158 nation states.
David Shayler, who had been employed by the British domestic intelligence service MI5, he was prosecuted for passing classified documents to The Mail on Sunday in 1997, under the Official Secrets Act.
These included the names of various agents, that the agency kept dossiers on various British politicians, including Labour ministers, and that the British foreign intelligence service, MI6, had conceived of a plan to assassinate Libya鈥檚 Colonel Muammar Gaddafi.
When Britain made its extradition request to the French authorities, they received a clear answer from the Cour d鈥橝ppel: the offence charged was found to be political in nature.
Mark Summers KC also the point that the 鈥減rosecution was motivated to punish and inhibit the exposure of American state-level crimes鈥, ample evidence of which was adduced during the extradition trial, yet ignored by both Baraitser and Swift.
Baraitser brazenly ignored evidence of discussions by US intelligence officials about a plot to kill, or abduct, Assange.
For Summers, chronology was telling: the initial absence of any prosecution effort by the Barrack Obama administration, despite empanelling a grand jury to investigate WikiLeaks; the International Criminal Court鈥檚 announcement that it would be investigating potential crimes committed by US combatants in Afghanistan in 2016, thereby lending gravity to Assange鈥檚 disclosures; and the desire to kill or seek the publisher鈥檚 extradition after the release of the Vault 7 files detailing various espionage tools of the CIA.
With Pompeo鈥檚 that WikiLeaks was a hostile, non-state intelligence service, the avenue was open for a covert targeting of Assange in the Ecuadorian Embassy in London. The duly hatched rendition plan led to the prosecution, which proved 鈥渟elective鈥 in avoiding, for instance, the targeting of newspaper outlets such as Freitag, or the website Cryptome.
In Summer鈥檚 : 鈥淭his is not a government acting on good faith pursuing a legal path.鈥
When it came to discussing the leaks, the judges revealed an obliviousness about what Assange and WikiLeaks had actually done in releasing the US State Department cables.
For one thing, the old nonsense that the unredacted, or poorly redacted material, had resulted in damage was skirted over, not to mention the fact that Assange had himself insisted on a firm redaction policy.
No inquiry has ever shown proof that harm came to any US informant, a central contention of the US Department of Justice.
Nor was it evident to the judges that the publication of the cables had first taken place in Cryptome, once it was discovered that reporters from The Guardian had injudiciously revealed the password to the unredacted files in their publication.
Two other points also emerged in the defence submission: the whistleblower angle and that of foreseeability.
Consider, Summers argued hypothetically, the situation where Chelsea Manning, whose invaluable disclosures WikiLeaks published, had been considered by the European Court of Human Rights. The European Union鈥檚 whistleblower regime, Summers contended, would have considered the effect of harm done by violating an undertaking of confidentiality with the exposure of abuses of state power.
Manning would have likely escaped conviction, while Assange, having not even signed any confidentiality agreements, would have had even better prospects for acquittal.
The issue of foreseeability, outlined in Article 7 of the ECHR, arose because Assange, his team contends, could not have known that publishing the cables would have triggered a lawsuit under the Espionage Act.
That said, a grand jury the Chicago Times in 1942 for publishing an article citing US naval knowledge of Japanese plans to attack Midway Island.
Then came the Pentagon Papers case in 1971. While Summers correctly noted that: 鈥淭he New York Times was never prosecuted鈥 this was not for want for trying: a grand jury was empanelled with the purpose of indicting the Times reporter Neil Sheehan for his role in receiving classified government material.
Once revelations of government tapping of whistleblower Daniel Ellsberg was revealed, the case collapsed.
All that said, Article 7 could provide a further ground for barring extradition.
February 21 gave lawyers for the US the chance to reiterate the various, deeply-flawed assertions about Assange鈥檚 publication activities connected with Cablegate (the 鈥渆xposing informants鈥 argument), his supposedly non-journalistic activities and the integrity of diplomatic assurances about his welfare were he to be extradited.
The stage for the obscene was duly set.
[Binoy Kampmark currently lectures at RMIT University.]