WikiLeaks founder Julian Assange cannot legally be handed to the US for ‘political offences’ because of a 2003 extradition treaty, his lawyers have claimed.
The 48-year-old is wanted in the US for allegedly conspiring with army intelligence analyst Chelsea Manning to expose military secrets between January and May 2010.
A US grand jury has indicted Assange on 18 charges – 17 of which fall under the Espionage Act – including conspiracy to receive, obtain and disclose classified diplomatic and military documents.
The Trump administration argues Britain’s Official Secrets Act removed the ‘public interest’ defence when it came to revealing security matters.
But Edward Fitzgerald QC, representing the Australian, said extraditions for political offences is not allowed until the Anglo-US Extraditions Treaty set up 17 years ago.
Julian Assange, sketched in the dock at Woolwich on Monday yesterday, should not be extradited because it would breach the 2003 Anglo-US Extraditions Treaty, his legal team says
‘We say, firstly, Article 4.1 prohibits extradition for political offences in accordance to long established processes’, he said.
What is Julian Assange charged with in the US?
The US Department of Justice has charged Wikileaks founder Julian Assange with 18 crimes – 17 under the Espionage Act and one under computer hacking legislation.
Officials say Assange, as founder of WikiLeaks, endangered US informants in Iran, Syria, China, Iraq and Afghanistan by publishing unredacted documents that identified them.
The 18 charges against Assange, filed in Virginia last year, are:
Count 1: Conspiracy to receive national defense information
Counts 2-4: Obtaining National Defense Information
Counts 5-8: Obtaining National Defense Information
Counts 9-11: Disclosure of National Defense Information
Counts 12-14: Disclosure of National Defense Information
Counts 15-17: Disclosure of National Defense Information
Count 18: Conspiracy to Commit Computer Intrusion (Hacking)
‘Secondly, that treaty is the basis for this extradition request of international law,’ said Mr Fitzgerald.
‘The offences with which Mr Assange is charged, and for which his extradition is sought, are, on the face of the extradition request itself, political offences.’
The court was told that Assange is currently on medication and may require short breaks.
International law provides protection from being extradited for political offences, said Mr Fitzgerald.
The court needed to consider, argued Mr Fitzgerald, various protections enshrined in both international law the European Convention of Human Rights
‘If you detained, and Mr Assange is detained, in pursuance of an extradition request that engaged article 5 of the European Convention,’ said Mr Fitzgerald,
‘If you are detained you must be detained in a manner prescribed by law that is not arbitrary.’
Along with the article protecting from unlawful detention, the defence invoked the common law right of due process, present in the Magna Carta.
Mr Fitzgerald asked the court to a adopt ‘a more profound approach’ when considering these protection.
‘[We must say] what are we doing?
‘We are involved in an extradition process that involves a treaty.
‘Without a treaty the process would be wholly unlawfully,’ said Mr Fitzgerald.
He added that the very treaty on which Assange extradition relies provides an exception for the very kind of political offences for which he is charged.
But District Judge Vanessa Baraitser him that the court relied on UK law, and Parliament removed the political defence provision in 2003.
Dozens of his supporters gathered outside Woolwich Crown Court chanting ‘free Julian Assange’ for the third day in a row
Mr Fitzgerald replied that the version of the treaty signed by the UK government in 2007 still contains that provision.
‘There is nothing in the 2003 [Extradition] Act to prohibit reliance upon the express provisions of the treaty protecting against extradition for political offences.
‘And it is significant that this treaty was ratified after the 2003 act came into force,’ said Mr Fitzgerald.
‘There is nothing in the 2003 act to exclude reliance on the abuse of process protection invoked here where extradition would be in direct conflict with the express provisions of the treaty that forms the whole bedrock of the extradition request.’
The protection against being extradited for political offences, argued Mr Fitzgerald, is extensively applied.
‘It is a prominent and important feature in US extradition treaties including all the US treaties with western democracies,’ said Mr Fitzgerald.
The US signed political offence exceptions in their treaties because they don’t want their citizens deported, but when wanted someone extradited, it ‘suddenly doesn’t matter’, the court heart.
Wikileaks Editor-in-chief Kristinn Hrafnsson (left) arrives at Woolwich Crown Court for the third day of Julian Assange’s extradition hearing
There is a ‘lack of symmetry’ in the way the rules apply in the US and the UK, the court heard.
‘In short, the process which applies on one side of the Atlantic doesn’t apply on the other one,’ said Mr Fitzgerald.
The espionage allegations against Assuage were, by their very nature, a political offence.
The judge asked James Lewis QC, for the US Government: ‘Do you dispute it is a political offence?’
Mr Lewis replied: ‘We do not accept it is deals with a pure political offence. It is a relative political offence.’
Assange was charged following an FBI investigation on a ‘conspiracy to commit computer hacking as well as unlawfully obtaining and disclosing classified information, endangering human sources’.
The court has heard Assange had a ‘thermonuclear option’ he intended to use if it looked as though he was in danger of being arrested or WikiLeaks shut down.
In 2010, he released more than 250,000 unredacted State Department diplomatic cables.
The indictment said these ‘included names of persons throughout the world who provided information to the US government in circumstances in which they could reasonably expect that their identities would be kept confidential.
‘These sources included journalists, religious leaders, human rights advocates and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government and the political conditions within their own countries at great risk to their own safety..’
Mr Fitzgerald told the court that legal authorities state crimes committed ‘seeking to change government’ policy qualify as political offences.
‘On the government’s own case, this is about policy – policy in Guantanamo, policy in the Iraq war, policy in the Afghanistan war and an attempt to change that policy, to reveal what was really going on and the loss of life and war crimes,’ he said.
Mr Lewis called the defence’s claim that Assange was entitled to protection under the terms of the Extradition treaty ‘a bold claim’.
‘[The treaty is] not incorporated into domestic law.
‘Only once it has been incorporated can individuals claim rights and protections,’ said Mr Lewis.
‘Parliament has abrogated the political offence exception to extradition when passing the Extradition Act in 2003.’
Assange has ‘no right’ to argue for a political offence exception after that provision has been removed from parliament, said Mr Lewis.
Given that Assange has ‘no rights derived from the treaty’, argued Mr Lewis, there was no abuse of process’ issues.
Mr Lewis added that they disputed that the offences Assange is charged with are political offences.
‘If the court was entitled to, and we say it is not, to afford a right to Mr Assange from the treaty, the first thing would for this court to consider what a political offence under the United Kingdom and United States treaty meant,’ he added.
The court heard that the UK and the US had slightly different definitions of what constitutes a political offence than some of the authorities Assange’s barrister cited.
‘In this side of the Atlantic, the only standard that this court could use is that set out in English authorities, all of which do not support his argument that the conduct with which Mr Assange is accused of falls under political offences,’ said Mr Lewis.
The proceedings were interrupted when Assange abruptly stood up in the dock while waving his arms around.
When asked if he was okay to continue, he protested being unable to speak to his defence, adding he couldn’t in confidence as he was flanked by guards.
‘This case already has enough spying on my lawyer as it is,’ he continued.
‘I have very little contact with my lawyers.’
‘Generally speaking, defendants have no voice unless and until they decide to give evidence,’ said judge Baraitser.
‘There is no reason to make an exception in your case I am afraid.’
The judge proceeded to rise for five minutes to give Assange the opportunity to talk to his legal team.
When the short adjournment ended, Mr Fitzgerald told that Assange was finding it ‘difficult’ and ‘unfair’ that he wasn’t able to communicate with his lawyers during the proceedings.
Judge Baraitser asked: ‘Is this different from any other criminal or extradition proceedings, the position that Mr Assange is currently in?’
Mr Fitzgerald replied that this was exasperated by his client’s medical condition.
The judge said: ‘Do you think that is a matter I can adjudicate in court given that is a security issue?’
She added the only thing in her power in this case would be to hear a bail application.
Mr Lewis intervened to say that he didn’t believe that allowing Assange to sit with the defence team required him being bailed out.
‘How do you think we would remain in custody while fully in the well of the court?
‘He wouldn’t be in the dock,’ said judge Baraitser.
Mr Lewis said: ‘If there were security officers either side of him he would be in custody.’
In certain cases heart at the High Court, certain defendants in custody had been allowed to sit outside the court, said Mr Lewis.
‘That is generally speaking when there has not been an ability in the High Court to have a dock,’ he added.
Mr Lewis said he was ‘neutral’ on the issue of Assange sitting with his legal team but that he would oppose any bail application.
Mr Fitzgerald said: ‘We respectfully submit this is a gentleman of an intellectual nature and there is no reason why he should not be able to sit with us during the hearing.’
Judge Baraitser told both parties that she would be able to hear a bail application on this matter tomorrow.
Mr Lewis acknowledged the defences point that there was a ‘lack of reciprocity’ and ‘imbalance’ in the extradition treaty.
While the treaty was in fact law in the States, Mr Lewis said there was no equivalency in UK law.
‘There is no such thing as a political offence in ordinary domestic law.
‘It only arises on the international plane and in the context of extradition,’ he added.
‘It cannot ever be said we couldn’t prosecute members of the IRA for sedition.’
The defence lawyers are trying to create a right for Assange ‘through the back door,’ added Mr Lewis.
The abuse of process argument raised by Assange’s defence only applies in cases where there is prejudice caused by the prosecution, the court heard.
‘That is not the cause in the extradition request,’ added Mr Lewis.
Manning was imprisoned from 2010 until 2017 when her sentence was commuted, but she is currently in jail for her continued refusal to testify before a grand jury against Assange.
Assange went into hiding in the Ecuadorian embassy in London in 2012 to avoid extradition to Sweden for sexual offence allegations which he has always denied.
He was jailed for 50 weeks last April after breaching his bail conditions when the asylum period granted to him expired.
In November Swedish authorities dropped the rape allegations made in 2010.
The hearing continues.