ASSANGE EXTRADITION: Your Man in Public Gallery – Day No. 4

Craig Murray compares Thursday’s proceedings — during which the judge harassed Fitzgerald just as the defense had the prosecution on the ropes — to a Stalin show trial.

By Craig Murray

Please try this experiment for me.
Try asking this question out loud, in a tone of intellectual interest and engagement: “Are you suggesting that the two have the same effect?.”

Now try asking this question out loud, in a tone of hostility and incredulity bordering on sarcasm: “Are you suggesting that the two have the same effect?”

Firstly, congratulations on your acting skills, you take direction very well. Secondly, is it not fascinating how precisely the same words can convey the opposite meaning dependent on modulation of stress, pitch, and volume?

Yesterday the prosecution continued its argument that the provision in the 2007 U.K.-U.S. Extradition Treaty that bars extradition for political offences is a dead letter, and that Julian Assange’s objectives are not political in any event. James Lewis QC for the prosecution spoke for about an hour, and Edward Fitzgerald QC replied for the defense for about the same time. During Lewis’ presentation, he was interrupted by Judge  Vanessa Baraitser precisely once. During Fitzgerald’s reply, Baraitser interjected 17 times.

In the transcript, those interruptions will not look unreasonable:

“Could you clarify that for me Mr. Fitzgerald…”
“So how do you cope with Mr. Lewis’ point that…”
“But surely that’s a circular argument…”
“But it’s not incorporated, is it?…”

All these and the other dozen interruptions were designed to appear to show the judge attempting to clarify the defense’s argument in a spirit of intellectual testing. But if you heard the tone of Baraitser’s voice, saw her body language and facial expressions, it was anything but.

The false picture a transcript might give is exacerbated by the courtly Fitzgerald’s continually replying to each obvious harassment with “Thank you Madam, that is very helpful,” which again if you were there, plainly meant the opposite. But what a transcript will helpfully nevertheless show was the bully pulpit of Baraitser’s tactic in interrupting Fitzgerald again and again and again, belittling his points and very deliberately indeed preventing him from getting into the flow of his argument. The contrast in every way with her treatment of Lewis could not be more pronounced.

So now to report the legal arguments themselves.

Woolwich Crown Court. (Joe Lauria)

Lewis for the Prosecution

James Lewis for the prosecution, continuing his arguments from the day before, said that Parliament had not included a bar on extradition for political offenses in the 2003 Act. It could therefore not be reintroduced into law by a treaty. “To introduce a political offenses bar by the back door would be to subvert the intention of Parliament.”

Lewis also argued that these were not political offenses. The definition of a political offense was in the U.K. limited to behavior intended “to overturn or change a government or induce it to change its policy.” Furthermore the aim must be to change government or policy in the short term, not the indeterminate future.

Lewis further stated that the term “political offense” could only be applied to offenses committed within the territory where it was attempted to make the change. So, to be classified as political offences, Assange would have had to commit them within the territory of the USA, but he did not.

If Baraitser did decide the bar on political offenses applied, the court would have to determine the meaning of “political offense” in the U.K.-U.S. extradition treaty and construe the meaning of paragraphs 4.1 and 4.2 of the treaty. To construe the terms of an international treaty was beyond the powers of the court.

Lewis perorated that the conduct of Julian Assange cannot possibly be classified as a political offence. “It is impossible to place Julian Assange in the position of a political refugee.” The activity in which WikiLeakswas engaged was not in its proper meaning political opposition to the U.S. administration or an attempt to overthrow that administration. Therefore, the offense was not political.

Fitzgerald for the Defense

For the defense Edward Fitzgerald replied that the 2003 Extradition Act was an enabling act under which treaties could operate. Parliament had been concerned to remove any threat of abuse of the political offense bar to cover terrorist acts of violence against innocent civilians. But there remained a clear protection, accepted worldwide, for peaceful political dissent. This was reflected in the extradition treaty on the basis of which the court was acting.

Baraitser interrupted that the U.K.-U.S. Extradition Treaty was not incorporated into English law.

Fitzgerald replied that the entire extradition request is on the basis of the treaty. It is an abuse of process for the authorities to rely on the treaty for the application but then to claim that its provisions do not apply:

“On the face of it, it is a very bizarre argument that a treaty which gives rise to the extradition, on which the extradition is founded, can be disregarded in its provisions. It is on the face of it absurd.”

U.S. embassy in London. (Loco Steve, Flickr)

Fitzgerald added that English courts construe treaties all the time. He gave examples.

Fitzgerald went on that the defense did not accept that treason, espionage and sedition were not regarded as political offences in England. But even if one did accept Lewis’s too-narrow definition of political offense, Assange’s behavior still met the test. What on earth could be the motive of publishing evidence of government war crimes and corruption, other than to change the policy of the government? Indeed, the evidence would prove that WikiLeaks had effectively changed the policy of the U.S. government, particularly on Iraq.

Baraitser interjected that to expose government wrongdoing was not the same thing as to try to change government policy. Fitzgerald asked her, finally in some exasperation after umpteen interruptions, what other point could there be in exposing government wrongdoing other than to induce a change in government policy?

That concluded opening arguments for the prosecution and defense.

My Personal Commentary

Let me put this as neutrally as possible. If you could fairly state that Lewis’ argument was much more logical, rational and intuitive than Fitzgerald’s, you could understand why Lewis did not need an interruption while Fitzgerald had to be continually interrupted for “clarification.”

But in fact, it was Lewis who was making out the case that the provisions of the very treaty under which the extradition is being made, do not in fact apply. Baraitser’s comparative harassment of Fitzgerald when he had the prosecution on the ropes was straight out of the Stalin show trial playbook.

The defense did not mention it, and I do not know if it features in their written arguments, but I thought Lewis’ point that these could not be political offences, because Julian Assange was not in the USA when he committed them, was breathtakingly dishonest. The USA claims universal jurisdiction. Assange is being charged with crimes of publishing committed while he was outside the USA. The USA claims the right to charge anyone of any nationality, anywhere in the world, who harms U.S. interests. They also in addition here claim that as the materials could be seen on the internet in the USA, there was an offence in the USA. At the same time to claim this could not be a political offense as the crime was committed outside the USA is, as Edward Fitzgerald might say, is on the face of it absurd. Which curiously Baraitser did not pick up on.

Lewis’ argument that the treaty does not have any standing in English law is not something he just made up. Nigel Farage did not materialize from nowhere. There is in truth a long tradition in English law that even a treaty signed and ratified with some bloody Johnny Foreigner country, can in no way bind an English court. Lewis could and did spout reams and reams of judgements from old beetroot faced judges holding forth to say exactly that in the House of Lords, before going off to shoot grouse and spank the footman’s son. Lewis was especially fond of the Tin Council case.

There is of course a contrary and more enlightened tradition, and a number of judgements that say the exact opposite, mostly more recent. This is why there was so much repetitive argument as each side piled up more and more volumes of “authorities” on their side of the case.

The difficulty for Lewis – and for Baraitser – is that this case is not analagous to me buying a Mars Bar and then going to court because an international treaty on Mars Bars says mine is too small.

Rather the 2003 Extradition Act is an enabling act on which extradition treaties then depend. You can’t thus extradite under the 2003 Act without the treaty. So, the Extradition Treaty of 2007 in a very real sense becomes an executive instrument legally required to authorize the extradition. For the executing authorities to breach the terms of the necessary executive instrument under which they are acting, simply has to be an abuse of process. So, the Extradition Treaty owing to its type and its necessity for legal action, is in fact incorporated in English law by the Extradition Act of 2003 on which it depends.

The Extradition Treaty is a necessary precondition of the extradition, whereas a Mars Bar Treaty is not a necessary precondition to buying the Mars Bar.

That is as plain as I can put it. I do hope that is comprehensible.

It is of course difficult for Lewis that on the same day London’s Court of Appeal was ruling against the construction of a third runway at Heathrow Airport, partly because of its incompatibility with the Paris Agreement of 2016, despite the latter not being fully incorporated into English law by the Climate Change Act of 2008.

Vital Personal Experience

The Foreign & Commonwealth Office main building in London. (FCO, Flickr)

It is intensely embarrassing for the Foreign and Commonwealth Office (FCO) when an English court repudiates the application of a treaty the U.K. has ratified with one or more foreign states. For that reason, in the modern world, very serious procedures and precautions have been put into place to make certain that this cannot happen. Therefore, the prosecution’s argument that all the provisions of the U.K.-U.S. Extradition Treaty of 2007 are not able to be implemented under the Extradition Act of 2003, ought to be impossible.

I need to explain I have myself negotiated and overseen the entry into force of treaties within the FCO. The last one in which I personally tied the ribbon and applied the sealing wax (literally) was the Anglo-Belgian Continental Shelf Treaty of 1991, but I was involved in negotiating others and the system I am going to describe was still in place when I left the FCO as an ambassador in 2005, and I believe is unchanged today (and remember the Extradition Act was 2003 and the U.S.-U.K. Extradition Treaty ratified 2007, so my knowledge is not outdated). Departmental nomenclatures change from time to time and so does structural organization. But the offices and functions I will describe remain, even if names may be different.

All international treaties have a two-stage process. First, they are signed to show the government agrees to the treaty. Then, after a delay, they are ratified. This second stage takes place when the government has enabled the legislation and other required agency to implement the treaty. This is the answer to Lewis’ observation about the roles of the executive and legislature. The ratification stage only takes place after any required legislative action. That is the whole point.

This is how it happens in the FCO. Officials negotiate the extradition treaty. It is signed for the U.K. The signed treaty then gets returned to FCO legal advisers, Nationality and Treaty Department, Consular Department, North American Department and others and is sent on to Treasury/Cabinet Office solicitors and to Home Office, Parliament and to any other government department whose area is impacted by the individual treaty.

The treaty is extensively vetted to check that it can be fully implemented in all the jurisdictions of the U.K. If it cannot, then amendments to the law have to be made so that it can. These amendments can be made by Act of Parliament or more generally by secondary legislation using powers conferred on the secretary of state by an act. If there is already an act of Parliament under which the treaty can be implemented, then no enabling legislation needs to be passed. International agreements are not all individually incorporated into English or Scottish laws by specific new legislation.

This is a very careful step-by-step process, carried out by lawyers and officials in the FCO, Treasury, Cabinet Office, Home Office, Parliament and elsewhere. Each will in parallel look at every clause of the treaty and check that it can be applied. All changes needed to give effect to the treaty then have to be made – amending legislation, and necessary administrative steps. Only when all hurdles have been cleared, including legislation, and Parliamentary officials, Treasury, Cabinet Office, Home Office and FCO all certify that the treaty is capable of having effect in the U.K., will the FCO legal advisers give the go ahead for the treaty to be ratified. You absolutely cannot ratify the treaty before FCO legal advisers have given this clearance.

This is a serious process. That is why the U.S.-U.K. Extradition Treaty was signed in 2003 and ratified in 2007. That is not an abnormal delay.

So, I know for certain that ALL the relevant British government legal departments MUST have agreed that Article 4.1 of the U.K.- U.S. Extradition Treaty was capable of being given effect under the 2003 Extradition Act. That certification has to have happened or the Treaty could never have been ratified.

It follows of necessity that the U.K. government, in seeking to argue now that Article 4.1 is incompatible with the 2003 Act, is knowingly lying. There could not be a more gross abuse of process.

Craig Murray is an author, broadcaster and human rights activist. He was British ambassador to Uzbekistan from August 2002 to October 2004 and rector of the University of Dundee from 2007 to 2010.

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11 comments for “ASSANGE EXTRADITION: Your Man in Public Gallery – Day No. 4

  1. March 1, 2020 at 05:41

    Where is the Australian Government? Where is the fair trial and justice? This will go down an another hideous historical event and a brave man who takes on the ‘system’ will die in custody. :( Shameful.

  2. Eugenie Basile
    February 29, 2020 at 05:25

    ‘….that the UK government is knowingly lying ‘ = nothing new and that is why we have elections.

    That the UK courts are willingly accepting those lies = undermining the rule of law and destroying the foundation of our democracy.

  3. jmg
    February 28, 2020 at 20:23

    Craig Murray wrote:
    > For the defence Edward Fitzgerald replied that the 2003 Extradition Act was an enabling act under which treaties could operate.

    Exactly, domestic law must be consistent with what is required by international treaties:

    “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
    — Vienna Convention on the Law of Treaties

    The Vienna Convention was ratified by the United Kingdom on 25 June 1971, and it’s in force. See:

    Vienna Convention on the Law of Treaties — Status of Treaties — United Nations

    Craig Murray wrote:
    > Fitzgerald added that English Courts construe treaties all the time. He gave examples.

    Yes, the Supreme Court and domestic courts usually have regard to the United Kingdom’s international obligations:

    “The Court . . . went on to explain: . . . ‘treaties between sovereign states . . . are binding on the United Kingdom in international law’ . . .
    “Courts are, or have become, quite accustomed to adjudicating on issues of international law, where an appropriate domestic threshold exists.”

    (International Law in the UK Supreme Court — King’s College, London — Lord Mance — 13 February 2017)

    Craig Murray wrote:
    > This is the answer to Lewis’s observation about the roles of the executive and legislature. The ratification stage only takes place after any required legislative action. That is the whole point. . . .
    > If there is already an Act of Parliament under which the Treaty can be implemented, then no enabling legislation needs to be passed. International Agreements are not all individually incorporated into English or Scottish laws by specific new legislation. . . .
    > So I know for certain that ALL the relevant British Government legal departments MUST have agreed that Article 4.1 of the UK/US Extradition Treaty was capable of being given effect under the 2003 Extradition Act. That certification has to have happened or the Treaty could never have been ratified.

    Completely right. As a Commons Briefing Paper explains on international treaties and the United Kingdom:

    “The UK Government is responsible for negotiating, signing and ratifying the 30 or so international treaties involving the UK each year. . . .
    “Parliament (and/or the devolved legislatures) is therefore involved if domestic law needs to be changed in order to implement a treaty . . .
    “The UK is a ‘dualist’ state, which means that treaties are seen as automatically creating rights and duties only for the Government under international law.
    “. . . where legislation is capable of two interpretations, one consistent with a treaty obligation and one inconsistent, then the courts will presume that Parliament intended to legislate in conformity with the treaty and not in conflict with it. . . .
    “But usually, before the UK Government ratifies a treaty, it seeks to ensure that any domestic legislation needed to implement it is already in place . . .
    “Not all treaties require domestic legislation
    “Many treaties — even some with major policy implications — require only minor adjustments to domestic law, or none at all.”

    (Parliament’s role in ratifying treaties — House of Commons Library — Briefing Paper 5855, 17 February 2017)

  4. Sam F
    February 28, 2020 at 19:39

    Excellent report, and argument on the treaty vs. the law.

    1. That the treaty excludes political offenses limits application of the law to non-political offenses.

    2. A political “offense” is an effort to change policy by exposing it (in contrast with “making war on the U.S.” which is treason under the US Constitution) .

    3. Those who implement a secret policy by such means that its exposure may cause damage, are responsible for that damage if the policy or means may be reasonably suspected of violating US law, Constitution, or treaties.

    4. If there is reasonable dispute as to such violations of law, it is those who conceal the policy or means who are responsible for the necessity of its exposure to allow public debate and decision thereof, not those who suspect that it is unlawful.

    5. So long as those who expose suspect secret policies or means, take reasonable precautions to avoid damage that would be wrongful, in the event that they are in error as to its legality, they cannot be held responsible for unforeseeable damage.

    6. Because nearly all US foreign wars since WWII are in violation of its Constitution, and serve purposes unknown to its People and beyond the federal powers enumerated in the Constitution, it is clear that a constitutional foreign policy would not give rise to these cases of damage to secret agencies by exposing secret wars. If the US only defended its borders, there would be no dispute or need to expose to the People its actions in doing so, and these cases would not arise.

  5. February 28, 2020 at 14:36

    I’m so sad and so mad in a way about the proceedings. The magistrate might as well have come right out of Monty Python. Julianne Assange deserves a safe house – will nobody rise to the occasion?

    But I suppose “they” have made it clear – the world we live in. So clear that even those who in that past who gave it no consideration may think twice about what is going on here.

    Is everything we were told when we were growing up in grammar school a LIE? Seems as so, it pains me to say. (Note: On reconsideration: not the math lessons though nor the grammar – just the history seems lately to me). Oh well, it really should come as no surprise, but maybe it will move some out of a slumber to the point that they start actually thinking a bit more about what is in their own interest.

    A big huge thanks and a hug as well to the dignified Mr. Craig Murray and all of his efforts in difficult times. I believe it will be remembered.

  6. John Earls
    February 28, 2020 at 14:25

    Wow. The prosecution seem to be trying to argue that the treaty used to legally justify the extradition is illegal.

    • Rose
      February 29, 2020 at 06:28

      If everyone who supports Julian made their presence know in front of Belmarsh, we’d be a force to reckon with! Be there for the next round, beginning May 18; a few hours, a day, a week, just be there! This travesty is happening in the light of day! Wake up!

    • DW Bartoo
      February 29, 2020 at 13:33

      Craig Murray, in his day 3 article, in the “A Photo” section, mentioned, as have a number of other observers, including a commenter here, some days ago, that there are no photographs to be found anywhere of Judge Vanessa Baraitser.

      Caitlin Johnstone, in a 28 Feb. 2020, article (which I hope CN might publish) entitled, ‘This Assange “Trial” Is A Self-Contradictory Kafkaesque Nightmare’, addresses this same thing, which any and all of the rest of us might find not merely odd, but creepy for, while the rest of us are surveilled constantly, Baraitser who is presiding over what certainly is the trial of the century, so far, has NO public photographic imagery at all.

      While it is blatantly obvious that Assange is being brutally persecuted and prosecuted under what at Nuremberg was termed “an empty form of law”, used by the Nazi government to undermine the actual rule of law, in the U.K. we now witness the same empty form and one must wonder why governmental power even permits us to know the name of the judge.

      You would think with the lengthy time available to both the U$ government and its very willingly subordinate, that steps would have been taken to hide the very identity of such a ringmaster as Baraitser, that she would be referred to as “Judge B” or even simply as “The Judge”. Indeed, it is more than a bit surprising that she has not donned both a hood and robes that even her sex would be indeterminate, and a voice scrambler could complete the official finery.

      Does not the stunning majesty of an intentionally very empty rule of law virtually demand that those rendering verdicts may, nay, must do so anonymously? It that not going to be critically necessary, in order protect the very rule of law, itself?

      If justice is to be truly blind, then ought it officers be, if not invisible, especially when such trials as Assange will face in the U$ will be secret, to “protect” National Security (one should bow one’s head in respectful awe), then equally hidden and secure from public scrutiny, safe beyond recognition, beyond any possible personal censure or public or private ridicule, well beyond the ken of hoi paloi?

      Is not the August Authority of the State itself not vested in these divinely powerful and important personages?

      Once upon a time, in lands far, far away, it was a criminal act to even look upon the face of the sovereign.

      Are not our main protectors, the primary upholders of law, justice, freedom, liberty, and sacred democracy entitled, at the very least, to similar deference, respect, and honor?

      After all, they, with a little help from the most respected institutions in our societies, the military and law enforcers, the noble fourth estate, and the wealthy and generous patrons who munificently fund our political systems, are among the sainted ones who make our beloved empire both possible and loved beyond measure all over this thriving globe.

      I am certain that it is pure modesty which keeps The Judge from crass, low class, photographic displays of preening ego, of salacious pandering to a simpering, if fickle, public curiosity of the most plebeian, sordid, and slanderous sort, best reflected in the lurid scandal sheets found in racks when trundling a shopping trolley to the check out register.

      Imagine Judge B, resplendent in a shimmering white hooded robe, glistening with gold and silver filigree tread work, dispensing justice, righting wrongs, and righteously collaring contemptible criminals who nefariously delight in exposing to public view unsettling things such as naked truth and bald-faced lies!

      All this while showing only the one way mirrors that protect her all-seeing eyes ?.

      Coming to a theater of war near you, any day now. Be advised, btw, that the great and wonderful Apple of All Eyes has decreed that movie villains must NEVER be shown to be using iPhones.

      Do not we all feel so very much safer (and secure) knowing that our well-being is constantly uppermost in the thoughts and activities of the very best of the best?

      Remember, every thing they do is for little old you.

  7. Skip Scott
    February 28, 2020 at 14:20

    “Abuse of process” is the norm for EMPIRE. Article VI of the US Constitution states that any signed treaty is “the supreme law of the land,” yet every president in my lifetime has violated the Geneva Conventions, the UN Charter, and the Nuremberg principles. None have been prosecuted. One of the first requirements of gaining the office of the presidency is to become the next “war criminal in chief.” It is similar to being a “made guy” in the mafia. For anyone with eyes to see, the rule of law is dead.

  8. Skip Edwards
    February 28, 2020 at 14:08

    Delay, delay, delay. A man’s life is only so long. A tortured and socially isolated man’s life is severely shortened. That taking cannot be returned. Julian Assange is being slowly killed by the British on the conspiratorial orders of the US government. As citizens, we are obliging this torture and murder. And don’t forget Chelsea Manning sits rotting in prison and Edward Snowden remains forcibly estranged from his family, country and friends for the crime of of daring to divulge US war crimes and illegally spying on all of us. Freedom is just another word for nothing else to lose.

  9. mary e
    February 28, 2020 at 13:47

    I, along with many friends and family, will be following CN’s daily update on Julian. What a travesty of justice is going on there in the Crown Court….how bold faced lies are accepted by the judge as truth is inexplicable. And the fact that the US is like a pit bull on this
    extradition hearing is appalling….I am embarrassed to admit that I am an American.

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