The High Court has heard the U.S. appeal. It can agree with it, dismiss it or send it back to Magistrate’s Court. Joe Lauria looks at the possibilities.
By Joe Lauria
Special to Consortium News
There are five possible scenarios that could result from the two-day hearing at the High Court in London at the end of last month on the U.S. appeal of a lower court decision not to extradite imprisoned WikiLeaks publisher Julian Assange to the United States to face espionage and computer intrusion charges.
A ruling is not expected for weeks. The two judges on the High Court, Lord Chief Justice Ian Duncan Burnett and Lord Justice Timothy Holroyde, must decide whether District Judge Vanessa Baraitser applied the law correctly in finding that it would be oppressive to extradite a highly suicidal Assange to a harsh U.S. prison.
The judges can make one of five possible decisions, according to section 28 (e) of the Senior Courts Act 1981:
- they can uphold the first court’s decision and dismiss the U.S. appeal;
- they can allow the U.S. appeal and overturn the order not to extradite;
- they can send the case back to magistrate’s court with instructions on following the law;
- they can amend the ruling.
The fifth possibility is that the two judges fail to agree on a decision and a new High Court panel would rehear the U.S. appeal.
What the High Court is Weighing
Burnett and Holroyde must essentially decide if a) Assange is too ill and too prone to suicide to be extradited and b) whether they believe U.S. promises that Assange will not be put into extreme isolation in a U.S. prison.
Specifically, the judges must determine whether Baraitser misapplied the law in her January decision to block Assange’s extradition. The U.S. appeal argues that Baraitser wrongly applied Section 91 of the U.S.-U.K. Extradition Treaty and that had she properly done so, she would not have discharged Assange.
What the Treaty Says
Section 91 states:
To convince the High Court that Assange is mentally fit for extradition, the U.S. wants to throw out the testimony of expert defense witness Dr. Michael Kopelman on a technicality: that he initially withheld the name of Assange’s partner Stella Moris and the existence of their two children from his preliminary report to the court.
In her judgement, Baraitser said that that though this was concerning, it was understandable in light of testimony that a C.I.A.-contracted Spanish security firm had spied on Assange and Moris at the Ecuador embassy in London.
The U.S. was well aware of the existence of the children six months before Assange’s September 2020 extradition hearing.
The U.S. also argued at the High Court that two expert witnesses for the prosecution testified that Assange was neither seriously ill nor suicidal, though Consortium News reported that those witnesses actually agreed to an extent that Assange was on the autistic spectrum with Asperger’s Syndrome, which makes one nine times more likely to commit suicide.
So the High Court judges must decide whether Kopelman’s “understandable” concealment of Moris and the children rises to an egregious enough offense to disqualify Kopelman’s testimony about Assange’s mental condition. The judges must also weigh the other testimony of defense and prosecution expert witnesses about Assange’s psychological state.
Will the judges be convinced that Baraitser incorrectly found extradition “oppressive” and that they should overturn her decision?
Will Judges Trust US Assurances?
The judges must also decide whether U.S. assurances to not mistreat Assange in a U.S. prison are trustworthy. Washington has promised not to put Assange under Special Administrative Measures (SAMS) or to send him to isolation at the ADX Florence prison in Colorado.
Assange’s lawyers argued those assurances should have been given before Baraitser’s judgement and not afterward. The U.S. contended that Baraitser should have notified them of her provisional view on Section 91 before her judgement so that the assurances could have been made then.
Prosecutor James Lewis also argued that there was precedence for providing assurances after a judgement is made. He vowed that the U.S. has never broken its word in a diplomatic assurance.
Assange’s lawyers pointed to cases where the U.S. had indeed broken its word. Amnesty International has called the assurances “inherently unreliable”. In any case there is no dispute that the assurances are conditional: the U.S. said it reserves the right to change its mind: if Assange “does something” to threaten U.S. national security they could then put him into harsh isolation.
1. The US Appeal is Dismissed, Assange Wins
If the court rejects the U.S. appeal and upholds the lower court’s decision, the United States would have a decision to make. It can apply to appeal the High Court’s ruling to the U.K. Supreme Court, which may or may not take the case after the first appeal was lost. Or the U.S. can admit defeat and drop the charges, as it did in the Lauri Love case.
Vice President Joe Biden told Meet the Press in December 2010 that unless the government could catch Assange redhanded taking part in stealing classified documents, it could not indict Assange. An Espionage Act charge against him for passively receiving documents and publishing them was off the table.
And indeed the Obama-Biden administration did not indict Assange. It was unable to come up with evidence of Assange stealing documents and shied away from a collision course with the First Amendment that an espionage charge would bring.
The Donald Trump administration, however, did indict Assange, evidently unconcerned about the First Amendment. It also relied on perjured testimony to try to prove Assange was involved with hacking.
If President Biden sticks with what he said when he was vice president, he would drop the case if the U.S. loses. However the Biden administration had the option to drop the Trump appeal and didn’t.
That’s likely because two things have changed since 2010: Democrats still blame WikiLeaks for Hillary Clinton’s 2016 defeat to Trump because it released verified Democratic Party emails that showed corruption in the party. As the head of the party, Biden is likely under pressure from top Democrats not to drop the case, which they would probably consider heresy.
The second thing that happened was WikiLeaks‘ release of Vault 7 in 2017, the largest ever leak of C.I.A. materials. It was what led then C.I.A. Director Mike Pompeo to seriously consider kidnapping or killing Assange. Though those nefarious plans have for the moment probably been shelved as Assange languishes in Belmarsh Prison, the current C.I.A. leadership, still aggrieved, would no doubt also be pressuring Biden not to drop the case.
Because Biden has vowed that his Justice Department is independent from White House influence, in this case at least he could easily evade party and intelligence pressure by leaving it up to Attorney General Merrick Garland to decide whether to pursue an appeal to the U.K. Supreme Court, or drop the case and let Assange go.
If the U.S. loses and appeals to Britain’s highest court, the question of whether Assange can be released on bail would again arise. After Baraitser barred extradition and “discharged” Assange, she refused to allow him bail because she ruled he was a “flight risk” and threw him back in the slammer.
This time might be different, however. Gabriel Shipton, Assange’s brother, told Consortium News that after Assange spends two years in jail on remand his lawyers can ask the European Court of Human Rights to grant him bail. Assange has been in Belmarsh on remand since September 2019. Shipton expects the European court to rule in his brother’s favor, but it is uncertain whether British authorities would honor it.
2. The US Appeal is Allowed, Assange Loses
Assange lawyer Jen Robinson told Australian TV last month that if Assange loses, he will apply for an appeal to the U.K. Supreme Court. This could add months more to the legal process and if Assange is not granted bail after the High Court decision, it would mean he’d be condemned to further imprisonment.
Assange’s lawyers would seek to defend Baraitser’s application of Section 91, i.e., that he is too sick and prone to take his life. They would also argue why U.S. assurances given after her ruling (that he will not be thrown into harsh isolation in the U.S.) can not be trusted. The Supreme Court, if it decides to take the case, may or may not accept introduction of new evidence of the C.I.A.’s plot to kill or kidnap Assange, as the High Court allowed.
Assange is no stranger to the U.K. Supreme Court. He lost his appeal there in 2012 against extradition to Sweden, where he feared he’d then be sent onto the U.S. Instead he received political asylum from Ecuador and remained in its London embassy until he was dragged out by British police in April 2019 and thrown into Belmarsh, after which the extradition proceedings began.
3. The Case is Sent Back
Another option the High Court has is to “remit the matter to the magistrate’s court … with the opinion of the High Court, and may make such other order in relation to the matter … as it thinks fit,” according to the Senior Courts Act.
If the case goes back to magistrate’s court it would have in all likelihood be taken up again by Baraitser. But she was moved on in September from her post as a district judge to a new position as a circuit judge at South Eastern Circuit, based at Inner London Crown Court. The Queen appointed her on the advice of Lord Chancellor Robert Buckland QC MP and Burnett.
“If the High Court were to remit the case back to the lower court for a reconsideration and a new decision on a point that the trial judge (ie. Baraitser) had previously got wrong — something which by the way I think is distinctly possible — then the High Court would give the lower court guidance on how to make the decision correctly,” said CN legal analyst Alexander Mercouris.
“That leaves open the possibility that [the new district judge] could reconsider the decision, follow the High Court’s guidance, apply the test correctly, and still come to the same decision that Baraitser did before, which is that Assange should not be extradited to the U.S. because of the prison conditions there, and because of the danger to his life and health,” Mercouris said. However, a new district judge could come to a different conclusion, namely siding with the U.S.
Both sides can request to put new evidence before the reconvened magistrate’s court. The U.S. can ask the new district judge to allow it to present their assurances that Assange would not be put in Special Administrative Measures (SAMS) if he were to be extradited. And Assange’s team could seek to introduce details from a September Yahoo! News article about the C.I.A. plot to kill him. Both sides may want to put on new expert, medical witnesses to bolster their case. The district judge will have leeway to permit or reject any new evidence.
If the new judge should come to the same decision to discharge Assange, according to the Australian foreign ministry’s understanding, “then the appeal is taken to have been dismissed by the High Court.” But if the new judge comes to a different ruling, Assange’s discharge is “quashed.” Either side could then presumably take their case to the Supreme Court.
This raises the uncomfortable question of the timing of Baraitser’s removal from the case and Burnett’s involvement in it. The likelihood of a different outcome increases with Baraitser out of the way.
Regarding the option the High Court has to amend the lower court judgement, Mercouris said it would mean a specific point of law in Baraitser’s ruling could be corrected without affecting the High Court’s judgement to uphold it.
Another Consideration: ‘Improper Motivation’
There is another possibility, though most likely remote, that could tip the High Court ruling in Assange’s favor. The judges, perhaps taking into account the Yahoo! revelations, might find that the U.S. has not been properly motivated in pursuing Assange. The Australian Foreign Ministry’s key to its chart says that the judges must be satisfied that the extradition request was not “improperly motivated.”
“The Australian Foreign Ministry is absolutely right on the subject of ‘improper motivation’,” said Mercouris. “It is a fundamental principle that legal proceedings should not be used as an instrument to oppress another.”
If the High Court were “persuaded that the reason the U.S. wants to punish” Assange was simply because “as a journalist he had published information about the U.S. which was embarrassing, and that various charges under the Espionage Act were simply window dressing in order to achieve that result, then that would be oppressive, and an improper purpose, and the Court should refuse the extradition request,” Mercouris said.
He added: “
“The High Court does have the power on appeal to overrule a lower court judge by itself finding that an extradition request is ‘improperly motivated’, and a possible pathway to achieving that in this case is by citing the Yahoo! report, which showed (1) the obsessive hostility to Assange of some elements of the U.S. government; (2) the extraordinary lengths to which they were prepared to go; and (3) the fact that they were prepared to go to these lengths in response to the Vault 7 revelations, which however are not a part of the extradition request. That fact shows that the true reason for the extradition request is to punish Assange because he has published embarrassing information, and not because he is really believed to have committed any crime.”
Mercouris said it is a hopeful sign for Assange that his lawyers were able to discuss the Yahoo! report at the hearing of the High Court. The court normally does not permit new evidence. Significantly, the U.S. lawyers did not contest it. In the September 2020 extradition hearing, Lewis had called talk of assassination plots against Assange “palpable nonsense.” At the High Court Lewis said nothing after hearing details of the Yahoo! story.
“There is some mystery here, and it could be that there has been a behind-the-scenes argument about the admissibility of this evidence — with a decision taken to allow it — which we do not know about,” Mercouris said.
The Threat of a New Extradition Request
Toward the end of his rebuttal on the second day of the High Court hearing, Lewis made what seemed an ominous threat:
US: "Even if we lose, we can start again with Mr. Assange and issue another extradition request" -James Lewis QC today at the UK High Court on behalf of the US Government
— WikiLeaks (@wikileaks) October 28, 2021
“I am stunned that Lewis actually said that if the current extradition request is refused, then the U.S. will simply make another one,” said Mercouris, who worked as a lawyer for 12 years at the Royal Courts of Justice. “I cannot imagine that the High Court was pleased by that comment. It sounds to me like an attempt to pressure the High Court, which judges would normally respond to badly.”
“If the U.S. strategy is to bring a fresh extradition request if the current one is refused, and to go on bringing extradition requests so as to keep Assange in prison indefinitely,” Mercouris said, “I would have thought that that was oppressive, with the High Court in that case obliged to dismiss all such new extradition requests, on the grounds that they were clearly ‘improperly motivated’, being intended to keep Assange in detention indefinitely even though he has been found guilty of no crime.”
But he hastened to add: “As was said during the hearing, there is nothing normal about this case.”
UPDATE: Vanessa Baraitser is no longer in the magistrate’s court, as an earlier version of this article reported. She has been promoted to circuit judge and would not review the case again if the High Court sends the Assange case back to magistrate’s court.
Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers. He was an investigative reporter for the Sunday Times of London and began his professional work as a 19-year old stringer for The New York Times. He can be reached at [email protected] and followed on Twitter @unjoe
I would not trust the biden administration.
While I should not, I continue to to some degree astonished by the flagrancy of all that has occurred. That we live in a world that is, in my view, essential run/ruled by individuals without any moral conscience is deeply deeply troubling. Bandied about, among other implausible phrases, is “we are a country of laws.” Conveniently forgetting that every law that has ever been written has, in the main, been written by those in power and written to their advantage so that their power is maintained. That Assange had sought asylum in the Ecuadorian Embassy and, through the power exerted by those in power in the US who wished to have their evil deeds remain a secret, he was taken from this supposedly “safe” place to a high security prison sheds light on the lengths those in power in the US and Britain are willing to go. The US, willing to go further in its illegal and immoral actions, plotted to kidnap and/or assassinate Assange. So much for a country of laws.
He will go down in history. There will be cities, ships, mountains, buildings and towns named after him while his persecutors names not remembered will perish and be gone, all forgotten.
Well said sport!,
I would also add that there is a bizarre irony in this case in that Assange’s defense is trying to argue that imprisonment in America would subject Assange to psychological torture, while this is clearly what the British government is trying to do with Assange’s isolation in Belmarsh prison. The British government wants this torture, or is following U.S. orders, and is arranging this to the extent possible within the rules. The same applies to the “improper motivation” defense; the British government has repeatedly demonstrated an improper motivation with its illegal actions and irregular legal procedures, so it would be ironic indeed if the court decides the U.S. has an improper motivation.
RT has an interesting video interview with Nils Melzer about Assange which is worth watching. Melzer makes the point that Baraitser actually crippled Assange’s appeal with her verdict, because that decision prevents the appeal from being based on human rights/press freedom issues and limits it to the issue of U.S. prison conditions, a much more difficult and ambiguous case for Assange to make. If Baraitser had simply approved the extradition, Assange could have raised all these human rights issues in the appeal.
The U.S. prison condition issue is vague, which means the decision will be left to the judge’s discretion. At least one of these judges seems political, and I fear we will see about as much objectivity as we saw from Baraitser and that Assange’s chances are small. Assange’s case may have really been decided when Corbyn was defeated and Boris Johnson became PM.
US War Criminals walk free, while tellers of the Truth are imprisoned and shut up !!
The American way in judicial & commercial practices is to make innocent people GUILTY that’s ‘THE AMERICAN WAY = as long you’ve MONEY you ALWAYS WIN!
So it goes on!
I never thought I would see the day when an Australian Government would not lobby fellow democratic countries to free an Australian citizen from a hell hole like Belmarsh. That is to, if not free him, relocate him in a much less harsh prison.
How would it be enlightening for the USA, UK and Australian Governments to take the plank from their own eyes, before lecturing others. Yet they lecture other countries about Human Rights. In this instance, concerning Julian Assange, they are little better than the Chinese Communist Party.
No words can express what injustices have been perpetrated against this poor soul. British Justice!?
There, but for the grace of God, go we citizens who object against the modern state’s tyranny.
China has not held anyone in pre-trial solitary for years. It’s against their laws.
We are far worse.
The Star Chamber was originally established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would probably hesitate to convict them of their crimes. However, it became synonymous with social and political oppression through the arbitrary use and abuse of the power it wielded.
Star Chamber, Incorporated
Julian Assange and Chelsea Manning
Jailed as twin examples for the proles:
“Look what happens if you publish secrets:
More totalitarian controls.”
In Chinese: “Kill the Chicken scare the Monkey.”
Rat-out your colleagues. Do not Power tempt.
Or otherwise the judges and grand juries
Will hold you in what lawyers call “contempt.”
A strange word-choice, indeed, by Power’s minions
Who spend careers perfecting rank abuse.
For them I’d have to feel respect much greater
Before that is the word that I would use.
I’ve nothing good to say for prosecutors.
Some say I wish to “damn them with faint praise.”
But I reply: “You praise with faint damnation.
So which of us has coined the the better phrase?”
Despicable, the treatment of these heroes.
The US and UK have sunk so low.
Still, Julian and Chelsea have together
More balls than these two governments can grow.
No matter, they have passed into the ages.
Already they have earned a fair renown.
Each day they live defiant, undefeated,
They rise as jailers try to put them down.
As JFK once said of his elite class:
“The ship of state leaks mainly from the top.”
But if some lowly, powerless, poor person
Tries that, they’ll feel the lash. No truth. Now stop!
To scare a monkey, kill another monkey.
If not, the monkeys learn impunity.
While eating KFC they ask, obtusely:
“What has a chicken got to do with me?”
And so the Corporation-State must silence
Reports of its incompetence and crime.
If citizens knew what it did they’d order
Its dissolution. Now. And just in time.
Historically, they called it the Star Chamber
A secret court designed to thwart the king.
But power then perverted it to serve him.
Grand juries in the US, same damn thing.
They now indict ham sandwiches routinely
With no protection for the innocents.
Presumed as guilty, evidence not needed.
Conviction guaranteed. No court repents.
A judge may do whatever he determines
He can. So levy fines. Coerce. Demand
On penalty of prison, testimony
Against oneself, alone upon the stand.
“Democracy” is just a euphemism
If citizens allow this to proceed.
Orwellian: first Hate then Fear of Goldstein.
Two Minutes, daily. Really, all you need.
Michael Murry, “The Misfortune Teller,” Copyright © 2019
Julian will never get justice he gets the LAW-lets not confuse the 2!
“Blame, in every case, appears to be a modification, often accompanied by a transference, or “projection” of the primary feeling of self-reproach” — Charles Sanders Peirce
Stenographers’ Assange Envy
Rotting in prison while
Those he exposed speak of
Which they attribute to
Him while they trample on
Every last vestige of
Freedom and “Laws.”
Julian published the
Truth about governments’
Wars and corruption and
Things other “journalists”
Should have uncovered, too,
But since they didn’t they
Hope that he dies.
Michael Murry, “The Misfortune Teller,” Copyright © 2021
“In Oceania there is no law.” — George Orwell, 1984
Smith and Assange (namely, Winston and Julian)
Both as in Nineteen and Eighty and Four,
Faced a grim task positively Herculean:
How to report on the Truth about War?
“Secret,” and “need to know,” “eyes only,” “classified,”
Crime and incompetence hidden from sight.
Voters: the enemy; knowledge: tyrannicide;
Staying in power the oligarchs’ plight.
Meanwhile in Airstrip One (London) – America
Argues that Julian must not go free.
“Guilt” by presumption. A “trial”? Esoterica.
First comes the sentence; the verdict? We’ll see . . .
Belmarsh for Julian waiting while “judges” snore.
Lawfare makes “courts” Oceania’s whore.
Michael Murry, “The Misfortune Teller,” Copyright 2021
Sadly, Ray McGovern in an interview said that the CIA already
won its prize, of keeping media from authentic journalism revealing
American war crimes and its crimes against humanity.
And that the CIA will get their victim no matter where, even
“Antarctica.” And he would know.
Truth be told, Corporate state savagery has won, no matter
what happens in the courts.
Julian gave you YOU you YOU a true history of the Twenty First Century …. his suffering represents his suffering for youYOUyouYOU his desire to show the texts that led to deathWar destruction of infrastructure deathWar lifelong injury of innocents Refugees deathWar Notice the failure of politicians who start wars to OWN their own WORDS – rather demand the MESSENGER be imprisoned for the rest of his precious LIFE. Julian is a GREAT AUSTRALIAN he should be free … free to marry … free to raise his boys … free to travel …. free to talk to the world about WORLD PEACE. Journalists and Media the world over should sift for TRUTH and give the world JULIAN’S true story and how it applies to each individual youYOUyouYOU !!!
Free Julian Assange Now!
“Without a Free Press there can be No Democracy”
So far the Biden administration’s Justice Dept has lined up with Trump political hack Mike Pompeo’s capricious witch hunt on publisher/journalist Julian Assange who reported war crimes perpetrated in our name with our tax dollars.
But can that old “national security” canard continue to prop up a discredited foreign policy in the public mind given the tragic ending of a misbegotten 20 year brutal war on Afghanistan with nothing to show for it but $trillions wasted and death and destruction all around. It’s gotten tougher to put lipstick on that pig of for profit wars when serious needs at home suffer from neglect – pandemic preparedness; climate disruption; health care neglect; infrastructure neglect, etc
Perhaps the falling poll numbers will wake up the DNC and the Biden administration will get real.
Show a little courage. Stand up for courageous whistleblowers who don’t lie while standing up to the war machine that does lie, all the day long. And everybody knows it.
If he took that step, my sense is that he’d get polling points for showing some courage and more for doing the right thing.
So the fact that a perjury testimony was used by the US to try to prove that Assange did not receive the information but contributed to the hacking of it (paramount argument for the extradition) will never be put on the table again to dismiss the case?
Assange could as well die in prison because it will take years to have a decision about his extradition, whatever it will be.
How at any stage these horrible and ridiculous charges could even have been considered tells us that justice is the last of the functions of the law in this case. Letting the USA take charge, allowing Baraiser, the minion of Lady Arbuthnot to take over the case when she was shown to have serious conflicts of interests in this case, making a deal with corrupt Ecuador leader to sell Assange into UK police custody for IMF loans, accepting “evidence” from people with obvious reasons for their lies and changing “facts”. How could any “free, democratic country” dare to criticise “authoritarian régimes” while acting in such a dishonest and cruel manner?
“As was said during the hearing, there is nothing normal about this case… ”
You can say that again; committed no crime, spied upon, character asassination, the possibility of being sent to country that has previously planned to kidnap and/or murder you. Everyone who is involved in the persecution of Julian Assange must be from an alternative universe.
All rights reserved,
The word of the U.S. Government is non-existent and promising not to torture Julian Assange is 100% an unrealistic statement by any Attorney. Once the United States color of law actors get custody of Julian Assange he will be turned over to the US Department of Justice custody and locked up in one of their private or public prisons that answer to nobody, torture is guaranteed if the United States Government gets custody of Julian Assange. Maybe the people of London are unfamiliar with the United States torture program, it works like this. Typically a low inferior federal court judge prosecutes his case in what is a so-called U.S. District Court, once the case rigging is complete and a conviction is secured by hook, crook, manufacturing of evidence, destruction of evidence favorable to the defense and the sentencing phase starts, it does not matter what a “low inferior federal judge” writes in the sentencing, says at sentencing or recommends, at the end of sentencing the sale of the defendant occurs by the prosecuting federal judge to the U.S. Department of Justice for disposal in any manner the U.S. Department of Justice chooses, they (U.S. Department of Justice) become the new owner of the defendant and whatever torture they choose to impose will not be stopped by any attorney, any judge. The reduction of life and reduction of health program begins prior to arriving at one of their prisons. Harsh isolation is guaranteed, prisoners have lived in solitary confinement who broke a rule, like didn’t show up for work on time gets isolation in solitary confinement for months or years and that is just your average prisoner. A prisoner like Julian Assange would be killed by prison medical staff, that is where the prisons like to kill prisoners to get their revenge for whatever the prison managers and CEO view as the crime and then style the death as a medical issue. Torture would definitely be a feature of Julian Assanges imprisonment by the United States Government and it’s color of law actors both private and public, they like to use a combination of public actors and private actors in the prison industrial complex.
Biden should drop the case NOW.
Regardless that Hillary and her demented crowd want to murder Assange.