The assurance that Julian Assange will be allowed to rely on the First Amendment in his defence is a blatantly weak piece of sophistry.
U.S. Department of Justice Building in Washington. (Gregory Varnum , Wikimedia Commons, CC BY-SA 3.0)
By Craig Murray
CraigMurray.org.uk
The United States has now, on the face of it, produced the Diplomatic Note giving the two assurances required by the High Court to allow the extradition of Julian Assange to proceed.
The assurance that Julian Assange will be allowed to rely on the First Amendment in his defence is a blatantly weak piece of sophistry.
You can read my analysis on the High Court judgment of Assange’s right to an appeal here.
Let me dispense with the assurance against the death penalty. I am sure it will be accepted by the court. The USA does not need to execute Julian, it can incarcerate him in a tiny concrete tomb for life, under extreme sensory deprivation, as a terrible half living warning to any journalist who might reveal their crimes.
Remember this is a government that plotted to kidnap and/or assassinate him, as pled and not denied in court.
The assurance required on First Amendment protection is being misunderstood by almost everybody reporting it, and the U.S. Diplomatic Note seeks to take advantage of the confusion.
The High Court took the view that the First Amendment provides the same protections as Article X of the European Convention on Human Rights, and therefore Assange’s Convention rights will be protected if he is allowed to plead the First Amendment as a defence before a U.S. court. The court did not ask for an assurance that such a plea would succeed. Article X of the ECHR is itself absolutely shot through with authoritarian national security and other exceptions.
The assurance on which the High Court did insist was that such a plea could not be struck down on the grounds of Assange’s nationality. That would contradict the separate ECHR provision against discrimination by nationality. The U.S. Diplomatic Note has failed genuinely to address this point: but it pretends to do so.
The U.S. prosecutor in an affidavit to the U.K. court had already stated that Assange may be barred from First Amendment protection because he was a foreign national who had acted abroad.
Mike Pompeo, former C.I.A. director and former U.S. secretary of state, had also stated this officially. The principle is plainly articulated by the Supreme Court in the case of USAID v. Open Society:
The Crucial ‘Seek To’
The United States was therefore simply unable to state that Julian Assange will be able to make a First Amendment defence, because the judge, following the Supreme Court precedent, is almost certainly going to disallow it on grounds of nationality.
The Diplomatic Note therefore states that Assange may “seek to raise” a First Amendment defence without prohibition on grounds of nationality. This means precisely that his lawyers are permitted to say:
“My client wishes to claim the protection of the First Amendment for freedom of speech.”
This is “seeking to raise” it.
The judge will immediately reply:
“The First Amendment does not apply to your client as a foreign national acting abroad, as established by the US Supreme Court in USAID vs Open Society.”
That is consistent with the actual operative phrase in the U.S. Diplomatic Note:
“A decision as to the applicability of the First Amendment is entirely within the purview of the U.S. Courts.”
On 20 May there will be a hearing to determine whether this non-assurance is adequate to protect Julian Assange from discrimination on grounds of nationality and permit the extradition to proceed.
“The note contains a hollow statement, namely, that Assange can try to raise the First Amendment at trial (and at sentencing), but the U.S. Department of Justice can’t guarantee he would get those rights, which is precisely what it must do under British extradition law based on… https://t.co/GF1U0s3U3z
— Stella Assange #FreeAssangeNOW (@Stella_Assange) April 17, 2024
Now being a reasonable person, you doubtless are thinking that it is impossible that such a flimsy confection of legal sleight of hand could ever be accepted. But if so, dear reader, you have no idea of the corruption of the stool pigeons disguised as British judges.
Who would think that they could have ruled that a U.K./U.S. treaty has legal force to extradite Julian Assange, but that Article IV of the treaty excluding political offences strangely does not have legal force?
Who would have thought that they could have ruled that the U.S. government spying on his attorney/client legal conferences and seizing his legal papers did not invalidate the proceedings?
Who would have thought they could have ruled that the U.S. government plot to kidnap or murder him is irrelevant, because if he is extradited the U.S. government will have no further need to kidnap or murder him?
I could go on. I shall be very surprised if the High Court judges following the 20 May hearing do not rule that the right to ask not to be discriminated against on grounds of nationality (and be denied) is sufficient protection against discrimination by nationality.
They really are that shameless.
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. His coverage is entirely dependent on reader support. Subscriptions to keep this blog going are gratefully received.
This article is from CraigMurray.org.uk.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
The US wants to bring Assange, a foreign national, into the US court system but refuses to guarantee his right to protection by the first amendment of the Constitution. How can this be legitimate when the Constitution is the only basis by which any US court has any legitimacy. The Constitution itself makes no distinction limiting the freedom of the press to media based in the US. It simply says no law will be constitutional that restricts freedom of the press.
What I do not understand is what is the basis of jurisdiction of any US government agency or court apart from the constitution? Is there some other legal foundation for anything the US does other than our own constitution? When an accusation of criminal action is made, the basis of judicial action is US law. US law only operates or has validity within the US Constitution. This case is really about the non- constitutional activities of the US military and the right of journalists to expose Government crimes. It’s about the moral responsibility of soldiers to oppose war crimes, a responsibility invoked at Nuremberg, which has become a threat to US impunity from the rule of law by exposing criminal actions hidden behind a vast and growing system of secrecy.
The real Issue and the entire purpose and legitimating necessity of Wikileaks is being obscured by turning whistleblowing and journalism into espionage.. Those bearing witness to crimes have been criminalized. The large and unspoken issue is not the exposure of crimes and lies.. The problem is the crimes themselves and the attempt to keep the record of those crimes from public view by classifying embarrassing criminal acts as secrets un-available to the public. Secrecy becomes essential when governments want to lie, to break other countries’ laws, to torture prisoners , to initiate coups, destroy infrastructure, and to persecute or murder political enemies without legal accountability. The truth is that the CIA, which functions as the secret police of the executive branch has no basis in the Constitution. Similarly the US military has no basis for military actions abroad apart from a Congressional Declaration of War or immediate military threat. The direct government suppression of people including the most qualified doctors in the country who question covid policies and vaccines violated our constitutional freedom of speech.
The entirety of US foreign policy and much of its domestic policy has been operating with no constitutional basis and the US has become a rogue state, as violent as any empire before it. The revolutionary ideal of universal accountability to the rule of law has been turned into selective government enforcement, often to either hide or promote its own lawbreaking. That is the larger context of the persecution of both Manning and Assange, but also many, many others. Secrecy and the suppression of information gathered at public expense is at the very heart of this lawlessness and that is why we need the accountability that whistle blowers can and should bring in order to purge fascism and empire building from the US republic and to free our planet from the legacy of western imperialism.
Wasn’t it Kissinger himself who said it was more dangerous to be a US ally than to be a US enemy? I wouldn’t trust the USG as far as I could throw an M-1 Abrams tank.
US + UK + israel= the liars club.
Nice Vera, certainly no mincing of words
It now appears that those running this nation—of either party—now have the right to punish or even murder a truth teller . This truth teller we surely need because the current US government is much too much involved in lies. Julian Assange is a truth teller—Biden is not—nor is the idiot Trump.
It is truly amazing how far America has fallen when America sends money , money and more money to the lying Netanyahu, but yet wants to murder one of the few truth tellers on this planet. And of course, we also have Biden’s disgusting son to see how those in power, Biden and Trump seem to excel in ruining the lives of others.
It does seem as if both Biden and Trump are useless and that America—at least in the FDR days truly cared about Truth and Justice . How far
we have fallen. : (
‘farce’ indeed is the right word. what’s left is a pure, blatant, in your face display of abuse of authorative power. pmc-members and ‘middle-classers’ must start to wonder if their place in the picking order will save them when this system comes knocking on their door with the precedents being set. if this works this time, they’ll be using it for lots of other, maybe less embarrassing, but more profitable stuff (like russia-sanctions and confiscating Venezuelan gold reserves).
My thoughts exactly. The US empire and its cronies in the G7 are breathtakingly corrupt and hypocritical.
The US Constitution is far more protective of free speech than international human rights law you provide.
If extradited, the case will be tried under US criminal law, in US courts on US soil. In those US courts, foreign nationals are “people”covered by the US Constitution and Bill of Rights.
The location of the crime does NOT determine the applicability of the law.
The USAID case involved a foreign corporation (NGO) and the dispute was based on a law passed by Congress. The restriction upheld by the court did not prohibit speech, it merely limited eligibility for funding. No big deal.
Assange is easily distinguished from that case. He was acting as a journalist and a publisher, thus the prosecution attacks fundamental core 1st amendment rights and therefore riggers strict scrutiny by the Court. This is totally different from the USAID facts and legal underpinnings.
It is Incredible to me that so called human rights and civil liberties people are making this sham argument and throwing the 1st amendment and protection for foreigners under the bus.
“The US Constitution is far more protective of free speech than international human rights law you provide.”
Actually, that is exactly what the author said; I suggest re reading it.
But he also showed how our constitutional rights which should extend to any accused person in any US court have been undermined in various precedents( not justUSAID), and largely ignored at Guantanamo. I agree that most of those decisions are limited and don’t properly apply but even the wording of the “assurance” does not guarantee that a 1st amendment argument will be allowed. The 1st court in the US will be in the heart of far right spook country. It won’t be a fair trial. This is a government that conspired to murder Assange. The UK courts are as threatened by Wikileaks as the US and they must hand off Assange or release him.
I disagree with this claim:
“The United States was therefore simply unable to state that Julian Assange will be able to make a First Amendment defence, because the judge, following the Supreme Court precedent, is almost certainly going to disallow it on grounds of nationality.”
You cited an inapplicable case (USAID). You need to read US Supreme Court cases on the application to foreign nationals. The bill or rights and Constitiioon apply to “persons”, which include foreign nationals.
Based on a Georgetown Law Review article.
Notwithstanding Julian’s prospects do not seem good Julian is extremely fortunate to have the full support of the Australian “mainstream media”. He has also had the benefit of the inexhaustible efforts by the politicians from both major parties giving their wholehearted support to his welfare, his defence and release from custody. The tireless and vigorous effort by successive Australian Prime Ministers, Ministers and diplomats to seek his release has been amazing.
That Australia is the world leader, the champion, of the “fair go”, fairness and justice and this has been demonstrated in Julian’s case.
May God bless Australia, the home of the gutless, the stupid, the treacherous and the naive.
Julian will face LIFE IN PRISON for TELLING THE TRUTH if he is extradited to the US! The High Court should not be swayed by the so-called “assurances” from the US government – as we’ve seen with the Gaza/Israel predicament, the US government cannot be trusted to do the right thing!
The crucial “seek to” phrasing is a brazen malapropism with a smile on its face.
If it is accepted, this is not farce. It’s criminal deviance and brazen corruption of the notion of “justice.”
The just response would be: We have not received assurance of the first amendment, only the possibility that the accused may request that it applies to his case. Therefore, this requested assurance fails, extradition denied!
No false hopes. You have done your duty to keep your readers
well prepared for the “stool pigeons disguised as judges.”
Baraitser to begin with.
Julian imprisoned keeps the genocide against journalism going.