By COURTENAY BARNETT
When I was a young lawyer in the Chambers of a leading Jamaican lawyer, I was given a research assignment. The matter concerned extradition law. A Jamaican police officer had migrated in the 1970s to the US and there joined and distinguished himself in the military. The then Prime Minister of Jamaica, Mr. Edward Seaga, came to power in 1980 and thereafter made application through the Jamaican Government for an US extradition back to Jamaica to have the man stand trial. On the US defence side was Leonard Bodine ( i.e. the lawyer who had defended Paul Robeson). So, he was well represented. The research was completed and the salient point was that an extradition will not be ordered if the primary reason for seeking the extradition is ‘political’. Thus, the senior Jamaican lawyer travelled to the court in Virginia to provide the Jamaican law and arguments in opposition to the extradition. The team was successful, for indeed the extradition had a political motive and the US Judge, for that reason, refused the Jamaican Government’s application. That central legal principle remains constant – so to the extradition application in the UK for Julian Assange’s extradition to the US.
Assange is the founder of Wikileaks who had obtained large amounts of US Government secrets and other confidential information and he published same on the internet for the world to read. The US Government was most displeased and thus sought Assange’s extradition.
At first instance Assange’s lawyers argued that he would be subjected to inhumane treatment in the US prison to which he would be confined if he were to be tried in the US and sentenced. The Magistrate accepted the argument and the extradition was refused. The US Government appealed to the UK Court of Appeal. The appellate court overturned the first instance ruling and accepted the US Government’s assurances that he could serve his sentence in Australia and that he would not be sent to the high security prison in the US where he would be placed in solitary confinement for 23 hours per day.
The legal issues are interesting on at least three levels.
1. The publications by Wikileaks are highly embarrassing to the US Government. Not least was a video of American military personnel in a helicopter flying over a street in Iraq while randomly shooting and killing Iraqi civilians while joking as if engaged in a video game. Here is the video.
In that regard, the video is factual and well within the confines of needed disclosure in the public and global journalistic interest. The military persons involved were never charged for the offence of murder nor was any other charge ever laid. Piecing this particular disclosure together with several other disclosures it is perfectly logical to submit in court that the US Government’s application is in essence a ‘political’ one for reason of the embarrassment felt by the US Government.
2. The second argument would go towards whether or not there was a breach of the US Espionage Act 1917. The short answer is – yes there was. But, the argument does not stop there. There is precedent on this point in the case of the New York Times publication of the Pentagon Papers. That was the confidential Government papers detailing many unknown facts about the prosecution of the Vietnam War by the US Government. In other words, the New York Times sought to publish the truth. The US Government then obtained an injunction prohibiting publication. The New York Times challenged the injunction on the basis of infringement of First Amendment rights ( i.e. freedom of expression). The Court ruled that while there was a conflict between the provisions of the Espionage Act and the First Amendment, the Constitutional right under the First Amendment took precedence over the Act and it was in the public interest for the public to be informed. The Pentagon Papers were published. Thus, there is precedent for what Assange has done. He has contravened the Espionage Act while at the same time, it can be argued, that through his journalistic endeavours he is acting in the public interest by factually and accurately informing the public.
3. The third point, no doubt, will be contested on appeal to the UK Supreme Court with regards to the assurances given by the US Government. One might cynically but factually question – did Colin Powell as representative of the US Government not assure the UN Security Council that Saddam Hussein had WMDs? But, more to the point. There is the case of David Mendoza, who was a Spanish drug trafficker wanted by the US. The US Government not only assured Mendoza that if he surrendered to US jurisdiction he would be permitted to serve his prison sentence in Spain – and – the agreement was placed in writing. This undertaking was prepared as a formal binding legal agreement and duly signed by a US Government representative. Once Mendoza surrendered to US jurisdiction the US Government reneged on its binding word. Mendoza had his lawyers make two applications in Spain and the Spanish court found in Mendoza’s favour. After six years in US custody, Mendoza’s US lawyer approached the US court on the basis of the signed and binding agreement and it was only then that Mendoza was permitted return to Spain as agreed. There are other similar precedents, so in Assange’s favour, his legal team will most definitely be able to argue that the US Government’s assurances and undertaking cannot be taken at face value nor be too readily trusted.
Put the foregoing all together and one ends up with Assange’s imprisonment in the UK in their top prison designed for the incarceration of convicted terrorists. So, for publishing the truth to the world Assange is designated ‘terrorist’. Interestingly, even if the UK’s Government lawyers argue that Assange breached bail, which then requires his confinement, it could still be contended that since the seeking of asylum is a legal right afforded to all, which the Ecuadorian Embassy did extend to Assange, he could not logically be submitting to UK bail conditions while simultaneously accepting the asylum extended to him by Ecuador. Anyway, all said and done this is a ‘POLITICAL CASE’ writ large in big, bold letters and there will be a lot of politics played behind the scenes between the US and UK Governments and full frontal too in the UK judicial system before the saga is completed.
The American, Anne Sacoolas, left the U.K. shortly after a crash in which Harry Dunn was killed and she claimed diplomatic immunity. Sacoolas had diplomatic immunity which was asserted on her behalf by the US government following the collision – and – she was a US intelligence officer as was her husband. Now, the preliminary evidence suggests that Sacoolas ran into Dunn while he was riding on what the Brits call a ‘moped’ ( his mini bike or scooter). He was a teenager. She was charged with causing death by dangerous driving. So what did Sacoolas do? She fled Britain and the US Government covered her behind diplomatic immunity. She was removing herself totally from British jurisdiction. What then happened with Harry Dunn’s mother and father? They were grieving over the loss of their son and they went all the way to the White House and spoke to then President Donald Trump (he would presently say that he is still the legitimate President of the US) and Trump declined to use his Executive authority to waive diplomatic immunity. The story worsens – there is no assured happy ending. What the Dunn family, quite intelligently did was to secure a ‘red notice’ from INTERPOL ( i.e. the International Criminal Police Organisation “for fugitives wanted either for prosecution or to serve a sentence.” ). In legal terms, if Sacoolas left the US then she could be arrested pursuant to an international arrest warrant. But, here is the point. President Biden succeeds Trump ( but not in Trump’s mind as internationally professed ) and Biden continued – at least for a while – with Trump’s policy of not waiving diplomatic immunity to have the UK’s extradition application advance and then bring the matter to trial in a British court. The legal position has now changed and Sacoolas has agreed to an 18th January, 2022 trial by virtual link. So – if she is convicted to a custodial sentence – what then? What upholding and respect for the rule of law – none – yes/no? So, let us then examine the total picture under both international and domestic law. Above – you have seen the clear video evidence of a dozen innocent lives being claimed on an Iraqi street; you are now aware of Harry Dunn’s family’s grief over the loss of their son; and – having over a forty year plus legal career of legal defence in the courts – I can well and truly invite you to ask yourselves – where is the justice? Maybe some ultimately?
In how the US has worded its so-called ‘undertaking’, it has imposed a ‘get out of jail free card’ for itself, with regards to Julian Assange. Any lawyer with a modicum of experience would never submit to such an agreement. The system ( both US and UK- where actually I studied) now clearly lack an iota of credibility in Assange’s case and continue to pursue a self-righteous path which denigrates, belies and compromises the best of their own legal principles. Sad to say.
I believe that the implications of this case go well beyond the narrow political minds of the UK Judges who sat and disgracefully ruled in the UK’s Court of Appeal.
We shall see in the fullness of time how this legal saga ends for Assange in particular and journalism in general.
Courtenay Barnett is a graduate of London University. His areas of study were economics, political science and international law. He has been a practising lawyer for almost fully forty years, has been arrested for defending his views, and has argued public interest and human rights cases.