Q1) Do you think that if the vote on Iraq had been a genuinely free one, the
government would have been defeated?
Q2) Do you think that if the vote to trigger Article 50 had not been whipped, the
result would have been different?
A) Yes to both (former government whip).
Chapter 3: Case Studies: https://consoc.org.uk/wp-content/uploads/2023/05/Cracking-the-Whip.pdf
Appeal against extradition heard by (senior) judge Victoria Sharp and judge Jeremy Johnson.
Lawyers for Assange: Edward Fitzgerald and Mark Summers
Lawyers for the US: Claire Dobbin and Joel Smith
Contemporaneous notes/tweets from the hearing, in chronological order. Spelling has been tidied up and hash tags removed.
DAY ONE 20/2/24
Plagued with problems for those trying to watch via video link. Finally managed to hear some of it. Richard Medhurst (@richimedhurst) has details but a few things which struck me today, when I finally got the link to work.
The numerous sources listed showing publishers of classified info have never been prosecuted. That this inditement was unforeseeable in 2010.
That the previous judge (District Judge Vanessa Baraitser) simply refused to deal with ‘flagrant’ violation of Article 7. That ECHR at Strasbourg would consider Chelsea Manning covered by whistleblower protection. Judge here questions whether she was ‘actively’ seeking info, rather than just coming across it –
– which is irrelevant, as Manning would still be covered. The underscoring of the fact that there was no evidence that anyone was harmed, the ‘extraordinary efforts to redact’. The fact that the previous judge never addresses the balance of public interest
The monumental, unprecedented scale of that public interest – exposing ongoing war crimes – murder, torture. Although the judge had the authorities on this. Assange’s ‘conduct’ was in giving accurate, reliable, not spun, not edited material
The idea of what to the ECHR would be a ‘disproportionate and grossly disproportionate’ sentence – which would last for the rest of Assange’s life- also engages Article 3, as well as most heavily, Article 10
DAY TWO: 21/2/24
Surreal to hear the ‘case’ against Assange being laid out after it was so effectively demolished yesterday. Focusing on Chelsea Manning again: who has been pardoned. (NB correction: Ms Manning was actually granted clemency.)
After initial problems with the mic, everyone can now hear Claire Dobbin, for the US, clearly, along with someone wheezing horribly over the top. Suitable counterpoint for the leaden recital of material already shown to be irrelevant & claims that Assange is not a publisher, so there
Suggestion that Ms Manning would somehow just be treated as a ‘whistleblower’ is ‘unrealistic’ – just an opinion voiced, no authorities given, not what Strasbourg would conclude as demonstrated yesterday.
Dobbin: this goes far beyond the acts of a journalist merely gathering information. Again, no sources, witnesses invoked yesterday who all said these were absolutely normal acts of journalism ignored.
“curious eyes never run dry” Dobbin quotes Assange saying to Manning. An odd little phrase on which to try and condemn a man. Quite apart from the fact that lawyers demolished the issue of harm yesterday
Again, Dobbin back on the issue of the possibility of causing harm through publication. Has never been used in a prosecution (as I remember from yesterday), even with the guy who hunted down and exposed CIA members.
Effectively “although his prosecution may be unprecedented, it rests on precedents”. No immunity for journalists, never mind Article 10, apparently
Accusation that the prosecutor has lied by saying this is not a political prosecution; again a concentration on the names released. “When they announced the prosecution it was on the basis that they did not regard the appellant as being a journalist”.
Attempt yesterday to minimise harm done by release of names, says Dobbin. But people had to move homes. Some lost employment. Some have disappeared but there is no proof that this was linked to publication, she admits.
Basically just an assertion that Assange is not a publisher or a journalist, and a continuation of recital of the ‘harms’ done by disclosures; people ‘put at risk’. Broader consequences for US ability to gather information from individuals, too. Chilling effect
Assertion that evidence demonstrates profound consequences extending beyond the human cause (?) and extending to US ability to gather information from sources
The appellant now faces the 2nd superseding inditement; the allegation is not just that he conspired with Miss Manning to steal &disclose information, but engaged in conspiracy with others to hack, and recruit other hackers and leakers. Not conventional journo/publisher
No mention by Dobbin so far of what would have been put in the balance by the Strasbourg court: what those disclosures were, what level of criminality/crimes they exposed and what the public interest is overall in having access to them
Where is Dobbin getting the definition for what makes ‘a responsible journalist’? GBNews? We don’t know. Just an assertion that the findings are ‘unimpeachable’. But if this were espionage, as set out yesterday, espionage is a political issue and not one for deportation
Dobbin: Essence of the case: the material that he published unredacted attracts no public interest whatsoever
Judge Jeremy Johnson intervenes to say surely other people had published names before the appellant did. Dobbin effectively: “he is free to pursue that in the United States”. Critical point is that the appellant obtained the material and he is responsible
Dobbin “2003 act expressly omitted the political offence exception”.
Attempt, says Dobbin, to resurrect a bar which parliament has expressly removed. Judge JJ asks for parliamentary detail. Dobbin: Fundamental position is that you don’t even get to parliamentary material as wording unambiguous.
Dobbin: a 1996 case before Lord Mustill, foreshadowing 2003,says political offence exception ‘out of date’. Exception features in the Trade and Cooperation agreement which sets up a presumption that the political offence exception will not apply
Statute must be applied regardless of terms of any treaty, says Dobbin. “Unarguable” as already been determined by case of Norris (?) in which reliance was being placed on the 1972 treaty as providing an enforceable right but High Court concluded that the act of 2003 stood alone.
Dobbin very unclear about whether this is, as alleged yesterday a process in ‘bad faith’. Mainly repeating that domestic law trumps international law, effectively.
Dobbin: None of the other exceptions have any application here. In Kuwaiti airport case it was a UN resolution (?) and UK parliament wanted to support it. Not the case here. UK has indicated that there will not be a political exception
Statutory language – Dobbin acknowledges that extradition is barred if it is for political reasons or to get them to punish or persecute them because of their political opinion
is this prosecution really just a front or an artifice to punish the appellant for political reasons? asks Dobbin. Apparently there has to be a ‘fundamental assumption of good faith’ when it comes to the US as one of the most long-standing partners of the UK.
Dobbin: I reiterate the point that the administration of US has changed but prosecution of appellant remains firmly on foot. District Judge rejected allegations that pressure had been brought to bear on prosecutors. She pointed to praise of the appellant & Wikileaks
The US has given assurances that Assange will be transferred to Australia “after he has been convicted” says Dobbin. High hopes of a fair trial in the US from their lawyer, then,
Dobbin goes on to Article 10. The ‘frontispiece’ of this appeal. Point remains impossible after ruling of District Judge, who took all this into account (tho yesterday this was demolished). Dobbin goes on to what is ‘ordinary journalism’ again.
Dobbin asks what ‘ordinary journalism’ is; has no answer but Assange/Wikileaks is not it. Overlooks numerous witness testimonies showing Assange/Wikileaks operating as journalists/publishers – not like the Sun hacks, admittedly. Encouragement and incitement to steal
Incitement to steal material says Dobbin, puts Assange ‘at one end of the scale of gravity’ (whatever that means). Apparently journalists don’t encourage sources to ‘steal’ information, (which from my own experience is nonsense, again – what is ‘stealing’ info?
Court must ascertain whether appellant’s actions capable of causing damage to national security, says Dobbin – apparently this trumps the public interest
‘Was the material capable of causing considerable damage to national security’ says Dobbin. Journalists not exempt from obeying national law, she says, which is not the point.
If a journalist breaks criminal law they have to be aware that they must face consequences says Dobbin. Repeats again that the publication of names (where is that Guardian journalist?) ‘not in the public interest’.
Dobbin tries to deny that Manning was a whistleblower at all. ‘No issue here, unrealistic’ etc. She didn’t do anything to protect those people says Dobbin. Also these are national security documents. Assange being done for complicity in unlawful actions of Manning
Dobbin: District Judge bound to categorise Wikileaks & the appellant in the way she did and right to lay weight on the password hash cracking, and right that the problem with the appellant’s arguments was that he arrogated to himself to decide what was in public interest
No public interest argument available in this jurisdiction, says Dobbin.
Dobbin: Even if you were to look at it through the lens of Article 10 this would not be a flagrant breach. Judge JJ intervenes. “If in this country a journalist had information of very serious wrong doing by an intelligence agency and incited a employee for information”
Judge continues: “and it was published, do you say that this would be incompatible with Article 10? The submission you’ve just made has no scope for fact balancing exercise, Article 10 has no role to play is that your submission?”
Dobbin cites Shayler. Judge JJ says “do you accept that a journalist may be in a different position?” Dobbin: “Yes, I can accept that”
Dobbin: US law does not allow journalists to commit crimes in order to obtain material. It does not confer any immunity – earlier she was arguing that Assange was not a journalist, of course.
Dobbin: the judge said that the constitutional protections in US are analogous to those provided by Article 5. Someone in the court laughs rather hysterically, perhaps thinking of the 35 year sentence for Chelsea Manning
Dobbin tries to bring in a reference to Truro. Judge Victoria Sharp dismisses this, as Summers had yesterday, apparently rather amused by it, go figure
Judge JJ: The test in 81B is that he might be prejudiced on grounds of his nationality & you have prosecutor himself saying a foreign national might not be covered by 1st amendment – asks Dobbin if that isn’t difficult to reconcile, effectively.
Dobbin waffles in reply about ‘the tenuous nature…just a possible argument”. Can provide no case law about treatment of foreign nationals by US.
Judge VS asks Assange’s Fitzgerald to clarify – fairly inaudibly, he reiterates the case for public interest and that the prosecutor in USA could argue that Assange doesn’t have any rights as he is a foreigner. You wouldn’t have a defence of public interest
Dobbin says that they need to be a bit careful about lack of freedom of speech/public interest defence (having done nothing so far to address them). Judge VS asks for point to be sorted out. Court rises
LUNCH
Everyone fiddling with mikes. Dobbin, without wig, looks around rather wistfully, puts it on. New lawyer for US, Joel Smith, takes over, very loudly, judge inaudible.
Smith says rights which would be afforded to Assange in US greater than here in UK, how lovely of them. Large amount of feedback, but judge now audible.
Grounds that applicant would risk being punished is a ‘specialty’ argument says Smith. Article 6 advanced yesterday, not speciality, but that was not formerly the case.
Oooh headers in previous submission specifically invoked ‘speciality’. Article 6 was not centre: now features far more prominently. Speciality argument is doomed to fail, says Smith. Cites cases. Legal principles established in Welsh (? name not country)
Speciality protection is how an individual will be dealt with including punishment. UK courts must decide – not a bar to extradition to the US
Judge VS: your submission is speciality or nothing, is that right? Smith: Yes. He then goes on to say that even if Article 6 is relevant, it does not apply? Article 6 (2) does not apply to sentencing procedures unless it amounts to bringing a new charge
Smith says don’t worry about Article 6 (2). Article 6 (1) deals with fair trial – the applicant will be entitled to a fair trial, says US’ lawyer.
Smith: a sentence of 175 years could be achieved by totting up maximum for every offence – but he doesn’t see that will happen so that’s OK.
Apparently ‘avoiding disparity is a key factor in American sentencing’ – Manning sentenced to 35 by a military tribunal, would’ve been eligible for parole after a third . No eligibility for parole in a civilian court, which is good apparently. 11 -12 years likely for Assange
Smith: no doubt that the offending this applicant is alleged to have done is serious. Only basis on which it could be said that sentencing in the upper echelons would be valid would be on aggravated grounds. Smith seems fine with that prospect. Offence is grave
Smith now getting fairly emotional about damage of unredacted names: people moving homes, accounts frozen etc. Beyond anything UK court has had to grapple with. It cannot be said that any of range of sentences would be grossly disproportionate.
NB At some point around here, unclear from watching on video link, Ben Watson, KC, takes over from Smith, on behalf of the UK Home Secretary.
Does not engage Article 10 at all, allegations in the case do not reflect responsible journalism. Nor is this a whistleblower case, he says. Again, no sources, no authorities, no reasons, just statements.
Again cites ‘criminality looked at holistically’ – hacking, collusion etc at very top end of the spectrum. ‘Grave and unprecedented criminality’. Says that Dobbin addressed balancing exercises re Article 10, which she did not
‘Addresses’ the treaty point. Intention of parliament clear. Language is mandatory. Can be no doubt of terms. Previous judicial scrutiny: Lord Justice Laws confirms ‘unless SoS prohibited by any of 3 matters specified, extradition should be ordered’
Applicant’s points: 1. Treaty not ratified until 2007 after 2003 Act – he argues this is irrelevant. Suggestion that the SoS action known to be prohibited by international law – lawyer says it is a significant overstatement
Judge JJ says he is ‘struggling to keep up’ – with welter & mixture of examples of political offence exception, presumably
Lawyer appears to be simultaneously mumbling and gabbling
Up until now arguments have been pretty easy to follow, even if inconsistent/self-contradictory/previously disproved. This current mish-mash is almost incomprehensible
Lawyer now quoting the MP for Dudley.
Judge JJ – the consequence of your submission I think is that there is a treaty between US and UK that political extradition will not be granted. But if UK receives a request from the US SoS will be obliged to grant it. (?)
Lawyer: Chelsea Manning not now charged with any treasonable offence. Sentence was commuted, Nothing here to suggest that applicant faces a genuine risk of death penalty
Lawyer: repeats ‘no real risk of a death penalty’. Sentence discussed may be at least as high as 30 -40 years but no arguable basis to suggest there is a risk of death penalty. Keeps repeating this.
Lawyer refers to the assurances given by US that Assange can apply for transferral to Australia, becomes briefly inaudible. Judge JJ: if the appellant is extradited is there anything to prevent the charge of aiding and abetting treason/ espionage being added to inditement?
Lawyer (in answer). No. Judge JJ: So if there’s nothing to prevent that, do you accept those charges could carry the death penalty? Lawyer: Yes. Judge JJ: Is there anything to prevent it being imposed? Lawyer: mumbles/ gabbles
Fitzgerald for Assange takes over. Now saying silence of 2003 act on political exceptions not necessarily deliberate.
Fitzgerald: Parliament has not ‘expressly’ precluded, as claimed, reliance on the previous treaty.
Fitzgerald: What’s the basis of detention here? The US has made a request on the basis of a treaty. One can’t ignore the treaty. It is the foundation of the request and the detention.
Fitzgerald: They then say political offence exception was out of date. Fitzgerald explains why Mustill said that, and adds it’s impossible to say that the treaty, same as we’ve made with every other jurisdiction except Kuwait and UAE is out of date – we’re doing it the whole time!
Fitzgerald: treaties extend fundamental protection to individuals. Point was parliament hadn’t legislated to give protection to attempting to obtain by deception. Didn’t afford protection, Article 31 does. It’s abuse to disentitle someone to protection given in treaty.
Fitzgerald cites Pompeo et al and submits a real risk that Assange would not be protected, but would be discriminated against because of foreign nationality, not given protections of a US citizen.
Fitzgerald: Speciality is an age old protection – concept of fair trial a developing modern concept. If court doesn’t regard it (as wrong) to be punished for something they’ve not been convicted of…”If it’s not speciality it can’t be not fair” just semantics
Fitzgerald: Specific risk of a flagrant denial of justice – not just turning down any application for extradition. Risk to life – needs a court’s consideration
Fitzgerald: It would be strange as my Lord put to Mr Watson (?) – in the US I’m being extradited against the terms of a treaty but UK courts are powerless, SoS powerless. Can’t be right, he says.
Summers for Assange: says it’s extraordinary that the reason for this case – exposure of state crime – has not even been mentioned. Learned friend seems to suggest you can ignore all of that because it’s an extradition case, not asylum – can’t understand this.
Summers: When you prosecute for the very publications which have exposed the crime…as in case of Zola a refugee in terms of the Extradition Act. We’ve had no reference at all to the fact that prosecuting someone for exposing that state’s crime means they are protected.
Summers – case inexplicably not prosecuted for 6 years, followed by demonstrably political statements re Mr Assange. Trump praised Assange occasionally when we all know now he was plotting to kill him (court falls silent)
Summers: It was put to you that the US was acting in good faith at all times – we can’t imagine how this could have been said with a straight face. It was plotting to rendition Mr Assange and murder him.
Summers: The fact is there was no indication whatsoever in 2010 that criminal liability may attach (apart from discredited & dismissed Truro example)
Summers: No precedent that info acquired through eg phone tapping has ever been a subject for prosecution as the publisher. So far as harm is concerned that too takes the gov nowhere in terms of Article 7. Conspicuous absence of prosecution eg NYT.
Summers: Article 10: 2 preliminary issues. Much was made about wider allegations of computer hacking. They have never been the subject of our submissions. Our case on Art. 10 is & always has been directed at the Manning disclosures
Summers: If rest of Article 10 disregarded and count 2 stands alone, there would be an immediate submission under Article 8 because he’s already served the maximum time under that.
Summers: Shayler (cited by US): nothing to do with the press. Before Human Rights Act. Strasbourg repeatedly said there must be an Article 10 balancing exercise in these cases.
Summers: A lot of authority at Strasbourg that says in respect of the press and national security leaks there is a duty on court to engage with the public interest of publication itself
Summers: what did you hear in respect of the balance which needs to be undertaken? With respect, not much. Strasbourg would look at district judge case and remove, because the district judge was wrong, all references to Shayler and secrecy
Summers: the court would remove any reference to secrecy, Shayler, secrecy, publication from the scales. What would remain would be harm to sources. Only 3 of the 18 counts. Court would look at reality of sitn, the facts. Extraordinary efforts by Assange & Wikileaks to redact…
…all details, followed a year later by one of the media partners deliberately publishing in his book the key to the media files where those names existed followed by Mr Assange scrabbling around desperately to prevent them being published including phoning the White House.
Summers: no proof that any harm was caused: highest point is that it created the risk, re Article 10 that would go in the scales. On other side horrendous punishment – 30 to 40 years, it’s been said. If you look at guidelines in US starting point is life sentence
Summers: sentence which would shock the conscience of every journalist. And also on that side the harm disclosed – Strasbourg regard exposure of state crimes as highest level of public interest. This was murder, torture, waterboarding etc.
Summers: District judge failed to even undertake the balance. The role of the court on an appeal is significant. Court must assess it de novo. It must come from this court and we respectfully suggest that leave can only be withheld on this in Article 10
Summers; the real ongoing harm and wrongdoing versus the possibility of some harm. Judge JS: references the names again, even tho Summers has just made it clear that was 0 to do with Assange.
Summers: possibility of death penalty: Submission is that there is no real risk. Not in the decision of SoS. Not prohibited as SoS concluded. Mandatory if facts ‘could’ be recharged as capital offence Article 18 (?) is engaged. Assange revealed the crimes that underly this.
Summers: Fourthly the suggestion that there’s something to be read into fact we haven’t made an Article 3 argument out of this is unbecoming.
Summers: opportunistic submission made not in writing but orally: it is said because America has said it will accede to request for transfer it precludes them from instituting the death penalty, it is not true.
Summers: you can’t apply for prisoner transfer if you’ve been killed, We don’t understand why there is no usual, normal assurance on the death penalty in this case
16.21 Court rises. Judge VS: We will make our decision and notify of it. Asks for speaking note, written submissions. Thanks to all. Court rises.
ENDS
tabitha troughton 