Pearls and Irritations

Documents obtained under FOI applications have revealed a worrying side to official Australian efforts regarding WikiLeaks founder Julian Assange.In September 2021, DFAT became aware of media reports detailing CIA planning to murder Assange in London. The plot revealed to journalists working for Yahoo News, who spoke to over 30 intelligence sources, involved consideration by CIA of plans to poison Assange in the Ecuadorian Embassy or to shoot him should he attempt to flee.

DFAT documents obtained by Declassified Australia do not show indication of any representations advocating for the life of Assange following this development. That is however not to say representations did not take place elsewhere.

Now that Assange faces imminent extradition to the United States, another death risk arises.

There is the distinct possibility of further charges being laid against Assange in the US. Recall that 17 additional charges were later added by US authorities to the original charge he was arrested for in the Embassy in 2019.

Reports last year showed Federal Bureau of Investigations (FBI) investigators were continuing to interview further witnesses seeking potentially new evidence against Assange. The likelihood of further charges once extradited to the United States must be considered a real possibility.

Although the State of Virginia, where Assange will be held and will face court if extradited, has abolished the death penalty, several Federal laws that could be used to lay further charges still carry the death penalty and those laws have precedence.

UK law however does not allow the extradition of a person to any jurisdiction where they may face the death penalty. It is not known how, or even if, the UK court will address this possibility of new charges attracting the death penalty in assessing the US extradition request.

This real fear is believed to be part of the final appeal being made by Assange’s legal team as it enters the UK High Court this coming week.

Last minute effort

In a surprising last minute effort to save Assange, the Australian parliament last week approved a motion calling for his release.

On 14 February, Independent Andrew Wilkie put a Private Members Motion concerning Julian Assange to the Australian House of Representatives. It passed by 86 votes to 42, including Prime Minister Anthony Albanese’s vote in favour.

The terms of the motion:

 a, On 20 and 21 February 2024, the High Court of Justice in the United Kingdom will hold a hearing into whether Walkley Award winning journalist, Mr Julian Assange, can appeal against his extradition to the United States of America;

 b, Mr Assange remains incarcerated in HMP Belmarsh in the UK, awaiting a decision on whether he can be extradited to the USA to face charges for material published in 2010, which revealed shocking evidence of misconduct by the USA [emphasis added]; and

 c, both the Australian Government and Opposition have publicly stated that this matter has gone on for too long; and

2. underlines the importance of the UK and USA bringing the matter to a close so that Mr Assange can return home to his family in Australia.

Documents obtained under Freedom of Information laws reveal DFAT officials in September last year describing the Australian parliamentary delegation that visited Washington DC to advocate for Assange’s release and return to Australia as ‘one member is a Government backbencher, the delegation is not representing and carries no mandate from the Australian Government or the Australian Parliament’.

This is no longer the case. When Wilkie flies to London for Assange’s hearing this week and fronts the media, he does so with a clear mandate of support for Assange from the Australian Parliament.

The potential consequences facing Assange if he is extradited from the United Kingdom to the United States were flagged by the Foreign Minister, Penny Wong, three years ago while in Opposition. In a Senate Estimates exchange she also asked: “What expectations or requests have been made of the United Kingdom in respect of terms of any extradition?”

Wong emphasised to DFAT officials the potential for Assange to face a cumulative penalty which is “effectively the rest of his life” and “you’re not executed but it’s 100 and something years which is effectively imprisonment until you die.”

Wong asked DFAT officials about any representations relating to any conditions that might be associated with any extradition. DFAT confirmed that no representations had been made.

This even though DFAT officials were aware that under UK law a person can’t be extradited to another country if they are to face the death penalty, acknowledged that federally the US still has the death penalty, and conceded that there was a possibility that more charges could be laid against Assange if extradited to the United States.

It remains unclear whether the current Government or Foreign Minister Wong herself has made any representations to the UK government about the terms of any extradition should that be ordered by the UK High Court this week. Likewise, notwithstanding the dire personal consequences for Assange of landing on US soil, we don’t know whether a post-extradition plea deal is still being considered.

US federal offences punishable by the death penalty include espionage. Even when it was looking at expelling Assange from its embassy, the Ecuadorians sought an assurance from the US that he would not be subject to the death penalty. An oral assurance apparently was given at that time, although the allegation against him then was limited to a charge of computer hacking and did not extend to the subsequent charges under the Espionage Act.

Greg Barns SC, Advisor to the Australian Assange Campaign, tells Declassified Australia that, “The importance of ensuring Julian Assange is not convicted in a US court is monumental in terms of not only media freedom but extra territorial reach by the US in seeking to shut down publishers and journalists who are not American citizens and who have not published from there.

“If the Assange prosecution is successful then every one who reveals material about the US’s defence and security operations will be vulnerable to an extradition request.”

What comes next?

So how does Assange now stand with respect to the possibility of a death sentence being imposed? We can get some guidance from the US Congressional Research Service’s updated report on Federal Capital Offences: An Overview of Substantive and Procedural Law published on 5 July 2023.

The US could argue that Assange’s publishing activities constitute espionage as a capital offence because it involved disclosing information relating to elements of US defence strategy with the intent to injure the United States or aid a foreign government, or communicating national defence information to the enemy in time of war.

There is no prerequisite that anyone be killed as a result of the activity, which is the case here where the US is unable to prove that any person was killed or harmed as a result of Assange’s publications, and since 1954 it doesn’t matter whether the espionage was in peacetime or wartime.

Whether additional charges attracting capital punishment can be presented is however a little more complicated if Assange is extradited to face the charges in the current amended indictment. Article 18 of the US-UK Extradition Treaty incorporates the rule of specialty under international law, which is to the effect that subject to specific exceptions a person extradited under the Treaty may not be detained, tried, or punished in the Requesting State except for an offence for which extradition was granted, or a differently denominated offence based on the same facts as the offence for which extradition was granted, provided such offence is extraditable.

If capital offences are ‘non-extraditale’ in the UK, then so far so good. However, the treaty does permit the executive authority of the requested state (the UK) to waive the rule of specialty and consent to the person’s detention, trial or punishment for a different offence, even if the usual and preferred practice of the UK may be not to waive the rule of specialty absent a specific treaty provision authorising waiver. Unfortunately the conduct of both the US and UK authorities at virtually all levels in Assange’s case have been far from ‘normal’ or ‘usual’ so it really is not safe to rely on any assumptions of regularity or assurances.

Under US federal law, the death penalty can be applied regardless of whether the state in which the trial occurs has its own death penalty laws. Certain crimes under federal jurisdiction, including espionage, may attract the death penalty even if the state where the trial takes place does not have the death penalty.

Hence it is no comfort at all to Assange that the State in which he is tried “does not have the death penalty” as the US government can still pursue capital punishment as a potential penalty. In fact, from 1988 to October 2019, Federal juries applied the death penalty to eight people convicted in states that did not have the death penalty.

The application of the death penalty is subject to specific federal statutes and the decision to seek the death penalty is typically made by the US Justice Department’s Capital Review Committee and approved by the Attorney General.

Given the antipathy expressed and demonstrated by innumerable Republican and Democrat US legislators over more than 10 years, given the way the US has previously backtracked on assurances given to courts in other extradition cases and given the uncertainty about who might be occupying the White House in 12 months’ time, could Assange, or could an Australia seeking “assurances”, really rely on any assurance from the US unless it was in writing, unequivocal and unqualified?

More than two years ago, Yahoo News revealed that then CIA under Director, Mike Pompeo – who is Australia’s new strategic adviser to AUKUS – was plotting to kidnap or murder Assange in 2017. Australians have never received a satisfactory explanation about what and when the Turnbull Government knew about that egregiously unlawful US plot against an Australian citizen, and whether it took any action in response to the revelations.

All we know is that former Prime Minister, Malcolm Turnbull, and former Foreign Minister, Marise Payne, claimed they only found out about the CIA’s plans “in the media”. Certainly there was no public outrage directed by the Australian government towards the government of ‘our closest ally’.

An FOI request lodged with the Department of Foreign Affairs & Trade on 4 October 2023 for documents relating to the Yahoo News investigation identified one relevant document. Access to it was denied for reasons including the statement that, ‘the document includes content which was provided in confidence by an external third party to a diplomatic officer of the department.’

End of story? Not by a long shot.

Holding the CIA to account

Irrespective of what happens this week in the UK, the case of Kunstler v CIA continues in the United States. In December last year, the CIA lost its bid to throw out the lawsuit against it for violating numerous rights of people who visited Assange at the Ecuadorean Embassy.

The discovery process in that ongoing litigation almost certainly will unearth many informative documents about the matter. The case may also provide an opportunity to compel former CIA chief Pompeo to give evidence. Revelations in those proceedings may well prove very embarrassing for the Australian government.

The stakes in the Assange case could not be higher for journalists everywhere. The outcome will determine whether the US can seek to extradite any journalist of any nationality, from anywhere with which it has an extradition treaty, for disclosing US war crimes.

And if Assange is extradited and forced to pleading guilty to some charge in exchange for a relatively lenient Australian served sentence, it implicitly endorses the US claim that its laws have global reach over journalists everywhere. There goes any “free press” and any real prospect of keeping power accountable.

Finally, unless the Australian Government can stop the extradition by the UK or the prosecution by the US or both, it will also show that our ‘alliance’ with them is little more than our subservience.

 

Republished from DECLASSIFIED AUSTRALIA, February 19, 2024