Despite the pledge by US lawyers that the WikiLeaks founder could serve his sentence here, Julian Assange could still languish for years in a US prison.
The determination of the United States to extradite WikiLeaks founder and publisher Julian Assange from the UK can only be described as extreme.
It is highly unusual for a state that seeks extradition to present new evidence in an appeal. But in this case the US legal team formally revealed a series of “concessions” as they argued their case before the Court of Appeal in London to overturn the January decision of Judge Vanessa Baraitser to refuse Assange’s extradition.
The US has provided what it calls a package of assurances which seek to blunt the powerful and realistic scenario of Assange being subjected to torture and other forms of cruel and unusual punishment if he lands on US soil. These assurances seek to deal with detention conditions, healthcare, and the pledge that Assange could apply, if convicted, to serve his sentence in Australia.
The idea that the US would allow Assange to serve his sentence in Australia should be examined with a sceptical eye for a number of reasons. But before dealing with these, consider this: While successive Australian foreign ministers and governments have declined (the exhaustive freedom of information efforts of NSW-based lawyer Kellie Tranter are evidence of this fact) to involve themselves in Assange’s case on the basis that it is a matter for the US and UK legal processes, they can no longer do so.
The Australian government is an overt party in the Assange case because as sure as night follows day Washington would have spoken with Canberra about Assange serving a sentence in this country. Prime Minister Scott Morrison and Foreign Minister Marise Payne cannot hide behind the curtain of diplomatic rhetoric any longer. They must reveal the content of their discussions with their US counterparts about the prisoner transfer idea.
As is always the case in the law, it is the fine print and nuance that counts. The US legal team phrased the Australian prison sentence concept this way: Assange could apply for a prisoner transfer to Australia to serve his US sentence. The mechanism would be the Council of Europe Convention on the Transfer of Sentenced Persons to which both Australia and the US are signatories. If Assange did make that application there would also be the International Transfer of Prisoners Act, a Commonwealth law that vests in the attorney-general the power to allow a transfer.
But what is not being said by the US legal team is that such applications take time, often considerable time, to process and be agreed upon by nations. There are no time limits in the convention or in the Australian legislation governing transfers. So Assange could languish in a US prison for years before a transfer was approved.
And what of the other assurances which the US has given to pave the way for Assange’s extradition? Kevin Gosztola, a journalist who has followed the Assange case closely for many years, rightly points to the fact that while the US is now saying that Assange would not be detained at the hellhole which is ADX Florence, a supermax prison in Colorado, and that he would not be subject to special administrative measures or SAMs (described by a Yale Law School report as “the darkest corner of the US federal prison system, combining the brutality and isolation of maximum security units with additional restrictions that deny individuals almost any connection to the human world”), the pledge is flaky.
Gosztola wrote on September 14: “The US government pledged that Assange would not be designated for ADX Florence, the supermax prison. Yet similar to the assurance to not impose SAMs, they indicate if Assange commits a ‘future act’ that meets the ‘test for such designation’ he could still be confined in the maximum security prison. Importantly, the assurance ignores the possibility that Assange would be confined in a communications management unit at Federal Correctional Institution Terre Haute in Indiana or US Penitentiary Marion in Illinois.”
The bottom line is that Assange remains highly vulnerable to torture and death and that the US government’s assurances mean nothing. And if he did end up in an Australian jail, which one? As we know all too well, if you have serious mental and physical illness then prison life ensures your health continues to decline, often rapidly.
Greg Barns SC is an adviser to the Australian Assange campaign