Assange's show trial begins in London, extradition to US a near certainty

Consortium News
Mon, 07 Sep 2020 00:00 UTC

Julian Assange

Judging by the first week of hearings in February, it doesn't seem to be important whatever the prosecution says or does, or how the defense responds. The decision already appears to have been made.

There can surely be a surprise when the next three to four weeks of hearings in the extradition case of Julian Assange at Old Bailey are completed. There is still every possibility that when the last word is said in court, Magistrate Vanessa Baraitser will decide that the United States has not made its case and that Assange will not be sent to stand trial in Alexandria, Virginia.

But judging from the first week of hearings in February at Woolwich Crown Court, all signs point to a decision already having been made to extradite Assange, and that the next three to four weeks will be simply justice going through the motions to make it appear that the WikiLeaks publisher is getting a fair trial. There is a name for such a thing:

"A show trial is a public trial in which the judicial authorities have already determined the guilt, and/or innocence, of the defendant. The actual trial has as its only goal the presentation of both the accusation and the verdict to the public so they will serve as both an impressive example and a warning to other would-be dissidents or transgressors." (Wikipedia)

Is there any better way to describe what has been happening to Assange than the above definition?

Comment: Many in London and elsewhere certainly see it as a show trial as well, and have been vocal about it:

Several dozen supporters, including his father and partner, as well as fashion designer Vivienne Westwood, gathered outside the courthouse.

The demonstrators chanted, banged drums, and called the prosecution a threat to press freedom. "Assange is the trigger, he is shining the light on all the corruption in the world," Westwood said. Speaking outside the Old Bailey, the WikiLeaks founder's father, John Shipton, said the extradition hearing was an "abuse trial."

As the hearing resumed, 'FreeAssange actions' were scheduled to be held in London, Adelaide, Berlin, Brussels, New York, Paris, Rome, San Francisco, Washington DC, and other cities.

New Zealand kicked off global protests to mark the commencement of the extradition case against Assange on Monday. Free Assange NZ has written an open letter to New Zealand's MPs and government saying that 'a call for Assange's freedom' would be a major achievement as New Zealand is a partner within the Anglo-American alliance.

[...]

Tweeting in response to the court developments, NSA whistleblower Edward Snowden called the case a Kafkaesque "show trial," adding that the "judge permits the charges to be changed so frequently the defense doesn't even know what they are."

A Weak Case

The prosecution's case against Assange is exceedingly weak, but it doesn't seem to matter. In the first week, America's British lawyers didn't mention the only technicality that Assange can really be charged with: unauthorized possession and dissemination of classified information.

That's because it's a charge that directly implicates the rest of the press, which for years has possessed and disseminated secret material and never faced charges. It was an issue so much in the forefront of U.S. thinking that it had its Queen's Councillor directly address the press gallery at the beginning of February's proceedings to try to convince the reporters that they were not a target.

But making such an appeal introduced the very notion that the press is indeed at risk in this case. Without the unauthorized possession charge, there isn't much left for the U.S. to work with. That would be a problem if this were a serious judicial proceeding.

Informants

So the U.S. has a couple of fallback positions. One is to accuse Assange of recklessly endangering the lives of U.S. informants in WikiLeaks releases. There is a great deal about this in the Espionage Act indictment. Except informants aren't mentioned in the Espionage Act and among the statutes cited at the head of the indictment, none mention endangering informants' lives.

That's because there does not seem to be any law against it. But even if there were, we know from Australian journalist Mark Davis that it was Assange who was most concerned about redacting informants' names and did an all-nighter on the weekend before publication to cut as many names out as possible.

There is also the fact that former U.S. Defense Secretary Robert Gates said the WikiLeaks releases caused no harm beyond embarrassing Washington and other governments.

Rules of Engagement

The prosecution has so far not mentioned the leak of the Collateral Murder video and the reason for that is probably because the video, which presents prima facia evidence of a U.S. war crime, was never classified, and thus not a breach of the Espionage Act.

The prosecution seemed instead to indicate in the first week that they would make a big fuss about Assange publishing the classified rules of engagement regarding the Collateral Murder incident. Those apparently were classified. But the defense has argued that Chelsea Manning leaked the rules, and they were published by WikiLeaks, precisely because they show that the U.S. broke them in gunning down those civilians on a Baghdad street.

Conspiracy to Commit Computer Intrusion

The other fallback for the prosecution is to press the case that Assange conspired with Manning to break into a government computer to steal government documents. The indictment against Assange makes crystal clear that Manning already had legal access to those documents, and that Assange was only helping her to sign in under an administrative name to protect her identity.

The defense then dropped a bombshell in February, asserting that the purpose of the exercise was not to steal documents, but to allow Manning to illegally download music videos and video games, which are forbidden to active duty U.S. personnel. It will be interesting to see where this charge will wind up.

No Access to Lawyers

In a serious proceeding, Assange would have been allowed access to his attorneys to prepare his case. But the British prison system has not allowed this in the weeks leading up to today. Assange was given a read-only computer whose keys were glued shut, and when he happened to get a legal document, it was confiscated from him, at the time he was stripped search and handcuffed 11 times before a hearing in February.

These are not the actions of a judicial system that is serious about seeing justice done.

We are still waiting for a just outcome but are bracing for one long ago decided.

Comment: What kind of court case prohibits the accused from having access to one's lawyers?! And yet, that's exactly what's happening:

His lawyers say they have been given insufficient time to examine a new US indictment. They argue that the prosecution is politically motivated and that Assange is being pursued because WikiLeaks published US government documents that revealed evidence of war crimes and human rights abuses.

[...]

Among the lawyers representing Assange are Edward Fitzgerald QC and Jennifer Robinson of Doughty Street Chambers as well as Gareth Peirce of the law firm Birnberg Peirce.

Fitzgerald raised concerns at a preliminary hearing about problems communicating with his client. At one hearing, he said: "We've had great difficulties in getting into Belmarsh to take instructions from Mr Assange and to discuss the evidence with him ... We simply cannot get in as we require to see Mr Assange and to take his instruction."

Assange's US lawyer goes into some detail about how the case is being handled in this interview:

In the interview, Pollack outlines why the U.S. government's position in the case is a "very dangerous one." He describes several aspects that would likely lead one to believe Assange would be denied justice if extradited to the U.S. for a trial and what makes this hearing September so crucial for Assange's legal team.

***

The following is a transcript of the interview with Barry Pollack, who is WikiLeaks founder Julian Assange's lawyer in the United States. It was edited for clarity in a few sections.

GOSZTOLA: What aspects of defending Julian Assange do you focus upon as his U.S. lawyer, and where does your work fit into the larger defense?

POLLACK: I represent him with respect to the charges here. So if the United States were ever successful in getting him extradited to the United States, I would be the one who would represent in court against those charges. Right now, obviously, what is happening is the extradition in the U.K. That extradition, whether or not he's going to be extradited, will be determined by U.K. law, not by U.S. law. He has a team of British lawyers representing him in that proceeding.

I am coordinating with them, advising them on U.S. law, U.S. procedures, what Julian would face if he were brought here because some of that is quite relevant to the extradition proceedings. But they are very much his lawyers in the U.K. for purposes of the extradition hearing. I am his lawyer here in the United States to defend him if and when he is required to face those charges.

GOSZTOLA: And you've, to some degree, represented him before the extradition request?

POLLACK: Yes, I've been part of his legal team for a number of years. He was already in the [Ecuador] embassy when I first started representing him. But I represented him for a number of years prior to the criminal charges or the extradition request having been made.

GOSZTOLA: One of the issues that has become pronounced is we see the U.S. government making this argument that Julian should be denied First Amendment rights while at the same time suggesting they can bring a prosecution under the Espionage Act. But many defense attorneys have defended alleged leakers by claiming the Espionage Act is too broad when it comes to the First Amendment, making First Amendment defenses to try to see how far those might go.

How do you view this dynamic that is part of the U.S. prosecution?

POLLACK: The position that the U.S. is taking is a very dangerous one. The position the U.S. is taking is that they have jurisdiction all over the world and can pursue criminal charges against any journalist anywhere on the planet, whether they're a U.S. citizen or not. But if they're not a U.S. citizen, not only can the U.S. pursue charges against them but that person has no defense under the First Amendment. It remains to be seen whether a U.S. court would accept that position, but that certainly is the position that the government is taking.

In the cases that have been brought under the Espionage Act to date, efforts to build defenses around the First Amendment have been quite unsuccessful. The courts have not [generally allowed or supported defenses] based on the First Amendment. But those are cases where the defendant was a leaker, not a publisher.

This case is unique. The U.S. government has never tried to charge a journalist or a publisher under the Espionage Act.

GOSZTOLA: That raises an important question in my mind, which is, how can someone who is not from the U.S. be expected to submit to these U.S. secrecy laws and regulations, especially when he never signed a non-disclosure agreement?

A key part of these Espionage Act prosecutions are that they are brought forward as strict liability offenses, that he signed something. It seems that there is no evidence whatsoever in favor of the U.S. government that he signed anything to agree to not disclose information.

POLLACK: That's correct. In the cases that have been brought to date, the charges have been against an employee of the government, a government contractor, a former employee of the government, all people who entered into an agreement with the government that they would not disclose classified information.

Journalists don't enter into that type of agreement, and every day the New York Times and the Washington Post publish classified information. The Department of Justice has never charged a domestic reporter under the Espionage Act. Up until the current administration, I think it was widely understood that doing so would be inconsistent with the First Amendment.

Publishers do not have those kinds of non-disclosure agreements. They report what is newsworthy, and that includes classified information that comes into their possession.

What the government is doing here is not only charging a publisher who has no non-disclosure obligation but charging a publisher who is not in the United States. They're charging an Australian citizen, who is publishing from the U.K. So it is an unprecedented prosecution.

GOSZTOLA: What concerns do you have about the U.S. criminal justice system? One aspect is that there are such things as coercive pleas. Are you concerned about what would happen if he was put on trial and the way in which he could be pressured to not go to trial in the United States?

POLLACK: The pressure on defendants in the federal criminal justice system in the United States generally is extraordinary. In a case like this, it would be even greater. There is frequently in the United States a tremendous disparity between the penalty somebody receives if they plead guilty versus the penalty that they would receive if they go to trial and are ultimately unsuccessful.

So there is a tremendous disincentive to go to trial. Approximately 97 percent of all federal criminal cases end in the plea, not going to trial, for that reason.

Here one would expect Julian would be kept in an isolated administrative detention. In other words, he would be in jail effectively under solitary confinement, even awaiting trial, awaiting appeals. Once sentenced and put into the Bureau of Prisons system, he would likely be sent to a maximum security system.

And the potential sentences if he is convicted after trial are extraordinary. He's facing a maximum of 175 years. Under those conditions, it would be very, very difficult for somebody to say I want to go trial, and if I'm unsuccessful, I want to appeal and be heard in the Supreme Court. Even if you were ultimately successful, you would spend years in draconian prison conditions fighting the charges.

Yes, there would be tremendous on him to accept some sort of a deal that mitigated some of those consequences.

GOSZTOLA: If you're the prosecutors, you bring 18 charges. You only have to convince a court that he committed three offenses, and then you've essentially put him behind bars for what amounts to a life sentence because you just consider his age.

Have you gained any greater awareness through being able to work with U.K. attorneys on how out-of-line this is by comparison to European countries in the way that they wouldn't stack sentences that add up to 175 years?

POLLACK: There are all kinds of differences between the way the U.K. would treat this situation and how the United States would treat the situation. Not only is it charged much more aggressively in the United States, but in the U.K., there clearly are public interest exceptions to the publication of state secrets.

In the U.K., it is pretty clear that this would not be a crime, and that certainly will be an issue in the extradition proceeding.

Also, the conditions of confinement in the U.K. are different. In the U.K., if you are convicted of a crime, in this case a nonviolent crime, you would not be held in isolation, essentially solitary confinement indefinitely, potentially for years, potentially for the rest of your life. That would not happen in the U.K.

In the U.K., there is better access to medical care in the prison system. There is better access to mental health treatment in the prison system. So, there are all kinds of differences between the U.S. system of justice and U.S. conditions of confinement and those in the U.K. And I think all of those are likely to come up in the extradition hearing as reasons why the U.K. should not be willing to extradite him.

GOSZTOLA: How would you describe the Eastern District of Virginia? And how do you see the makeup of a possible jury pool as bolstering this argument that justice would be denied to Assange? Can the demographics of a judicial district work in favor of arguing against extradition?

POLLACK: You would have to ask the U.K. lawyers where that fits in terms of extradition law, but there is no question in the United States there are different demographics in different districts. And the Eastern District of Virginia is a district that has a disproportionately high number of Defense Department employees, intelligence community employees, family members of those employees, people who hold a security clearance, etc.

It is certainly not a representative district. If the case were being tried in Iowa, you would have a very different jury pool then you do in Alexandria, Virginia. I don't think the U.S. government is blind to the fact. The U.S. government could have chosen to charge him in any district in the country because the law is when an alleged crime is committed abroad there is venue in whatever district is the first district that you arrive in the United States.

Since Mr. Assange would be brought in custody, the U.S. government could take him to any district they wanted to and have venue in that district. It has chosen the Eastern District of Virginia, and that's not a coincidence. The U.S. government thinks it will get a favorable jury pool in the Eastern District of Virginia.

GOSZTOLA: I could be off in my analogy, but to take an issue that has captivated the country for the last six-to-seven months, it's almost to me like if you had jury made up almost entirely of police officers, and they were hearing a case involving involving an officer who shot and killed somebody. It doesn't seem like we would think it was fair for them to be the only people on that jury.

POLLACK: We would not think it was fair to give somebody in a police shooting case a jury pool that was disproportionately made up of police officers. I think we would also not think it was fair that one side gets to pick which district and which jury pool it wants to have. But that's exactly what the law allows.

GOSZTOLA: Finally, I understand this upcoming hearing that will span three weeks is a very crucial hearing for the legal team. Clarify for me what this hearing means and how essential it is for certain evidence to be brought in order to undermine what the U.S. government is doing.

POLLACK: This is the main taking of evidence regarding the extradition request. So this is essentially the equivalent of the trial for purposes of developing the facts on which the decision will be made whether or not to extradite.

The various legal issues that come into play in extradition: Is this is a political offense? Has there been some sort of abuse of process? Has the government accurately represented the nature of the charges and the allegations to the court? Are the conditions of confinement in the United States comparable to what they are in the U.K.? Is this even a crime in the U.K.?

All of those things that will go into deciding whether or not extradition is appropriate — What's going to unfold over the next three weeks is we're going to hear from witnesses who are going to speak to those issues to inform the court as to whether or not each of those things are in fact true.

Obviously, from our perspective, we hope and believe that the witnesses are going to be very compelling on each of those issues and that each one of those issues militates against extraditing.