The Assange case has taken another dark turn.
Last week Declassified Australia reported that it was unclear whether the current Australian federal government or Foreign Minister Penny Wong has made any representations to the UK government about the terms of any extradition should that be ordered.
But now a remarkable admission has been made in the UK High Court – and it was missed by most of the world’s media. But it has been reported by alert journalists in independent media.
The legal representative of the UK Home Secretary, Ben Watson KC, in the UK High Court on 21 February last week was unable to provide any assurance to the Court that Assange will not face the death penalty if extradited to the United States.
The High Court judge Justice Jeremy Johnson asked:
“If the appellant is extradited, is there anything to prevent amending the charges of aiding and abetting [a leak]?” Ben Watson KC, who was instructed to represent the U.K. Home Secretary, replied, “The short answer is no.”
“Do you accept that those charges could carry the death penalty?” Johnson asked. “In principle, yes,” Watson answered.
Johnson asked, “Is there anything that can be done to prevent a death penalty [from] being imposed?” “It would be very difficult to offer assurances to prevent the death penalty from being imposed,” Watson admitted.
As a consequence, the current Australian government cannot have received any verbal or written assurances in that respect.
“It would be very difficult to offer assurances to prevent the death penalty from being imposed.”
Assange’s lawyer, Jennifer Robinson, reinforced that on Democracy Now on 23 February 2024, saying that:
“The US government’s case was, “Well, it’s not likely he’ll be subjected to the death penalty.” And the judge asked the question, “Well, is it possible he could be?” And they said, “Yes.” And then said, “Well, what protection is there against it? Why is there no assurance?” And they said, “Well, there is no assurance.”
“So there’s actually — I think there’s quite a lot of grounds for the judges to go on here. So, I was quite surprised that the US government was unable and had not prepared, was not prepared to answer some of these questions.”
Previously the official Australian position had been made clear when then Defence Minister Marise Payne said Australia remained “completely opposed” to capital punishment, and noted the UK had sought, as opposed to having received, assurances from America that Assange won’t be exposed to a death sentence if he was sent there. She told reporters:
“The extradition process itself is a matter between the United States and the United Kingdom, but we have also been provided with that advice from the UK. Australia… is completely opposed to the death penalty and that is a bipartisan position and one which we have continued to advocate.”
However, to the contrary was US Secretary of State Antony Blinken’s condescending rebuff to whatever entreaties may have been made by ministers Penny Wong and Australian Defence Minister Richard Marles, at the press conference after last year’s joint Talisman Sabre military exercise:
“I understand the sensitivities, I understand the concerns and views of Australians. I think it’s very important that our friends here understand our concerns about this matter.
“And what our Department of Justice has already said repeatedly, publicly, is this, Mr Assange was charged with very serious criminal conduct in the United States in connection with his alleged role in one of the largest compromises of classified information in the history of our country.
“The actions that he is alleged to have committed risked very serious harm to our national security, to the benefit of our adversaries and put named human sources at grave risk, grave risk of physical harm, grave risk of detention.
“So, I say that only because, just as we understand sensitivities here, it’s important that our friends understand sensitivities in the United States.”
“I think it’s very important that our friends here understand our concerns about this matter... Mr Assange was charged with very serious criminal conduct in the United States.”
Vault 7 charges can still be laid
Conveniently, that characterisation of Assange’s conduct fits rather nicely with the provisions of the US Espionage Act that do attract a potential death sentence.
The prospect of an Australian citizen, journalist and publisher being extradited to United States – our major ally – with the possibility of being sentenced to death stands in stark contrast with Australia’s bipartisan position and widespread global consensus on that issue and must force the Government’s hand. It has no choice but to resolve this matter politically as a matter of urgency.
In 2018 UK foreign secretary, Jeremy Hunt, and his predecessor Boris Johnson, both signed letters sent to the Ecuadorian President dated 7 March 2018 and 10 August 2018 respectively, confirming that according to British legislation a person cannot be extradited if they could face the death penalty. The letters were virtually identical:
“You have expressed concern that, should Julian Assange be extradited from the UK, there would be a risk that he could be subject to the death penalty. I can confirm that under UK law, a person’s extradition cannot be ordered if the person concerned will be subject to the death penalty.”
No doubt the Ecuadorian government relied on such assurances when deciding to expel Assange from the Ecuadorian embassy in 2019. These written assurances – provided by one Government to another – were false and meaningless.
“If Julian is extradited and additionally charged for the release of the Vault 7 documents, it could result in additional charges that merit the death penalty for aiding and abetting the enemy.”
The US government is yet to charge Assange for the 2017 ‘Vault 7 CIA Hacking Tools’ publications even though those publications were the catalyst for CIA plans to kill or kidnap him from the Ecuadorian Embassy that same year and to label Wikileaks a “non-state hostile intelligence service”.
It’s unlikely the Vault 7 publications has slipped the collective minds of those in Washington. As veteran US journalist Chris Hedges reported on 21 February, 2024, Edward Fitzgerald, Assange’s lead lawyer told the court:
“If Julian is extradited and additionally charged for the release of the Vault 7 documents, it could result in additional charges that merit the death penalty for aiding and abetting the enemy.”
Too little, too late
Australian High Commission Officials who attended Julian Assange’s legal proceedings in the UK High Court in London on 20 and 21 February 2024 heard that Julian Assange was too unwell to attend, and that the US maintains that he doesn’t have First Amendment protection even though the US Bill of Rights doesn’t specifically restrict the right of free of speech to US citizens.
They further heard that there had been plans in place for the US to kidnap and/or assassinate Assange which weren’t denied, and that he could face additional charges that potentially attract the death penalty with the US unable to offer any assurances to confirm otherwise.
Nils Melzer, former UN Special Rapporteur on Torture, noted in ‘The Trial of Julian Assange: A Story of Persecution’ that at the last hearing three seats reserved for the Australian diplomatic representation – the Australian High Commission –remained vacant. So the presence of representatives of Australia’s High Commission at last week’s hearing at least represents a positive shift. Or an increasing concern.
Even more positively, Prime Minister Anthony Albanese, said publicly he has worked with Julian Assange’s legal team to strategize how to free Assange:
“I’ve engaged with his legal team on a regular basis as well, on a strategy to try to get through this and come out the other side in Assange’s interests.”
It remains to be seen whether that involves a plea deal or a political solution. However Declassified Australia has not been able to confirm with the Assange legal team the fact of or the precise nature of any ‘strategising’.
‘No shift’ in US mood
This is all on the back of several key developments: the Australian Parliament passing an independent motion for this matter to be brought to end; a bipartisan group of US congresspeople writing to US President Joe Biden warning that he risks damaging the US-Australia alliance and weakening press freedom unless his administration abandons its pursuit of Assange; and new law firm Squire Patton Boggs being hired to directly lobby the Justice Department on Assange’s behalf.
But is the message getting through to Washington?
Bruce Wolpe, Senior Fellow at the United States Studies Centre (USSC), did not reveal whom he was being briefed by in Washington, but said the US attitude to Assange has not budged at all.
Just three days ago he revealed to ABC’s Afternoon Briefing that:
“We haven’t reached the final point of decision on this and so as long as there’s some time and opportunity, there’s still hope. But the fact is that Merrick Garland’s attorneys in the High Court in London made the most stringent arguments echoing everything Julian Assange has been charged with in asking the Court to extradite him to the US. So there was no daylight between what was and what is as far as the Justice Department public posture is.
I’ve also taken some soundings in Washington: Has the political mood shifted at all? And unfortunately the answer is no [emphasis added]. There have been no new statements by any Senior Republican or Democratic leaders and as far as the Republicans are concerned he was indicted under a policy developed by President Trump during his Administration and his Attorney, Bill Barr, and there has been no shift from them. I haven’t seen any senior Democrats make any points on this.
For now, I think things are stuck. I think that there will be a moment of opportunity after the verdict is reached (if it does provide for extradition) before that extradition takes place. That would be the moment to see whether there really is any hope for some mercy for Julian Assange.”
Much hangs on ‘British justice’ – and Australia’s influence
There may be a glimmer of hope that “British justice” will finally come through in the US failure to give the High Court any assurance against the death penalty, but that is far from sufficient to properly protect Assange from the ongoing US persecution.
That can only be done by our Australian government showing moral courage in pressing the US to abandon its extradition request, if necessary by reference to our continuing Alliance.
Failing that – and it’s unlikely the US will abandon it, even if our government would step up where it should – then the Australian government must do much more – all it possibly can – to provide Assange with real diplomatic and legal assistance to curtail the US quest for vengeance.
Countries all over the world have openly mocked the hypocrisy of the US vendetta against Assange and called for his release. Australia’s actions will determine whether it is seen by other countries as a credible ‘middle power’, which it aspires to be, or as irredeemably subservient to the US as its inaction until recently has made it appear.
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