The Continued Torture of Julian Assange

Julian Assange's 'permission to appeal' and what it really means

Photo by Samuel Regan-Asante on Unsplash

On Tuesday, the High Court in the UK decided on whether Julian Assange would have ‘permission to appeal’ a lower court’s decision that he be extradited to the United States. Julian is facing charges related to his exposing horrific war crimes committed by the US, gathering information from informants and publishing them on the site, Wikileaks. In effect, he is being punished for good, investigative journalism and revealing the depraved and barbaric crimes of the United States across the globe.

The UK appeal system works by first asking a court if you are allowed to appeal; this is called asking for permission to appeal. This is done by presenting your Grounds of Appeal and if the court thinks they have merit, you will be permitted to appeal on either all or some of them. After 5 years in Belmarsh, a class A, high-security prison designed for the most prolific murderers and criminals, Julian Assange who has been charged and convicted of no crime whatsoever, is still waiting for an actual appeal. They say the wheels of justice turn slowly but in Assange’s case, it is all by design. He is not at the appeal stage. He has merely asked for permission to appeal.

Before going into the decision itself, I want to pause and point out that Julian was too sick to attend court and too sick to even attend remotely. Remotely means on a computer screen. I must really emphasise this point. I myself, have attended court remotely whilst sick from bed. I had horrendous abdominal pain but still made it. I did this more than once. In fact, straight after one of those hearings, I was hospitalised. I have read a relatively recent case where a woman attended remotely from a hospital bed. One can only imagine how sick Julian must be to not even be able to attend remotely. His mental health must be shocking, his body must be shutting down as a result. Julian is truly and debilitatingly unwell.

The problem with political cases - for this is what this is - is that the pressure by state actors upon judges is immense. Not only that, but judges more likely to rule ‘for the state’ are chosen. One of the High Court judges on Assange’s case for instance, Lord Justice Johnson, has previously been paid by the state during his time as a barrister, to represent the interests of the Ministry of Defence and MI6. As the Declassified article succinctly puts it:

Assange’s journalistic career has been marked by exposing the dirty secrets of the US and UK national security establishments. He now faces a judge who has acted for, and received security clearance from, some of those same state agencies.

As with previous judges who have ruled on Assange’s case, this raises concerns about institutional conflicts of interest.

Whatever anybody says, there is no such thing as a truly impartial judge. It’s an impossibility. ‘Experience’ - that is, years on the bench, will not help that impartiality, rather it erodes any that may exist, as stereotypes, and ‘typical’ cases are seen in the same prisms already established by these judges and details of differentiation missed. They are not to be blamed for this, they are only human, but human they are and this must be remembered. Humans may want to act by logic, but they are driven by emotion. I remember one barrister telling me that she only likes to go in front of a certain judge in the mornings as by the afternoons he gets so grumpy and tired that it is impossible to reason with him. Every morning hearing she had with him, she won. Every afternoon, he was simply rude and dismissive. That’s what happens with humans. We get tired, we get ratty, we act as humans. I am not a fan of AI, but maybe in the courts of law and evidence, its complete lack of emotion may prove invaluable in aiding with adjudication.

But when it comes to political cases, the state ensures the decision they want is communicated to the judges, and the judges will then usually comply. This doesn’t mean any sort of instruction; just a knowledge of what is expected. British High Court judges are from the establishment. As Craig Murray, former UK ambassador to Uzebekistan points out, not only did Lord Justice Johnson represent the intelligence services, but the second judge on the bench, Dame Victoria Sharp is also linked to the government. During Boris Johnson’s tenure, her brother, Richard arranged an £800,000 loan for the PM and subsequently became the chairman of the BBC, a position he had no experience for. These judges do not need to be told what to do, they instinctively know. Craig Murray, gave a speech to the UN about the Assange case. He writes:

Staff are visibly afraid to take on the UK/US interest. I met a number of UN staff who were happy to chat away until I brought up Assange; then they quite literally physically recoiled, in some cases took an actual step back, and always discovered they had pressing business elsewhere.

As such, it seems the decision is already made, and all the judges have to do is fit the evidence to that conclusion. This is called ‘mental acrobatics’ and it was on full display in Assange’s case, just as it was in Shamima Begum’s case just a few weeks earlier. In that case the judge, Dame Sue Carr, Lady Chief Justice stated:

It could be argued that the decision in Ms Begum’s case was harsh. It could also be argued that Ms Begum is the author of her own misfortune. But it is not for this court to agree or disagree with either point of view. Our only task is to rule on whether the decision was unlawful.”

It is clear the UK does not want Shamima Begum back. The law has been contorted in ways Paul Daniels could only dream of. Leaving a child stateless is a heinous and horrific crime, full stop. Masking that in words to make it seem palatable does not make it right, it does not make it moral and it will never make it legal.

It is clear that the British state considers all Muslim children groomed and trafficked by UK allies do not warrant return and can be left stateless, but Britons actively taking a role in the IOF’s genocide find no repercussions and are free and welcome to come and go as they wish. They even get jobs with universities, such as Zechariah Deutsch who became Chaplain of Leeds University. Personally, I take the view that the absolute bull coming from his mouth makes him at best, unwell and at worst a pathological liar and totally unfit to take up any chaplaincy role. The point is that if any of these individuals fancy another jolly to shoot kids in Gaza, no one will stop them.

Regarding Shamima’s failed case in the special immigration appeals commission last year, the judgment actually stated:

“Many right-thinking people will strongly take issue with the assessment of those advising the secretary of state”

and;

“political rather than national security factors drove the outcome.”

and;

The judges acknowledged that, "as a matter of basic common sense," Begum was groomed in the UK. They found it implausible that she could have arranged her travel to Syria independently and expressed credible suspicion that she was trafficked for sexual exploitation. Moreover, they suggested that UK institutions likely failed in their duty to protect her.

The BBC aptly described her most recent appeal loss as this:

Throughout the case, Begum’s lawyers had argued while the government said she was entitled to Bangladeshi citizenship, in practice she would never be allowed into the country and had therefore been left stateless - something which is banned under British and international law.

But, the judges ruled the home secretary was not under a legal obligation to consider that real-world outcome as over-riding.

Sajid Javid had the power to strip her of her nationality and the law said she was entitled to go to Bangladesh.

That’s right folks, the fact that Bangladesh has said if she enters their country she will be hanged is not a consideration. The potential death sentence awaiting Assange is an accepted ground of appeal, but actual death for Shamima is not.

I need say no more.

So, Julian Assange came with nine grounds of Appeal. Six were rejected. This included:

2. The applicant’s application to adduce fresh evidence is refused.

That new evidence is summarised in paras 70-75 of the judgment:

The alleged plot to poison/kidnap/murder/rendition the applicant

70. The applicant’s Spanish lawyers have filed a criminal complaint in Spain against the owner of UC Global, which was responsible for providing security at the Ecuador Embassy in London. Two anonymous witnesses who were employed by UC Global provided statements before a public notary. Witness 1 said that as well as providing monthly security reports to the government of Ecuador, UC Global also secretly provided copies of the reports to the United States authorities. The owner of UC Global made regular trips to the United States to speak with the CIA. His wealth increased considerably. The information provided to the United States included details of meetings between the applicant and his lawyers.

71. Witness 2 alleges the following (assuming that when the witness says “American friends” this is a reference to the CIA). Guy Goodwin Gill (a lawyer who had visited the applicant) was required to leave his iPad with security when he entered the embassy. The contents of his iPad were illicitly copied. Witness 2 was asked to steal the nappy of a baby who was visiting the applicant because the CIA wished to establish the child’s paternity. Suggestions were made by the CIA of extreme measures to end the applicant’s stay in the embassy, including leaving the door open to enable his kidnap or poisoning him. Illicit recording equipment was placed in the embassy at the behest of the CIA. He was asked to place stickers on the external windows of the embassy, which enabled the CIA (using directional microphones outside the embassy) to extract the applicant’s conversations (despite a white noise machine the applicant used as a counter-surveillance measure). Security personnel were asked to obtain the applicant’s fingerprints from an imprint on a glass. Security personnel stole documents from the applicant. Security personnel were instructed to target the applicant’s lawyers, and to Approved Judgment Assange v USA photograph their documentation. He installed an FTP server which stored the embassy’s daily security reports and which could be (and was) accessed remotely from the United States by the CIA. UC Global made monthly payments of €20,000 to the person responsible for security at the embassy to ensure that there were no negative reports about its work.

72. On 26 September 2021, a report was published by Yahoo News entitled “Kidnapping, assassination and a London shoot-out: Inside the CIA’s secret war plans against WikiLeaks” under the byline of Zach Dorfman, Sean D Naylor and Michael Isikoff. The Yahoo News article and the consequential statements of Mr Dratel and witness 2 (see below) post-date the judge’s decision. The applicant seeks to rely on them as fresh evidence.

73. The 26 September Yahoo report alleges the following amongst other matters. The disclosure by WikiLeaks of exceptionally sensitive intelligence, relating to CIA hacking tools and known as “Vault 7”, caused the CIA director, Mike Pompeo, and other senior officials inside the CIA, to become “completely detached from reality because they were so embarrassed… They were seeing blood.” In 2017, Mr Pompeo publicly described WikiLeaks as a “non-state hostile intelligence service.” The designation as a non-state hostile intelligence service enabled the CIA to take far more aggressive actions. Some senior officials inside the CIA and the Trump administration discussed killing the applicant, requesting options on how to assassinate him. Discussions over kidnapping or killing the applicant occurred “at the highest levels”. Eight former United States officials told Yahoo News of the CIA’s proposals to abduct the applicant. White House lawyers objected to these proposals. The Justice Department was concerned that the CIA’s plans would derail criminal proceedings against the applicant, and expedited the drafting of charges so that they were in place if the applicant was brought to the United States.

74. Joshua Dratel, a United States Attorney, has provided a statement for the applicant in which he draws a comparison between the use of the term “non-state hostile intelligence service” and that of “enemy combatant” to justify detention at Guantanamo Bay. He said the term was used “to place [the applicant] outside any cognizable legal framework that might protect them from the US actions based on purported “national security” imperatives”. It could be viewed as being intended to provide legal authority and cover for the kidnapping and/or killing of the applicant. Mr Dratel considered that these discussions would have included personnel from the Department of Justice, including the Attorney General, National Security Division lawyers and the prosecution team.

75. On 17 August 2022, witness 2 provided a signed witness statement. He confirmed that the content of his 2019 statement was correct. He confirmed that UC Global was in a position to provide essential information for “options on how to assassinate [the applicant]”.

The US plotted to kidnap or kill Julian Assange. Pretty serious and damning evidence one would say. That is precisely why it was not allowed in. The reasoning of the judges was:

209. The fresh evidence is similar to the evidence that was before the judge, including from witness 2, and expands upon that evidence in certain respects (on the basis that it alleges the CIA planned to kidnap and/or assassinate and/or rendition the applicant, not merely to poison him). Plainly, these are allegations of the utmost seriousness. We are satisfied however that the Fenyvesi test is not met. The relevant question here is would the judge have discharged the applicant on article 2 and/or 3 grounds if the fresh evidence had been before her. In our view, it is not arguable that she would have done so.

210. The judge did not reject the evidence that the applicant had adduced to similar effect as untrue and the original allegations were (by some margin) serious enough to bar extradition, if the alleged misconduct was in any way connected to the extradition proceedings. The judge’s critical finding however is that there was nothing to show that the conduct in relation to the Embassy was connected to the extradition proceedings. The new evidence does not change that. On the face of the allegations (on the evidence before the judge and the fresh evidence) the contemplation of extreme measures against the applicant (whether poisoning for example or rendition) were a response to the fear that the applicant might flee to Russia. The short answer to this, is that the rationale for such conduct is removed if the applicant is extradited. Extradition would result in him being lawfully in the custody of the United States authorities, and the reasons (if they can be called that) for rendition or kidnap or assassination then fall away.

211. It follows that we decline to admit the fresh evidence. Since this proposed new ground is based solely on that evidence, we refuse leave to appeal on this ground.

To summarise, the judges are saying IF Assange is legally extradited to the US, then he will be lawfully in their custody so they would not need to kidnap or kill him - they’d already have him. Therefore, it is not new evidence related to the EXTRADITION proceedings and so is not going to be allowed.

I mean…forget the absolute pretzel, spaghetti junction, entire Russian state circus, topsy-turvey (un)reasoning there, the holes in the argument are massive. Just two will suffice:

1. If the US is happy to do all these illegal activities when Assange is legally in an Embassy, what makes you think that they won’t do these same activities when they legally have him in custody?

2. ‘Killing’ and kidnapping are two different things. Extradition only prevents the latter. The former - especially with the lack of assurance that the death penalty will not be used - is still a very serious and real possibility.

I think it best for us to hear Richard Medhurst’s take on this. He is one of the best broadcasters there is and he has done an amazing job documenting the whole Assange case. I really recommend watching his videos on it.

The other Grounds which were rejected were:

3 i) and viii) (extradition incompatible with the Treaty),

ii) (extradition barred by section 81(a) because it is for the purpose of a prosecution for political opinion),

iii) (extradition incompatible with article 7 of the Convention),

vi) (extradition incompatible with the right to a fair trial under article 6 of the Convention), and vii) (extradition incompatible with articles 2 and 3 of the Convention).

The last two of these regarded the European Convention of Human Rights. That were pretty quickly dismissed on the basis that in those countries designated as Category 2 countries under the Extradition Act 2003 - which includes the U.S. - trial rights (and those surrounding ECHR rights raised) are presumed to be upheld by the legislation of the country seeking extradition. In other words, a cop-out.

However, what you do need to know, and what is important, is that the Ground of the extradition being against the UK-US Extradition Treaty was rejected. It clearly states in that Treaty that political offences - which the US alleges Julian Assange has committed - are not extraditable offences. However, as I have said before, domestic law overrides international law. For some reason, the Treaty has not been ratified into domestic law and for some reason, the ‘political offence’ provision is not domestic law under the Extradition Act 2003. Instead the Extradition Act s 81(a) blocks extradition on what is ostensibly claimed to be an extradition offence, but is really a 'political opinion’

Extradition Act Section 81

Extraneous considerations

A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that—

(a)the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions

This is different to a ‘political offence’ and though this was a Ground of Appeal raised, it was also rejected by the judges. It is not his political opinions for which the US seek to extradite him, but his actions in publishing details of their war crimes and exposing them.

So, in summary, according to the judges, even though the UK-US Extradition Treaty is being used by the US to try and extradite Assange, the actual bits of the Treaty favourable to Assange can be ignored because the Treaty is not ratified into domestic law. As such, they can simply ignore bits of this Treaty at will. Which of course, is great for the citizens of Great Britain(!) The Americans can rely on it, but the Brits cannot. You can make of that what you will, though I think you are probably thinking the same as me.

And so, the only three Grounds of Appeal accepted by the High Court were:

The renewed application for leave to appeal on the following grounds is adjourned:

iv) (extradition incompatible with the right to freedom of expression under article 10 of the Convention),

v) (extradition barred by section 81(b) of the 2003 Act because the applicant might be prejudiced on grounds of nationality), and

ix) (extradition barred by sections 93 to 95 of the 2003 Act because of inadequate specialty protection/death penalty protection)

5. The adjournment is until 20 May 2024 (or such further date as may be notified by the court), subject to the following directions:

i) The respondents have permission to file any assurances with the court by 16 April 2024.

ii) In the event that no assurances are filed by then, leave to appeal will be granted on grounds iv), v) and ix)

iii) In the event that assurances are filed by 16 April 2024, the parties have permission to file further written submissions on the issue of leave to appeal, in the light of the assurances, such submissions to be filed by the applicant by 30 April 2024, and by the respondents by 14 May 2024.

iv) In the event that assurances are filed by 16 April 2024, the adjourned hearing shall be provisionally listed for 20 May 2024 with a time estimate of 1 day.

The three grounds are really two as iv) and v) are the same thing. The US have said that Assange will not be afforded his First Amendment rights as he is not an American citizen, but an Australian and thus he is being discriminated against on the basis of his nationality. The First Amendment rights include the right to free speech and freedom of the press. It has been used by Americans in the past. For example, Daniel Ellsberg was charged for leaking the Pentagon Papers to The New York Times, but the newspaper, who then published the information, was never prosecuted. No journalist in Britain or the US was ever prosecuted for publishing secret documents from the NSA or GCHQ leaked by Edward Snowden.

All the British judges have done, as they did before, is delay Julian Assange’s extradition to the United States. Initially, they did this on the basis of his health. Now, they say it is delayed until the US can give ‘assurances’ that his First Amendment rights will be protected and that he will not face the death penalty. Should those assurances not be given by the deadline - 16th April - then the appeal can go ahead on these three very limited grounds. It is a conditional permission to appeal, and not a full permission at all.

Of course, the US will give assurances by the 16th April. All they need to do is scribble the assurances verbatim from the Order of the Court onto a piece of paper. It’s a simple bar to jump over. A bit of paper and they get their man. And once in America? Well, the British courts have no control, no jurisdiction. The Americans can do what they want. They can put Assange in solitary confinement for life. They can deny him his First Amendment rights. They can kill him. Despite the US consistently failing to provide these assurances in a court of law, the High Court have led the horse by the nose and have literally shoved its face into the water. A simple piece of paper can see Assange extradited on what is clearly a political offence; something which is non-extraditable under the UK-US extradition treaty.

It is clear on this alone, therefore, that any assurances given by the US will very likely be broken as soon as Assange sets foot in the US. But there are also actual cases of the US reneging on their assurances and agreements under extradition treaties. This includes the Mendoza case which is far too long to go into, but you can read the entire saga here. In summary, the US promised that after Mendoza stood trial in the US post-extradition, he could be returned to Spain to serve his sentence. On this agreement the extradition was granted but the US reneged on it as soon as Mendoza was on US soil and they refused to send him to Spain, even photoshopping out his signature on the agreement papers claiming he never signed it! It’s a truly disgusting story and one you must read.

So, Julian Assange, after 5 years in the highest-security prison in Britain, accused, charged and convicted of no crime in Britain, remains imprisoned and trapped. After 5 years of waiting for justice, he sits again, waiting for the US to provide the simple paper they need to provide to the UK before Julian is sent off to meet certain torture and death. Sitting in a cell for years whilst innocent, is torture. It is planned to be. The waiting and waiting for justice for years has decimated Julian’s health. It is designed to do so. Another delay does nothing but continue the torture. He has said he would commit suicide before being sent to the States which indicates how badly the US will likely treat him. This is one of the greatest travesties of our times and the death knell to a free press.

I do not usually quote David Davies. He was one of the MPs who pushed for Brexit through a concerted campaign of mendacity. However, he made a very good point in this Declassified article:

The irony, said Davis, is that if Assange were an American journalist in the US, he would not be prosecuted.

Free Assange.