March 16, 2022 — This article, by professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and Assange Defense Committee advisory board member Marjorie Cohn, was originally posted at Truthout.org.
The British judicial system has erected still another barrier to Julian Assange’s freedom. On March 14, the U.K. Supreme Court refused to hear Assange’s appeal of the U.K. High Court’s ruling ordering his extradition to the United States. If extradited to the U.S. for trial, Assange will face 17 charges under the Espionage Act and up to 175 years in prison for revealing evidence of U.S. war crimes.
With no explanation of its reasoning, the Supreme Court denied Assange “permission to appeal” the High Court’s decision, saying that Assange’s appeal did not “raise an arguable point of law.” The court remanded the case back to the Westminster Magistrates’ Court, which is the same court that denied the U.S. extradition request on January 4, 2021.
In all likelihood, the magistrates’ court will refer the case to the British Home Office where Home Secretary Priti Patel will review it. Assange’s lawyers then have four weeks to submit materials for Patel’s consideration. If she orders Assange’s extradition — which is highly likely — his lawyers will file a cross-appeal in the High Court asking it to review the issues Assange lost in the magistrates’ court.
If the High Court refuses to review those additional issues, Assange can appeal to the European Court of Human Rights. That could take years. Meanwhile, he languishes in London’s high-security Belmarsh Prison, in fragile mental and physical health. He suffered a mini-stroke as his extradition hearing began. United Nations Special Rapporteur on Torture Nils Melzer wrote in a Twitter post that the “U.K. is literally torturing him to death.”
The Legal Background
On January 24, 2022, the High Court rejected Assange’s appeal but it certified to the Supreme Court that Assange had raised a “point of law of general public importance.” This means that it is a proper issue for the Supreme Court to review. The three-judge panel of the Supreme Court has now refused Assange permission to appeal.
The point of law that the High Court certified to the Supreme Court was as follows:
“In what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings.”
The United States waited until after the extradition hearing was over to offer U.K. District Judge Vanessa Baraitser assurances about the way Assange would be treated in U.S. prisons if extradited.
Following a three-week evidentiary hearing, Baraitser ruled on January 4, 2021, that if Assange is extradited to the United States for trial, he is very likely to attempt suicide due to his mental state and the harsh conditions of confinement under which he would be held in U.S. prisons.
During the hearing, the U.S. government did not assure Baraitser that Assange would not be held in solitary confinement in the United States. After Baraitser denied extradition, the Biden administration provided “assurances” that Assange wouldn’t be subject to special administrative measures (SAMs) or be housed at the ADX supermax prison in Florence, Colorado.
But the United States’s so-called assurances contained a loophole big enough to drive a truck through. All assurances would be void if Assange committed a “future act” that “met the test” for the imposition of SAMs. That subjective determination would be made by prison officials with no judicial review.If extradited to the U.S. for trial, Assange will face … up to 175 years in prison for revealing evidence of U.S. war crimes.
Although the late timing of the U.S.’s assurances prevented Assange’s lawyers from arguing they were unreliable and citing prior such assurances the United States failed to honor, the High Court accepted Biden’s assurances and dismissed Assange’s appeal in its January 2022 ruling.
Issues Assange Seeks to Raise on Cross-Appeal
In the cross-appeal, Assange’s lawyers will raise the following points:
*The extradition treaty between the U.S. and the U.K. forbids extradition for a political offense and since espionage is a political offense, the court lacked jurisdiction to hear the case;
*Extradition would be oppressive or unjust due to the passage of time;
*The charges against Assange do not satisfy the “dual criminality test” which requires that they constitute criminal offenses in both the U.S. and the U.K.;
*Extradition is barred because the request is based on Assange’s political opinions;
*Extradition is barred because it would violate Assange’s rights to a fair trial and freedom of expression, as well as the prohibition on inhuman and degrading treatment, under the European Convention on Human Rights; and
*The request for extradition is an abuse of process because it is being pursued for a political motive and not in good faith.
Human Rights Organizations Decry Supreme Court’s Refusal to Hear Appeal
Julia Hall, Amnesty International’s deputy research director for Europe, called the Supreme Court’s refusal to hear the appeal a “blow to Julian Assange and to justice.” Hall said, “Demanding that states like the UK extradite people for publishing classified information that is in the public interest sets a dangerous precedent and must be rejected.” She added:
Prolonged solitary confinement is a key feature of life for many people in U.S. maximum security prisons and amounts to torture or other ill treatment under international law. The ban on torture and other ill-treatment is absolute and empty promises of fair treatment, such as those offered by the U.S.A. in the Assange case threaten to profoundly undermine that international prohibition.
Likewise, Reporters Without Borders (RSF) expressed strong opposition to the Supreme Court’s decision. “Assange’s case is overwhelmingly in the public interest, and it deserved review by the highest court in the U.K. After two full years of extradition proceedings, once again Assange’s fate has become a political decision,” said Rebecca Vincent, RSF’s director of operations and campaigns. “We call on the Home Office to act in the interest of journalism and press freedom by refusing extradition and releasing Assange from prison without further delay.”
Assange’s Fiancée Says U.S. Wants to Imprison Him for Exposing Its War Crimes
Stella Moris, Assange’s fiancée, says Assange is being persecuted for carrying out a core journalistic mission: telling the truth.
“Whether Julian is extradited or not, which is the same as saying whether he lives or dies, is being decided through a process of legal avoidance,” Moris said. “Avoiding to hear arguments that challenge the UK courts’ deference to unenforceable and caveated claims regarding his treatment made by the United States, the country that plotted to murder him. The country whose atrocities he brought into the public domain. Julian is the key witness, the [principal] indicter, and the cause of enormous embarrassment to successive US governments.”
Moris added, “Julian was just doing his job, which was to publish the truth about wrongdoing. His loyalty is the same as that which all journalists should have: to the public. Not to the spy agencies of a foreign power.”
According to Moris, the United States wants to imprison Assange for 175 years because he “published evidence that the country that is trying to extradite him committed war crimes and covered them up; that it committed gross violations that killed tens of thousands of innocent men, women and children; that it tortured and rendered; that it bombed children, had death squads, and murdered Reuters journalists in cold blood; that it bribed foreign officials and bullied less powerful countries into harming their own citizens, and that it also corrupted allied nations’ judicial inquiries into US wrongdoing.”
Assange and Moris, who share two small children, have finally received permission to marry. They will be wed later this month in Belmarsh Prison.