The prosecution in Julian Assange's extradition hearing in London Wednesday maintained a magistrate court has the authority to flout an international norm enshrined in treaties and approve the extradition of the WikiLeaks founder to the United States.
Arguments on the third day of the hearing focused on the issue of "political offenses" and whether an extradition treaty between the U.S. and the U.K. applies to the case. If it does, the defense believes extradition should be denied because the allegations against Assange involve the publication of state secrets and are "purely political offenses."
Assange is accused of 17 counts of violating the Espionage Act and one count of violating a computer crime law that, as alleged in the indictment, is also an espionage offense. Espionage is widely recognized as an "offense directed against the state itself."
An extradition treaty signed [PDF] by both the U.S. and the U.K. in 2003 contains a section that explicitly applies to political offenses. It states, "Extradition shall not be granted if the offense for which extradition is requested is a political offense."
However, in 2003, the U.K. Parliament passed the Extradition Act and omitted a section on political offenses. The prosecution argues Parliament did not include a right related to political offenses, therefore, Assange cannot invoke the protection to prevent his extradition.
Why the political offense exception was omitted from the 2003 law is unclear. But at the time of passage, it was early in the global war on terrorism.
Christopher Joyner, a professor of international law at Georgetown University, articulated what was a prevalent concern at the time.
"Perhaps most problematic for extradition cases involving acts of terrorism is the political offense exception. Many modern extradition treaties specifically exempt political offenses from extradition, since liberal and democratic governments developed a strong antipathy toward the idea of surrendering dissidents into the hands of a despotic government."
Joyner continued, "There are, however, no recognized criteria as to what constitutes a 'political' offense, nor is there a rule of international law prohibiting the extradition of political offenders. As a result, the decision whether to extradite rests on subjective criteria, as determined by the holding government."
"Accordingly, the bilateral extradition system can provide only partial remedies for bringing international terrorists to justice. The consequence is that, while governments might agree that terrorist acts rise to being criminal offenses against the international community, strict multilateral enforcement through extradition in prosecuting such acts may still be lacking."
The U.S.-U.K. treaty dealt with this issue by specifically listing violent offenses that were to be excluded from the political offense exception.
Judge Vanessa Baraitser seemed receptive to the prosecution's argument for disregarding the treaty. Before James Lewis, the lead prosecutor, responded to the defense, Baraitser instructed the defense to stop their argument about political offenses and focus on whether the treaty is relevant to proceedings.
To this, defense attorney Edward Fitzgerald told the judge the treaty is the basis of the extradition request. "To have an extradition request, you've got to have a treaty."
The Magna Carta of 1215 banned arbitrary detention and granted defendants rights of habeas corpus. Fitzgerald emphasized that such due process protections have been enshrined for centuries, and in fact, the U.S. Constitution contains them as well. But as the "Don't Extradite Assange Campaign" observed, the judge acted like Parliament overrode the Magna Carta, as the defense outlined why a person should not be subject to arbitrary detention.
The defense offered several salient examples that related to the matter of political offenses.
"It is ultimately no different [than] the extradition request concerning MI5 agent David Shayler, prosecuted under the Official Secrets Act 1989 for passing top secret documents to The Mail on Sunday in 1997," the defense recalled. That included "disclosing the names of agents who had been put in fear of their lives by his actions."
The French Court of Appeals rejected extradition in 1998 because it was covered by the "political offense exception."
As the defense described, "Shayler disclosed that MI5 kept files on prominent politicians, including Labour Ministers, that the bombings of the City of London in 1993 and the Israeli embassy in 1994 could have been avoided, and that MI6 were involved in a plot to assassinate" Libyan Leader Muammar Gaddafi.
The case of Katharine Gun was mentioned, a GCHQ whistleblower who revealed a pressure campaign against UN member countries to coerce support for the invasion of Iraq.
Also, the judge heard about how prosecutors, intelligence officials, politicians, and others have attributed motivation and purpose to Assange that strongly suggests he was committed to damaging the work of U.S. security and intelligence agencies and that he wanted to damage the "capability of the armed forces of the [U.S.] to carry out their tasks" and sought to "endanger the interests" of the U.S. abroad."
U.S. government officials "freely, publicly, and regularly ascribe motives 'hostile'" to the U.S. government to Assange, which the defense believes is evidence he is charged with political offenses.
Ultimately, what the defense detailed may make little difference if the judge agrees with prosecutors that the extradition treaty does not matter. What takes priority is what is in domestic law, and in domestic law, Assange deserves no protection from this specific violation of his rights.
Standing outside the Woolwich courthouse adjacent to the Belmarsh prison where Assange is detained, WikiLeaks editor-in-chief Kristinn Hrafnsson said, "This is an anti-terrorist court here beside Belmarsh, and Julian is treated as a terrorist. He is strip-searched. He is handcuffed ten or 11 times a day. His [legal] material is taken away from him. It is totally unacceptable."
Hrafnsson was speaking about the toll the proceedings and confinement are taking on Assange. In the afternoon, when the judge asked Assange if he needed a break, he stood up to address the court. He complained yet again about the lack of access to his attorneys and how there are security guards around him any time he wants to have a privileged conversation.
Assange suggested there were unnamed officials from the Ecuador embassy in the courtroom. "I cannot communicate with my lawyers or ask them for clarifications without the other side seeing. There has been enough spying on my lawyers already. The other side has about 100 times more contact with their lawyers per day."
These remarks came near the end of the day, and the defense informed the judge they would like Assange to be able to sit with them in the well instead of the glass box. She opposed the request, contending it was unreasonable to think she could approve that without a "risk assessment" from personnel involved in security.
When the defense made it clear they would make a formal request, she seemed to think they would have to ask for bail, which the prosecution would oppose. That prompted Lewis, the prosecutor, to inform the judge they took a "neutral stance." He did not think a bail application was appropriate nor did he think it was as complicated as the judge was making it. Assange could have a security guard stand by him while he sat with his attorneys.