The arrest of Julian Assange yesterday came as no surprise. Last week there had been the revelation from inside the Ecuadorian camp that the arrest was imminent and so it came to pass. The real issue now is what happens to Assange in the weeks and months ahead.
Julian Assange sought asylum in the Ecuadorian Embassy in London in 2012 because he feared that he would be extradited to the US to face charges connected with the publication in 2010 of volumes of material concerning the Iraq and Afghanistan wars.
Ironically he won a Walkley and various other media awards for this groundbreaking publication which revealed US war crimes, such as killing Reuters journalists. At that time a Swedish prosecutor wanted to arrest Assange so she could undertake an interview with him concerning allegations of sexual assault. Sweden, with a poor track record when it comes to handing over individuals to the United States, would do likewise to Assange, he thought — and Ecuador accepted his claim for asylum.
While his critics said Assange was simply avoiding facing the sexual assault allegations, he and his advisers maintained the US had a secret grand jury process in operation and that charges would indeed be laid. He, and those of us who support Assange, have been proven right. The US prosecutors have now revealed they are seeking Assange’s extradition and want him to stand trial in Virginia.
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Of course there is also the issue of Assange, who was on bail in respect of the Swedish arrest warrant, being dealt with for breaching bail by seeking asylum. Yesterday, the UK justice system moved with uncharacteristic speed as a court found the breach of bail proven and sent Assange to the Crown Court for sentencing. He faces up to 12 months’ jail for breaching bail.
On the issue of extradition this will be guided by the treaty that exists between the UK and United States to deal with such matters. This treaty, in force since 2003, was signed off at the height of the so-called War on Terror. It has been roundly criticised in the UK because it allows American prosecutors to seek and obtain extradition without having to show there are reasonable grounds to believe the subject of the extradition request actually committed an offence. The only real objection which can be taken to an extradition is if the charge carries a death penalty as a sentence.
The Indictment filed by the US overnight reveals that Assange is charged with a conspiracy type offence — that is, assisting or encouraging former US military officer Chelsea Manning to divulge material about the conduct of the US and its allies in Afghanistan and Australia. In short, a hacking type offence. The offence carries a maximum of five years jail. However this is unlikely to be the only charge. It is hard to imagine that a nine year Grand Jury process and millions of dollars are being spent to prosecute Assange on one charge. And the extradition arrangements allow the US to lay further charges based on the same facts, with much higher maximum penalties, once Assange is in the US.
The other serious issue which the British courts need to grapple with, and in respect of which the Australian government has a duty to protect, relates to the treatment Assange will get in a US prison while awaiting trial. Chelsea Manning has been in solitary confinement for a month recently because of her refusal to testify to the grand jury and she was subjected to torture by the US, a finding made by the UN rapporteur in 2012, when she was jailed for allegedly providing WikiLeaks with the Iraq and Afghanistan material.
The extradition of Assange is not a foregone conclusion however. British courts have on occasion been less than impressed with the way the US goes about its business in such cases.
In a 2007 case the English Court of Appeal was scathing about the duplicity and dishonesty of the US in using an extradition request to try and detain an individual, Lotfi Raissi, and investigate him about 9/11.
“It seems to us that the extradition proceedings themselves were a device to secure the appellant’s presence in the US for the purpose of investigating 9/11 rather than for the purpose of putting him on trial for non-disclosure offences. We also consider that the way in which the extradition proceedings were conducted in this country … amounted to an abuse of process,” the Court said. This case is not an isolated one.
The legal journey of Julian Assange in one sense has just begun. After he is sentenced for the breach of bail, he will likely be detained while the extradition case makes its way through the English courts. That could take some months at the very least.
Greg Barns is a barrister and legal adviser to Julian Assange.