LETTER FROM LONDON: On the Matter of Assange's Lawyers Considering a Cross
Appeal
February 19, 2021
If this happens, the hearing at the High Court in London will acquire
epochal importance, writes Alexander Mercouris.
The Royal Courts of Justice on the Strand, home to the High Court in
London. (Sjiong, CC BY-SA 2.0, Wikimedia Commons)
By Alexander Mercouris
in London
Special to Consortium News
Julian Assange's lawyers are considering bringing a cross appeal to the High
Court in London disputing parts of District Judge Vanessa Baraitser's Jan. 4
judgment not to extradite Assange to the United States, according to a
report by journalist Tareq Haddad.
Baraitser refused the U.S. request on narrow grounds, saying Assange's
extradition would put his life and health at risk. But Baraitser sided with
the U.S. on every other point of law and fact, making it clear that in the
absence of the life and health issues she would have granted the U.S.
request.
That opens the way for the U.S. government to seek the extradition of other
persons, including journalists, who do the same things as Assange did, but
who cannot rely on the same life and health issues.
It also means that if the U.S. wins the appeal it filed last Friday in High
Court it can try Assange in the U.S. on the Espionage Act charges that went
unchallenged by Baraitser. If Assange's lawyers counter the U.S. appeal
with one of their own in the High Court against Baraitser's upholding of the
espionage charges, it would be heard simultaneously with the U.S. appeal.
Stella Moris, Assange's partner, has written that Assange's lawyers are
indeed considering a cross appeal:
"The next step in the legal case is that Julian's legal team will respond to
the US grounds for appeal. Julian's lawyers are hard at work. Julian's team
has asked the High Court to give them more time to consider whether to lodge
a cross appeal in order to challenge parts of the ruling where the
magistrate did not side with Julian and the press freedom arguments. A cross
appeal would provide an opportunity to clear Julian's name properly.
Although Julian won at the Magistrates' Court, the magistrate did not side
with him on the wider public interest arguments. We wanted a U.K. court to
properly quash the extradition and refute the other grounds too. We wanted a
finding that the extradition is an attempt to criminalise journalism, not
just in the U.S. but in the U.K. and the rest of the world as well; and that
the decision to indict Julian was a political act, a violation of the
treaty, a violation of his human rights and an abuse of process. Julian's
extradition team is considering all these issues, and whether they can be
cross-appealed."
The Question of a Political Offence
Julian Assange outside the High Court in London, 2011. (acidpolly/Flickr)
During Assange's extradition hearing, the prosecution and the defence
clashed about whether the court should adhere to the U.S.-U.K. extradition
treaty or the Extradition Act, which made the treaty part of British law.
Article 4 of the treaty prohibits extradition for a political offence, as
British law for centuries has done. The Act mysteriously omitted this.
Assange's attorneys clearly argued for the treaty to be followed, but
Baraitser cited the Act.
In his article, Haddad pointed to comments by British MP and former Cabinet
Minister David Davis to the House of Commons on Jan. 21.
Davis, who as the Conservatives' shadow home secretary played a central role
in the parliamentary debates which resulted in the 2003 Extradition Act
becoming law, told the House of Commons:
"Although we cannot, of course, discuss the substance of the Assange
judgment here today, the House must note the worrying development more
generally in our extradition arrangements - extradition for
political offences. This stems from an erroneous interpretation of
Parliament's intention in 2003. This must now be clarified.
Article 4 of the U.K.-U.S. extradition treaty provides that extradition will
not be granted for political offences. In the U.K., the treaty was
implemented in the Extradition Act 2003. It has been claimed that, because
the Act does not specifically refer to political offences, Parliament
explicitly took the decision to remove the bar when passing the Act in 2003.
That is not the case - Parliament had no such intention.
Had it intended such a massive deviation from our centuries-long tradition
of providing asylum, it would have been explicit.."
In making these points Davis cited reassurances given to the House of
Commons during the parliamentary debates which took places before the 2003
Extradition Act was voted into law. Davis specifically referred to certain
comments made by the British Minister Bob Ainsworth. According to the
official record of the debates in Hansard, Ainsworth told the House of
Commons:
"The Bill will ensure that no one can be extradited where the request is
politically motivated, where the double jeopardy rule applies or where the
fugitive's medical condition- an issue raised by my hon. Friend the Member
for Leyton and Wanstead (Harry Cohen) - would make it unjust. On conviction
in absentia cases, we will extradite only where the fugitive can be sure of
a retrial. We will not extradite unless we are certain that the death
penalty will not be carried out. Finally and very importantly, extradition
cannot take place where it would be incompatible with the fugitive's human
rights." (Emphasis added)
British courts do not usually weigh comments made in parliament when
considering how to interpret an Act of Parliament. The British legal
tradition is to interpret an Act of Parliament strictly on the basis of its
own wording. British courts do not generally look at what was said during
parliamentary debates about an Act, even by ministers who propose it.
However there have been numerous exceptions, and it is not a hard and fast
rule.
British appeal courts also are generally reluctant to look at evidence, such
as Davis's comments, which come about after the judgment that is being
appealed. That too, however, is not a hard and fast rule.
One should be cautious about the idea of a cross appeal to the High Court on
Assange's behalf. Despite the fact that Baraitser sided with the U.S.
government on most of the contentious issues of law and fact in the case,
she did in the end refuse the U.S. government's request for Assange's
extradition. The normal practice in an appeal is to uphold a judgment made
in one's favour, not to challenge it by bringing a cross appeal, which could
serve to undermine it. That often means going along with things in the
judgment with which one is unhappy.
There is however nothing normal about Assange's case. As Moris' comments
show, one has to be aware, perhaps more than in almost any other case, of
the overriding and even transcendent issues of media freedom and human
rights that arise.
Bob Ainsworth in 2010. (Chatham House, CC BY 2.0, Wikimedia Commons)
It may be that Assange's lawyers will decide that Ainsworth's comments to
the House of Commons in 2003; Davis's recent comments about parliament's
intentions at the time when the 2003 Extradition Act was passed into law;
and any other points of law or fact that carry sufficient weight, justify
bringing a cross appeal, despite the attendant risks.
If Assange's lawyers do decide to bring a cross appeal, then the High Court
hearing of that and the U.S. appeal will acquire epochal importance.
Baraitser's finding, that the 2003 Extradition Act allows extradition to the
U.S. of individuals who face political charges because the Act does not
expressly prohibit such extraditions, was her way of getting around the many
contradictions and lapses of logic with which the U.S. case against Assange
was littered, as I discussed in my previous Letter from London.
In my view the omission in the Act of the prohibition on extradition on
political grounds does not in fact do away with that prohibition. There is
far too much case law confirming the prohibition exists, for it to be simply
done away with by silence. As Davis said, if parliament had really wanted
to do away with that prohibition, the Act would have expressly said so.
If the High Court were to follow this reasoning and decide - as Ainsworth
told the House of Commons in 2003 and as Davis says now - that the absence
of any reference to this prohibition in the Act does not mean that the
extradition of individuals facing political charges is now allowed; and that
the British tradition of prohibiting such extraditions is in fact still in
place (even if not expressly mentioned in the Act), then the entire basis of
Baraitser's reasoning collapses and is shown to be wrong.
That would be a huge victory for the rights of journalists, for free
expression generally, for the rights of refugees, and for people facing
extradition on political charges.
If that happens, the U.S. would almost certainly appeal the High Court's
decision to the U.K. Supreme Court for the authoritative and final decision.
It would potentially be as influential and important a decision as the
Pinochet case.
Middlesex Guildhall in London's Parliament Square, home of the Supreme Court
of the United Kingdom. (Christine Smith, CC BY-SA 4.0, Wikimedia Commons)
On the other hand, were Assange's lawyers to cross appeal, the High Court
could decide on the political offence question that, under the doctrine of
Parliamentary Sovereignty, the British Parliament has unlimited power to
pass legislation and is entitled to pass whatever legislation it deems fit.
It is not bound to follow an international treaty.
Moreover, since Parliament is sovereign the laws it enacts take precedence
within the U.K. over any other laws, including international law. So if the
British parliament enacts a law which contradicts international law or an
international treaty, the British courts will administer the law enacted by
parliament and will generally disregard international law or the
international treaty.
This is the classic British constitutional doctrine of the sovereignty of
parliament. Over the last 50 years it has gradually eroded, however. Whilst
Britain was a member of the European Union, parliament accepted that EU law
took precedence over whatever law parliament enacted. Also in 1998
parliament passed into law the Human Rights Act, which says (and still says)
that the European Convention on Human Rights takes precedence over any
British law.
But in the vast majority of situations the doctrine of parliamentary
sovereignty still applies, and Britain's withdrawal from the EU has recently
reinforced it.
But why is Assange even in this position? After all, as Davis reminded the
House of Commons, the British tradition has always been to refuse to
extradite individuals who face political charges. What changed to make it
possible for a judge like Baraitser to say that this centuries-old tradition
no longer applies and that it's now possible for Britain to extradite
someone who faces political charges?
Bush's War on Terror
President George W. Bush holds press conference at the Pentagon on Sept. 17,
2001. On right is National Security Advisor Condoleezza Rice. (White House)
Briefly, the silence on this point in the 2003 Extradition Act, which was
used by Baraitser to support her reasoning, is another malign consequence of
the George W. Bush administration's disastrous "War on Terror," which the
British government, led at that time by Prime Minister Tony Blair,
enthusiastically joined in.
In 2003 the Blair government deleted from the 2003 Extradition Act the
traditional prohibition on extraditing individuals who faced political
charges because it wanted to make it easier for the British government to
extradite and dispose of people who the U.S. and British governments said
were "terrorists." It did not want to have these people, who it said were
"terrorists," defeating extradition requests by saying that the charges
which had been brought against them were politically motivated. So it
removed the traditional prohibition of extradition on politically motivated
charges from the text of the 2003 Extradition Act.
Though the treaty was also signed after the War on Terror had begun,
treaties are negotiated by civil servants and the government of the day
usually does not become involved until the negotiation is over. That would
likely explain why the prohibition against political extraditions remains in
the treaty and was only removed in the Act.
As I very well remember, this, together with much else about this vague and
poorly drafted Act, gave rise at the time to very serious concerns, which
comments like those of Ainsworth were intended to allay.
Davis refers to all this in the same debate in the House of Commons:
"Since we agreed the U.K.-U.S. extradition treaty in 2003, it has been
abundantly clear that the British government of the day struck a truly
dreadful deal. Asymmetric, ineffective and fundamentally unfair on British
citizens, it is a terrible flaw in our own justice system. The previous
Labour administration approached the treaty as though their duty was first
and foremost to support the wishes of our American friends, not to safeguard
the rights of U.K. citizens.
Perhaps that was understandable in the context of the terrorism sweeping the
world at that time, but friends must be honest with each other, and now we
must say, 'Enough is enough.'
The 2003 treaty paved the way for British citizens to be handed over to the
U.S. authorities, with minimal safeguards against injustice.."
If a cross appeal is brought we will then see what all those assurances made
in 2003, including the one which Ainsworth made to the House of Commons, are
really worth. We will also see how the High Court, and ultimately the U.K.
Supreme Court, decide on this issue.
In the meantime, if it does nothing else, this case yet again shows that
compromising ancient protections in order to deal with an emergency or an
apparent emergency can store up problems for the future, and that willfully
throwing away important due-process protections in order to deal with a
crisis of the moment is something which will be repented at leisure.
Alexander Mercouris is a legal analyst, political commentator and editor of
The Duran.