Due process in the administration of justice requires respect for a defendant’s right to a fair trial, acknowledges a role for public scrutiny of court practices and insists that judges should be recused if they have a conflict of interest which would amount to bias.
In the prosecution of Australian citizen Julian Assange, such principles have been trashed.
To seek revenge against this whistleblower, publisher, journalist, governments in the United States, Sweden, Ecuador and Britain decided that due process in law should be replaced by whatever the powerful wanted.
An indifferent Australian government looked on.
Trashing legal due process has macabre consequences. The spread of authoritarianism may be taken for granted in dictatorships, but its adoption in the operations of the US Department of Justice, in the practices of Swedish Prosecution Authorities and in the disdain shown by British judges, puts democracy at risk, not just the life of Assange.
Nils Melzer, United Nations Special Rapporteur on Torture reveals judicial, political, media cultures built to persecute and demonise Assange in his book The Trial of Julian Assange.
Melzer’s evidence merits massive publicity.
Daniel Ellsberg, the whistleblower behind The Pentagon Papers, judges Melzer’s book, “A harrowing account of how official secrecy, corruption and impunity suffocate the truth and poison the rule of law”.
Direct quotes from Melzer will be recorded in inverted commas.
This story of cruelty, “Who cares about due process?”, begins in the US.
After Assange’s Wikileaks revelations about US forces’ murder in Iraq, US Senators, journalists and speechwriters claimed that Assange was a “high tech terrorist” and a danger to US security who should be prosecuted to the full extent of their laws.
To avoid a lengthy trial, and before US-influenced authorities spied on Assange during his confinement in Ecuador’s London Embassy, US politicians advocated that Assange be assassinated.
The rule of law should not hinder their objectives.
The Swedish Prosecution Authority postponed, for nine years, any decision to charge Assange with alleged rape offences and refused very opportunity to interview him either in Sweden or in London. The authority never pursued the rules of law.
Assange and the two women involved were “instrumentalised and abused … for the purpose of political persecution and deterrence”.
Fearing extradition to the US, Assange spent seven years confined in the Ecuadorian Embassy during which time the British government spent millions of pounds surveilling, persecuting and demonising him.
Their character assassination, supported by a supine media, influenced a government in Ecuador and the attitudes of the British judiciary.
New President of Ecuador Lenin Moreno, in 2018, offered Assange’s rendition to the US in exchange for financial concessions. In secret meetings with US Vice President Pence, he discussed ways to remove Assange from the embassy.
By spying, blocking telephone and internet access, stripping Assange of his Ecuadorian citizenship and diplomatic asylum, Moreno prepared the way for a besieged man’s arrest by British police.
Following his arrest, Assange’s professional documents were handed to the US Department of Justice, and British judges’ facilitated US efforts to extradite Assange.
Emma Arbuthnot, a senior judge in Westminster Magistrates Court, confirmed Arrange’s arrest for having skipped bail and dismissed the UN Working Group on Arbitrary Detention arguments that Assange’s confinement at the Ecuadorian embassy amounted to arbitrary deprivation of liberty.
She mocked Assange by claiming that he had been a free man not an imprisoned fugitive.
Melzer identifies conflicts of interest in Judge Arbuthnot’s position. Her husband, Lord James Arbuthnot was a House of Lords Tory, a former chairman of the British government’s Defence Select committee concerned with the conduct of the British military.
WikiLeaks had published documents about individuals and organisations with close connections to Lord Arbuthnot, but his wife did not consider her husband’s position would affect her conduct of extradition proceedings against Assange.
Following Judge Arbuthnot’s decisions and to argue that she should be recused, Assange appeared before Judge Michael Snow.
But Assange and the rule of law had no chance against alliances of privileged people in high places.
Snow ridiculed Assange and insisted that it was “grossly unfair” and “improper” to suggest judicial bias by Arbuthnot “just to ruin the reputation of a senior and able judge”.
Another judge joined her judicial colleagues in the promotion of injustice.
For skipping bail, which would normally be punishable with a fine or short custodial sentences, Judge Deborah Taylor sentenced Assange to 50 weeks in prison, to be served in “a high security setting amounting to solitary confinement”.
Judge Vanessa Baraitser succeeded Arbuthnot in the extradition proceedings against Assange.
Baraitser refused Amnesty International and Reporters Without Borders entry as public observers, did not allow Assange to sit with his lawyers and repeatedly placed him under a gag order.
Before appearing in court, Assange had been subject to even more humiliation, “reportedly strip searched twice, handcuffed eleven times and locked up in five different holding cells”.
Although Baraitser refused Assange’s extradition on medical grounds, he was returned to solitary confinement and denied bail. The British judiciary ingratiated themselves with the US administration which was immediately invited to appeal to the British High Court.
Assange’s enforced silence continued and so too his prison ordeal.
The Australian government and the mainstream media’s disinterest compounded the disdainful attitudes of British judges.
Melzer reported that from Prime Minister Kevin Rudd and Justice Minister Nicola Roxon onwards, Australian governments’ responses to appeals from Assange’s lawyers were “formalistic, self-righteous, sanctimonious, completely distant and non-committal”.
Via an article in The Lancet in February 2020, 117 medical doctors from 18 countries appealed to the Australian government to protect their citizen. It did not respond.
When human rights organisations wanted to observe Assange’s appeal against extradition in September 2020, they were refused entry. Yet, throughout that hearing at the Old Bailey, seats reserved for representatives of the Australian High Commission, led by High Commissioner Brandis, remained vacant.
Although major newspapers, The Guardian and The New York Times, had protested that the conviction of Assange would endanger press freedom, they wrote nothing about his treatment in court systems in which dignity and due process had been ditched.
The mainstream media could have affected Assange’s chances of freedom but in Britain, the US and Australia, journalists were “lame, tame and too late”.
Melzer is in no doubt that if solidarity in support of Assange had been shown by The Guardian, the BBC, The New York Times and The Washington Post, this persecution would immediately end.
Politicians, journalists and the general public should be aware of the substantial evidence that shows the Assange case is about political corruption with judicial institutions and processes being abused for political purposes.
Melzer’s conclusion is damning. In common with Edward Snowden and Chelsea Manning, Assange has been “persecuted, mistreated and demonised for having told the truth, the whole truth and nothing but the truth about the misconduct of western democracies”.
[Stuart Rees OAM is Professor Emeritus, University of Sydney and the author of Cruelty or Humanity: Challenges, Opportunities and Responsibilities. Republished with permission from Pearls and Irritations.]