Last week, evidence closed in the current proceedings against WikiLeaks founder and journalist Julian Assange. The United States is attempting to have the Australian extradited from Britain, under the UK-US Extradition Treaty.
This is somewhat suspect, as the treaty specifically rules out extradition when the criminal charges involved are political. Seventeen of the 18 charges laid against the WikiLeaks founder are espionage related.
Another stark anomaly is that the US government has reached across international borders and arrested an Australian citizen over publishing material that took place on foreign soil. Meanwhile, Britain has remanded Assange in prison for more than a year.
Judge Vanessa Baraitser, who presided over the case in the Old Bailey, indicated that she won’t be handing down her final decision until January 4 — two months after the US presidential election.
The 18n charges against Assange carry a maximum penalty that adds up to 175 years. The court heard last week that if the journalist is extradited and subsequently convicted, he’s likely to be sent to the federal supermax prison in Colorado — the nation’s toughest.
Also known as ADX Colorado, this maximum security facility is reserved for those who have been convicted of the most heinous crimes: the Mexican drug lord El Chapo, the Unabomber, an Oklahoma bombing conspirator and the coordinator of the World Trade Centre bombing.
If incarcerated there, Assange would likely be placed on the special administrative measures regime (SAMS). This would involve no communications with other inmates or the outside world, except for one half-hour phone call a month.
SAMS also involves being in continuous solitary confinement, with limited exercise time, which is taken alone. This constitutes torture for most, including the United Nations’s Mandela Rules, on the minimum standard treatment of prisoners.
Australian barrister Greg Barns co-signed the Lawyers for Assange open letter in mid-August which called on Britain’s government to release Assange from London’s Belmarsh Prison.
As an advisor to the Assange campaign, Barns is keenly aware of the injustices and inconsistencies that are involved in the case of the man who revolutionised journalism, only to be persecuted for it.
Barns said the Australian government needs to step in to assist Assange.
Sydney Criminal Lawyers spoke to Greg Barns about the Kafkaesque nature of the extradition trial, the reasons why Assange’s plight should be of concern to all and why it’s time local journalists put the pressure on foreign minister Marise Payne.
First, there are numerous aspects to Julian Assange’s detainment and extradition trial in Britain that undermine the rule of law. How would you describe what’s happening to Assange?
There is no doubt this case is a travesty of justice — at a number of levels. First, the charges themselves are inherently political. It needs to be remembered that the United States is seeking to extradite Assange because he revealed serious war crimes committed by the US government in the theatres of war of Iraq and Afghanistan, most graphically illustrated by the video Collateral Murder.
It also needs to be remembered that this is the first occasion the US has sought to use domestic espionage laws against a person who has not entered the US jurisdiction, is not a citizen of the US, and who has published material which is seen to be adverse to the interests of the US.
So, the precedent that’s set is quite dangerous for any other person — including journalists — who publish material which the US considers to be adverse to its interests, in circumstances where that person never enters the US jurisdiction physically or even in an online sense.
The other issue is the fact that Assange’s lawyers in London have had a difficult time being able to access their client.
He is being held at Belmarsh Prison, which is maximum security. He is being held in conditions which are clearly inhumane, including effective solitary confinement.
His lawyers have been acting in circumstances where they’ve had great difficulties in getting access to their client.
They are three of the most obvious points that can be made about this particular process.
Judge Vanessa Baraitser indicated on October 2 that she won’t be handing down her decision on the extradition case until January 4. Is your understanding? If so, why the delay? Could the fact that it will come after the US election bode well for Julian?
First, it’s a complex case and I’m not privy to the judge’s workload. Although it would have been preferable to have this matter resolved before Christmas and the new year. But it will be resolved on January 4 in terms of this court.
Again, this proves the point that this case is inherently political, as there’s no doubt there may be some shift in position on the part of the US Department of Justice after the election.
But you would not want to take that risk because, at the end of the day, if Assange is extradited to the US, he faces an effective death penalty of 175 years.
So, simply waiting for a new administration in the US to get around to looking at the Assange case is not, in my view, sufficient.
There is an urgency about this case for a whole range of reasons, including the fact that it’s a threat to freedom of speech and it needs to be resolved quickly.
This delay means Assange will be kept in detention for more months. He is now been in Belmarsh since last September. The only crime he’s been convicted of in Britain is breach of bail, and the sentence for that offence has been served in its entirety. What are your thoughts on the continued detainment of Assange?
One would have thought that there’s sufficient technology today to ensure that more people get bail, and that includes Assange.
There’s no doubt that his detention has led to a deterioration in his mental and physical health. There was evidence of that in the hearing. His detention has also made life very difficult for his lawyers in terms of obtaining instructions.
So, it does mean that there’s an inherent unfairness about the way in which the proceedings are being conducted.
Last week, US authorities were said to be considering imprisoning Assange in the maximum security ADX prison in Colorado and placing him in special administrative measures. This could entail being locked in his cell for up to 23 hours a day. These circumstances are usually allocated to the most serious criminals. How can US authorities justify such extreme measures are necessary for a journalist who obtained and published some documents?
That evidence was extraordinary, and it confirmed what a number of us have been saying for many years: that if Assange is extradited to the US, he will face cruel and unusual punishment and torture, on a daily basis — an effective death penalty.
The real issue here is why does the Australian government stand aside from this process, sit on its hands and refuse to assist an Australian citizen in circumstances when that’s the future for them?
If this was a case where Assange was being extradited to China, the Australian government would be pulling out all stops.
It has to get involved in this case, if for no other reason than that sort of punishment should not be tolerated and no Australian – in fact no person – should have to endure it.
The Scott Morrison government is well aware of all these inconsistencies and the injustices involved in Assange’s case. What is behind its lack of action?
Successive governments have failed to deal with Julian’s case. I would say a notable exception was Julie Bishop who, in my indirect dealings, treated this matter more seriously than others.
Australia’s alliance with the US is such that the Australian government thinks for some reason this is not a matter that it can put on the table for negotiation.
Well, that is wrong.
[Australia] remains a loyal ally [to the US] as Bob Carr, the former foreign minister, has said. And therefore, there’s no ally in a better position to ensure that one of its citizens is not subjected to an effective death penalty. That’s what needs to happen.
Why should all Australians be concerned that the government is looking the other way?
Every Australian should be concerned. It could be you. It could be any of us. That is not an exaggeration. I am surprised that more Australian journalists have not been pushing Payne on this issue, because this case represents a direct threat to freedom of speech.
It’s fundamentally important that Australia’s media involve themselves more in this case.
They did so in the case of David Hicks some years ago now, in different circumstances. And they need to do so again, because it’s a direct threat to freedom of the press. But it’s also a direct threat to the life of an Australian citizen.
[This article first appeared at Sydney Criminal Lawyers on October 7.]