United States Of America v Assange [2021] EW Misc 1 (MagC) (04 January 2021)

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Cite as: [2021] EW Misc 1 (MagC)

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JUDICIARY OF

ENGLAND AND WALES

District Judge (Magistrates’ Court) Vanessa Baraitser

In the Westminster Magistrates’ Court

Between:

THE GOVERNMENT OF THE UNITED STATES OF AMERICA

Requesting State               

-v-

JULIAN PAUL ASSANGE

Requested Person               

INDEX


The first strand (count 2)

The second strand (counts 3-14,1,18) and Article 10

The third strand (counts 15-17, 1) and Article 10

The right to truth/ Necessity

A. Introduction

The Request

Procedural History (US)

Procedural History (UK)

Chronology

The Alleged Conduct

Allegations against Mr. Assange relating to Ms. Manning

Damage caused by the “Manning” disclosures

Allegations not related to Ms. Manning

Teenager

Gnosis

(through Teenager) a list of approximately two hundred purported passwords to US and state government email accounts.

LulzSec”

Evidence

C. ISSUES RAISED

i. Article 3 (inhuman and degrading treatment);

ii. Article 6 (denial of a right to a fair trial);

iii. Article 7 (it would involve a novel and unforeseeable extension of the law);

iv. Article 10 (right to freedom of expression);

D. THE UK-US EXTRADITION TREATY

Submissions of the parties

“...As the Board [in Fuller] made clear the abuse alleged went, in that case also, to the extradition as much as to any prior detention...Where detention and the extradition proceedings as a whole stand and fall together, according to whether or not they involve an abuse of process, then Fuller suggests that article 5.4 may be an effective means by which a root and branch challenge to extradition may be pursued...”

Secretary of State for the Home Department [2006] EWHC 280 (Admin), below). The US submits that the EA 2003 provides a self-contained regime for extradition, contains no device for the incorporation of the term of an extradition treaty and abolished the protection for political offences provided by previous Extradition Acts. Where bilateral treaties have been relied on in cases (see R. v Governor of Pentonville Prison Ex p. Sinclair [1991] 2 A.C. 64 and R (In Re Guisto (FC) [2004] 1 AC 101), the treaty had been expressly incorporated into domestic law.

Discussion

“If the treaty contained such a provision and Parliament had not seen fit to incorporate it into municipal law by appropriate legislation, it would not be for the courts to supply what Parliament had omitted and thus to confer on the Crown a power to alter the law without the intervention of the legislature”.
“Mr Jones was unable to show any previous authority in the United Kingdom which suggested that the 1972 Treaty, standing alone, created personal rights enforceable by its individual citizens. The treaty specified the circumstances in which the governments of the United Kingdom and US agreed that extradition would, or would not, take place and they bound themselves to a series of pre-conditions which would govern the extradition process. Thereafter, the rights of citizens of the United Kingdom were governed by domestic legislative arrangements which ensured that the extradition process should be subject to judicial oversight, in an appropriate case, extending as far as the House of Lords in its capacity as the final appellate court. The treaty reflected the relationship agreed between the United Kingdom and the US for the purposes of extradition, rather than the municipal rights of United Kingdom citizens, enforceable against their own government. In brief, therefore their rights were provided and guaranteed, not by treaty, but by domestic legislation.”
“A difficulty with the argument that article 31 provides Mr Troitino with an immunity which we have not considered so far is that article 31 is a provision of an international treaty which forms part of international law and not of UK law. It is a basic principle of UK construction law that a treaty to which the UK is a party does not and cannot change domestic law or confer rights on individuals without the intervention of Parliament: see Rayner and Miller ---”
“We are not able to accept that an unincorporated treaty provision is capable, without more, of founding a legitimate expectation which is enforceable in English law. If that were the case, it is hard to see why, for example, the European Convention on Human Rights did not give rise to directly enforceable rights in UK law without the need to enact the Human Rights Act. Yet an argument that the Convention, as an international treaty, could have any effect in domestic law otherwise than through its incorporation through the mechanism of the Human Rights Act was given short shrift by the House of Lords in R v Lyons [2003] 1 AC 976, where Lord Hoffmann described it as “a fallacy” (para 40)”.

Initial stages of extradition hearing

[...]
[...]
[.]

SECTION 78(2)

SECTION 78(4)

Section 78(4)(a): the first issue

Section 78(4)(b): the second issue

137 Extradition offences: person not sentenced for offence

[...]
(7A) References in this section to “conduct” (except in the expression “equivalent conduct”) are to the conduct specified in the request for the person's extradition.

Section 137(3)(a) - the conduct offered in the Category 2 territory

Section 137(3)(b) - dual criminality

The following provisions are relevant:

Official Secrets Act 1911

he shall be guilty of felony [...]2
10.— Extent of Act and place of trial of offence.
(1) This Act shall apply to all acts which are offences under this Act when committed in any part of His Majesty's dominions, or when committed by British Officers or subjects elsewhere.

Official Secrets Act 1920

7. Attempts, incitements, &c

Any person who attempts to commit any offence under the principal Act or this Act, or solicits or incites or endeavours to persuade another person to commit an offence, or aids or abets and does any act preparatory to the commission of an offence under the principal Act or this Act, shall be guilty of a felony or a misdemeanour or a summary offence according as the offence in question is a felony, a misdemeanour or a summary offence, and on conviction shall be liable to the same punishment, and to be proceeded against in the same manner, as if he had committed the offence.
8.— Provisions as to trial and punishment of offences.
(1) Any person who is guilty of a felony under the principal Act or this Act shall be liable to penal servitude for a term of not less than three years and not exceeding fourteen years.

Official Secrets Act 1989

is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.
[...]
and the question whether a disclosure is damaging shall be determined for the purposes of this subsection as it would be in relation to a disclosure of that information, document or article by a Crown servant in contravention of section 1(3), 2(1) or 3(1) above.
unless that disclosure was by a British citizen or took place in the United Kingdom, in any of the Channel Islands or in the Isle of Man or a colony.
and information or a document or article is protected against disclosure by sections 1 to 3 above if it falls within paragraph (a) above.
“Official authorisation” is defined to mean an authorisation duly given by a Crown servant or by or on behalf of a prescribed body or a body of a prescribed class. These expressions are defined in section 12. A “Crown servant” includes any minister, civil servant, member of the armed forces or constable, and any holder of an office or body or member of a body prescribed by the secretary of state. In section 13 “disclose” and “disclosure” are defined to include parting with possession of a document.

Computer Misuse Act 1990

Human Rights Act 1998

6. Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

European Convention of Human Rights

Submissions of the parties

Prosecution Authority [2011] EWHC 2849 (Admin). The defence cautions against the court ignoring a defence which it submits is not available to a US court.

Discussion

The First Strand (Count 2)

The Second Strand (Counts 3-4, Count 5, Counts 6-8, Counts 9-14, Count 18, Count 1)

The English offences

Ms. Manning’s conduct: section 1(1) of the OSA 2011

Ms. Manning’s conduct: section 1(1) of the OSA 1989

Ms. Manning’s conduct: section 1(3) of the OSA 1989

Ms. Manning’s conduct: section 2 of the OSA 1989

Mr. Assange’s conduct in aiding and abetting the above offences

Conspiracy

“Despite the high importance attached to it, the right to free expression was never regarded in domestic law as absolute.....The European Convention similarly recognises that the right is not absolute: Article
10(2) qualifies the broad language of Article 10(1) by providing, so far as relevant to this case:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... , for the protection of the ... rights of others, for preventing the disclosure of information received in confidence .”
“The appellant’s case, put very broadly, is understood to be that he was appalled at the unlawfulness, irregularity, incompetence, misbehaviour and waste of resources in the service, which he thought was failing to perform its public duty; he believed that unless these failings were exposed and remedied dire consequences would follow; and he therefore believed it in the public and national interest to make the disclosure he did. This omnibus contention may or may not afford him a defence under the OSA 1989, depending on whether a public interest defence is available; but it is not within measurable distance of affording him a defence of necessity or duress of circumstances”.
“There is much domestic authority pointing to the need for a security or intelligence service to be secure. The commodity in which such a service deals is secret and confidential information. If the service is not secure those working against the interests of the state, whether terrorists, other criminals or foreign agents, will be alerted, and able to take evasive action; its own agents may be unmasked; members of the service will feel unable to rely on each other; those upon whom the service relies as sources of information will feel unable to rely on their identity remaining secret; and foreign countries will decline to entrust their own secrets to an insecure recipient: see, for example, Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 , 118C, 213H-214B, 259A, 265F; Attorney General v Blake[2001] 1 AC 268 ,287D-F.”
“In other words, a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions”

The Third Strand (Counts 15 —17, and Count 1 again)

The alleged conduct

The English offence - section 5 of the OSA 1989

Discussion

“The Court further reiterates that all persons, including journalists, who exercise their freedom of expression undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see, for example, Handyside v. the United Kingdom, 7 December 1976, § 49 in fine, Series A no. 24). Thus, notwithstanding the vital role played by the press in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (see, for example, Bladet Troms0 and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III, and Monnat v. Switzerland, no. 73604/01, § 66, ECHR 2006-X).”
“WikiLeaks has published its full archive of 251,000 secret US diplomatic cables without redactions, potentially exposing thousands of individuals named in the documents to detention, harm or putting their lives in danger. The move has been strongly condemned by the five previous media partners, the Guardian, the New York Times, El Pais, Der Spiegel and Le Monde who have worked with WikiLeaks publishing carefully selected and redacted documents.” .... “We deplore the decision of WikiLeaks to publish the unredacted State Department cables which may put sources at risk, the organisations said in a joint statement. Our previous dealings with WikiLeaks were with a clear basis that we would only publish cables which had been subjected to a thorough joint edited and clearance process. We will continue to defend our previous collaborative publishing endeavour. We cannot defend the needless publication of the complete data. Indeed, we are united in condemning it.”
“The Times and the other news organizations agreed at the outset that we would not disclose — either in our articles or any of our online supplementary material — anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromise American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site.”
“He was angry that we declined to link our online coverage of the War Logs to the WikiLeaks Web site, a decision we made because we feared — rightly, as it turned out — that its trove would contain the names of low-level informants and make them Taliban targets”
“As for the risks posed by these releases, they are real. WikiLeaks’s first data dump, the publication of the Afghanistan War Logs, included the names of scores of Afghans that The Times and other news organizations had carefully purged from our own coverage. Several news organizations, including ours, reported this dangerous lapse, and months later a Taliban spokesman claimed that Afghan insurgents had been perusing the WikiLeaks site and making a list. I anticipate, with dread, the day we learn that someone identified in those documents has been killed.”

The Right to Truth/ Necessity

Discussion

“It is clear that the scheme of the Act, and such authority as there is, lead to the very clear conclusion that in determining the issue of dual criminality the court examines the documents constituting the extradition request. It determines on the basis of that material whether the conduct alleged in the documents constitutes an offence under the law of England and Wales. It is not permissible for a requested person to put in evidence contradicting what is set out in the extradition request, unless he can bring himself within the very narrow exception to which we refer at paragraphs 14 and following below. The court must proceed to determine the issue of dual criminality on what is set out in the extradition request alone”.
“.. So in our judgment the way to reconcile the authorities to which we have referred is to regard the defence as being available when a defendant commits an otherwise criminal act to avoid an imminent peril of danger to life or serious injury to himself or towards somebody for whom he reasonably regards himself as being responsible. That person may not be ascertained and may not be identifiable. However if it is not possible to name the individuals beforehand, it has at least to be possible to describe the individuals by reference to the action which is threatened would be taken which would make them victims absent avoiding action being taken by the defendant. The defendant has responsibility for them because he is placed in a position where he is required to make a choice whether to take or not to take the action which it is said will avoid them being injured. Thus if the threat is to explode a bomb in a building if defendant does not accede to what is demanded the defendant owes responsibility to those who would be in the building if the bomb exploded”.
“[Mr. Shayler] cannot identify the action by some external agency which is going to create the imminent (if not immediate) threats to the life and limb of members of the general public as a result of the security services alleged abuses and blunders. This is a fundamental ingredient of the defence. Without it, it is impossible to test whether there was sufficient urgency to justify the otherwise unlawful intervention.. .There is no close nexus between his disclosure and the possible injury to members of the public.”

Section 137(3)(c) - maximum sentence

Section 78(4)(c): the third issue

F. BARS TO EXTRADITION

Section 83A - Forum

Extraneous Considerations - Section 81

Section 81(a)

Submissions of the parties

No decision not to prosecute in 2013

“To show the existence of an ongoing investigation, Defendants have offered two declarations from David M. Hardy, Section Chief of the Record/Information Dissemination Section of the FBI's Records Management Division. See Hardy Decl.; Defs.' Reply in Supp. of Mot. for Summ. J. and Opp'n to Pl.'s Cross-Mot. for Summ. J., ECF No. 16, Second Decl. of David M. Hardy, ECF No. 16-1 [hereinafter 2d Hardy Decl.]. In his first declaration, Hardy states that "[t]he records responsive to plaintiff's request are part of the FBI's active, ongoing criminal investigation into the ... disclosure of classified information [on the WikiLeaks website]." Hardy Decl. 33-34. He further asserts that "release of these records would interfere with pending and prospective enforcement proceedings." Id. 41. After Plaintiff questioned how an ongoing investigation could relate to her—given that she already had been prosecuted, convicted, and sentenced, see Pl.'s Cross-Mot. at 14-15—Hardy submitted a second declaration, clarifying that the ongoing investigation focuses not on Plaintiff, but rather on civilian involvement in the publication of classified information. 2d Hardy Decl. 6 ("To be clear, the FBI's investigation is focused on any civilian involvement in plaintiff's leak of classified records that were published on the Wikileaks website, although plaintiff's conduct is pertinent to the FBI's investigation").”
“As recently as March 15 2016, the Department of Justice in a publicly filed court document confirmed that this investigation continues to this day”. On May 19 2016, in a subsequent publicly filed pleading, the Department reiterated the ongoing nature ofthe investigation...”
“Despite the fact that the Department has continually publicly confirmed through court filings and statements to the press that it is conducting an on-going criminal investigation of Mr Assange, the Department has provided me no substantive information whatsoever about the status of the investigation.”

Discussion

Executive pressure was imposed on prosecutors

Discussion

Assange. President Trump’s comments, above, demonstrate either a positive view of Wikileaks and Mr. Assange or latterly a more neutral view.

Discussion

Allegations regarding US interference in the Ecuadorian Embassy

“It was against this febrile backdrop that Correa authorised a secret programme named “Operation Guest”. It was later renamed “Operation Hotel”. The guest was Assange, politely referred to as el huesped.
The goal, at first, was to stop detectives bursting into the modest ground-floor embassy and dragging Assange away.
But documents seen by the Guardian show it developed into something more complex. The aim seems to have changed from protecting Assange - which propped up WikiLeaks in the process - to spying on him. According to the documents, the counter-espionage effort began nearly six years ago when a team secretly installed CCTV cameras in the Ecuadorian Embassy. They covered the entrance lobby, a meeting room and the mini-balcony from which Assange would periodically address supporters. The agents filmed everyone who came in and out, and kept watch on the street.
[...]
None of this came cheap. The documents set out how Ecuador’s intelligence agency, known as Senain, hired an international security company. Its bill in 2012 was $55,000 (£40,000) a month, paid from a “special expenses” government budget.
[.]
Every month, the security company sent a confidential list of Assange’s visitors to the Ecuadorian president. There were additional “extraordinary” reports. Sometimes, the company included stills from secret video footage of interesting guests, plus profiles and analysis.”
“The Wikileaks founder was arrested at the Ecuadorean Embassy this morning after Government of Ecuador revoked his asylum status. Assange has spent the last seven years taking refuge in the embassy, to avoid extradition, first to Sweden, on a rape charge since dropped, but more recently to the USA.
The President of Ecuador said that Ecuador had "reached its limit on the behaviour of Mr Assange" who is accused of continued intervention in the affairs of other states, and political activity, which is not allowed while claiming asylum.”

Section 81(b)

Discussion

G. PASSAGE OF TIME - SECTION 82

A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have -
“The other main question discussed at some length during the argument is what approach should be adopted to the concepts of injustice and oppression within the meaning of section 82. This is of course touched on in the first sentence of Diplock para 1 and, so far as concerns oppression, it is worth noting too Lord Diplock's statement (at page 284) that ‘the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive’. That said, the test of oppression will not easily be satisfied. Hardship, a comparatively common place consequence of an order for extradition, is not enough.”
“Fugitive” is not a statutory term but a concept developed in the case law, in particular in Gomes and Goodyer which elaborates the principle stated in Kakis. In the context of Part 1 of the 2003 Act it describes a status which precludes reliance on the passage of time under section 14. Before this rule can apply, a person’s status as a fugitive must be established to the criminal standard (Gomes and Goodyer at [27])......

Submissions of the parties

Discussion

“I accept that Mr Assange had expressed fears of being returned to the United States from a very early stage in the Swedish extradition proceedings but, absent any evidence from Mr Assange on oath, I do not find that Mr Assange’s fears were reasonable. I do not accept that Sweden would have rendered Mr Assange to the United States. If that had happened there would have been a diplomatic crisis between the United Kingdom, Sweden and the United States which would have affected international relationships and extradition proceedings between the states.
“It is a matter of regret that instead of continuing these discussions they have instead decided to make today’s announcement. It does not change the fundamentals of the case. We will not allow Mr Assange safe passage out of the UK, nor is there any legal basis for us to do so. The UK does not accept the principle of diplomatic asylum. It is far from a universally accepted concept: the United Kingdom is not a party to any legal instruments which require us to recognise the grant of diplomatic asylum by a foreign embassy in this country. Moreover, it is well established that, even for those countries which do recognise diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts. And in this case that is clearly what is happening.”

G. SECTION 87 - HUMAN RIGHTS

Article 3

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Public denunciations

The jury pool

Plea bargaining

“In the Court’s view, it would appear that plea bargaining is more common in the United States than in the United Kingdom or other Contracting States. However, it is a common feature of European criminal justice systems for a defendant to receive a reduction in his or her sentence for a guilty plea in advance of trial or for providing substantial co-operation to the police or prosecution (for examples of plea bargains in the Court’s own case law see Slavcho Kostov v Bulgaria (28674/03) November 27, 2008 at [17]; Rucinski v Poland (33198/04) February 20, 2007 at [12]; Albo v Italy (2006) 43 EHRR 27 at [22], February 17, 2005; Erdem v Germany (2002) 35 EHRR 15). Often, early guilty pleas will require the prosecution and the defence to agree the basis of that plea. For that reason, the fact that the prosecution or trial judge indicates the sentence which the defendant would receive after pleading guilty at an early stage and the sentence the defendant would receive if convicted at trial cannot of itself amount to oppressive conduct. Therefore. there is nothing unlawful or improper in that process which would raise an issue under art.6 of the Convention”.
“in the federal criminal justice system, a measure of protection is provided to defendants by the role of the sentencing judge whose task it is to ensure that the plea agreement is entered freely and voluntarily. That procedure would apply to the applicants should they choose to enter into a plea bargain”.

Unjust sentencing procedure

“It certainly seems alien to English criminal procedure that the sentence for one offence can be enhanced by reference to matters so serious as those engaged here without a trial, and that is a matter which had concerned the Supreme Court, in the context of mandatory increases above the standard statutory range. [...]
[.]
The Act cannot have been intended to halt extraditions to the USA on the basis of a sentencing practice which its case law suggests has been in place since before its independence. I see force in the approach of the US Courts that if this sentencing practice was seen by the UK or other countries as breaching treaty obligations, there would have been a clarification in the superseding Treaties, but instead there is nothing which excludes that practice”.

Conclusion

Article 7

“There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen”.
“From these principles it follows that an offence must be clearly defined in the law. In its aforementioned judgment the Court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.”
“Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen”.

Discussion

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.
“it has been repeatedly stated that a statute which "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." It noted also that “[i]t is sufficient, though, to satisfy requirements of "reasonable certainty," that while "the prohibitions [of a statute] may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest . . . [and they] will not be struck down as vague, even though marginal cases could be put where doubts might arise." Arnett v. Kennedy,416 U.S. 134, 159, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974)2”.
“..in any event, it is settled beyond controversy that if one is not of the rare "entrapped" innocents but one to whom the statute clearly applies, irrespective of any claims of vagueness, he has no standing to challenge successfully the statute under which he is charged for vagueness. Parker v. Levy, supra,417 U.S. at 756. Finally, the statute must be read in its entirety and all vagueness may be corrected by judicial construction which narrows the sweep of the statute within the range of reasonable certainty.”
“The notice requirement insures that speakers will not be stifled by the fear they might commit a violation of which they could not have known. The district court's limiting instructions properly confine prosecution under the statute to disclosures of classified information potentially damaging to the military security of the United States. In this way the requirements of the vagueness and overbreadth doctrines restrain the possibility that the broad language of this statute would ever be used as a means of punishing mere criticism of incompetence and corruption in the government. Without undertaking the detailed examination of the government's interest in secrecy that would be required for a traditional balancing analysis, the strictures of these limiting instructions confine prosecution to cases of serious consequence to our national security.”
“Without binding the United States to any position here, however, we could advance a number of arguments in response to those challenges. For example, concerning selective prosecution, the United States could argue that because of Assange’s unprecedented conduct, there are no other similarly situated individuals, and even if there were, there was no invidious decision to prosecute. Concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information, and even were they so entitled, that Assange’s conduct is unprotected because of his complicity in illegal acts and in publishing the names of innocent sources to their grave and imminent risk of harm”.

Submissions of the parties

Discussion

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.
“73. In our view, the words in s 91 and s 25 set out the relevant test and little help is gained by reference to the facts of other cases. We would add it is not likely to be helpful to refer a court to observations that the threshold is high or that the graver the charge the higher the bar, as this inevitably risks taking the eye of the parties and the court off the statutory test by drawing the court into the consideration of the facts of the other cases. The term "unjust or oppressive" requires regard to be had to all the relevant circumstances, including the fact that extradition is ordinarily likely to cause stress and hardship; neither of those is sufficient. It is not necessary to enumerate these circumstances, as they will inevitably vary from case to case as the decisions listed at para 72 demonstrate. We would observe that the citation of decisions which do no more than restate the test under s 91 or apply the test to facts is strongly to be discouraged ...”

Relationship between section 91 and Article 3

Although it will be necessary to refer to the argument raised under Article 3 of the ECHR, the relevant provision in relation to proceedings under an EAW is s .25 of the Extradition Act 2003 ...”

“[...] It is not necessary to say any more than that this is a point that does not arise in the present appeals or is likely to arise in other cases. The issue will be determined, as is evident from what we have stated, by the degree of risk of suicide and the measures in place to prevent suicide s ucceeding.”

Prison Conditions

Pre-Trial

Kromberg stated that it is “possible” that Mr. Assange could be placed in protective custody because of his notoriety and “possible” that he could be placed in ADSEG.

Is there a real risk that Mr. Assange will be subject to special administrative measures?

Discussion

Conditions in pre-trial SAMs

“Mr Khatallah was confined to a small, spare cell for some 23 hours per day. Because SAMs prisoners are isolated from all other prisoners at all times, he was only permitted to leave his cell for meetings with counsel (when the floor was cleared for his transport in leg and arm shackles from his cell to a dedicated room where he was subject to surveillance at all times) or for exercise, which generally took place in the middle of the night when all other prisoners were asleep and the exercise area was empty. He frequently declined exercise rather than be awakened to walk around a darkened empty area. He was not permitted to retain any documents in his cell”.
“Inmates were in solitary confinement, technically, for 24-hours per day. There was absolutely no communication, by any means, with other inmates. The only form of human interaction they encountered was when correctional officers opened the viewing slot during their inspection rounds of the unit, when institution staff walked through the unit during their required weekly rounds, or when meals were delivered through the secure meal slot in the door. One-hour recreation was offered to inmates in this unit each day; however, in my experience, often times an inmate would decline this opportunity because it was much of the same as their current situation. The recreation area, in the unit, consisted of a small barren indoor cell, absent any exercise equipment” (§11)

Post-Trial

Is there a real risk that Mr. Assange will be housed at the ADX Florence?

The Psychiatric Evidence

The defence medical evidence

Professor Kopelman

Dr. Deeley

The US medical evidence

Dr. Blackwood

Professor Fazel

Daniel Guedalla

Findings on the medical evidence

The Turner Criteria

A substantial risk

The capacity to resist the impulse to suicide

The risk he will succeed in committing suicide whatever steps are taken

Evidence of mental health care in the BOP generally

Evidence of mental health care at the ADX Florence

Discussion

Zakrzewski abuse

Submissions of the parties

Discussion

”The court’s task -- jurisdiction, if you like -- is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate.”
“The first is that the jurisdiction is exceptional. The statements in the warrant must comprise statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally). Secondly, the true facts required to correct the error or omission must be clear and beyond legitimate dispute. The power of the court to prevent abuse of its process must be exercised in the light of the purposes of that process. In extradition cases, it must have regard, as Sir Anthony May observed, to the scheme and purpose of the legislation. It is not therefore to be used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant, this being a matter for the requesting court. Third, the error or omission must be material to the operation of the statutory scheme. No doubt errors in some particulars (such as the identity of the defendant or the offence charged) would by their very nature be material. In other cases, the materiality of the error will depend on its impact on the decision whether or not to order extradition. The fourth observation follows from the third. In my view, [counsel] was right to submit to Sir Anthony May in Murua that the sole juridical basis for the inquiry into the accuracy ofthe particulars in the warrant is abuse of process.”

The Most Wanted List

Discussion

The encrypted password hash

Discussion

The alleged risk to human sources

Discussion

The new allegations and the scope of counts 1 and 2

“...The second observation, which I make with reference to the test of double criminality in section 64(3) , is this. A judge may conclude that this test is not satisfied because part of the conduct which is said to constitute the offence mentioned in the Part 1 warrant occurred before it constituted an offence under the law of the relevant part of the United Kingdom if it occurred there. The question is whether in that situation he has no alternative other than to order the person's discharge under section 10(3) . In my opinion it would be open to the judge in such circumstances to ask that the scope of the warrant be limited to a period that would enable the test of double criminality to be satisfied. If this is not practicable, it would be open to him to make this clear in the order that he issues when answering the question in section 10(2) in the affirmative. The exercise that was undertaken by your Lordships in Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147,229-240, shows how far it was possible to go under the pre-existing procedure to avoid the result of having to order the person's discharge in a case where part of the conduct relied on took place during a period when the double criminality test was not satisfied. It can be assumed that the Part 1 procedure was intended to be at least as adaptable in that respect as that which it has replaced..”
“.It seems to me that the argument that effect should be given to extradition arrangements and that the court should seek to avoid discharging a warrant where serious offences are alleged is a powerful one, as is the need to trust the judicial arrangements in other jurisdictions. If excision is necessary to achieve justice in those circumstances then I find it hard to understand how an excision relating to temporal matters should be acceptable whereas one relating to matters of geography should be unacceptable”.

J. ORDERS

410. I order the discharge of Julian Paul Assange, pursuant to section 91(3) of the EA 2003.




VANESSA BARAITSER

DISTRICT JUDGE (MAGISTRATES’ COURTS)

4 January 2021

District Judge Vanessa Baraitser

In the Westminster Magistrates’ Court

Between:

THE GOVERNMENT OF THE US OF AMERICA

-v-

JULIAN PAUL ASSANGE

CONSOLIDATED ANNEX                               Page

The criminal proceedings

Eric Lewis

Thomas Durkin

Journalism

Mark Feldstein

Trevor Timm

Nicolas Hager

Noam Chomsky

Michael Tigar

Political Motivation

Paul Rogers

Daniel Ellsberg

The Official Secrets Act

Carey Shenkman

Jameel Jaffer

The Grand Jury

Robert Boyle

Bridget Prince

Prison Conditions

Joel Sickler

Yancy Ellis

Maureen Baird

Medical Evidence (summarised in decision)

Password Hash Agreement

Patrick Eller

Redacting the Documents

John Goetz

John Sloboda

Jakob Augstein

Christian Grothoff

Stefania Maurizi

Christopher Butler

John Young

The importance of the “Manning” leaks

Clive Stafford Smith

Andy Worthington

Ian Cobain

Patrick Cockburn

Khaled el-Masri

The Ecuadorian Embassy

Aitor Martininez Jimenez

Anonymous Witness 1

Anonymous Witness 2

Cassandra Fairbanks

79


Guy Goodwin-Gill                                                       79

THE CRIMINAL PROCEEDINGS

Eric Lewis

Thomas Durkin

JOURNALISM

Professor Mark Feldstein

Assange is a journalist and entitled to protection under the Constitution, the implications of this indictment for journalism, and the political dimensions of the case. He was not paid to give evidence in this case but attended on a “pro bono” basis.

November 2013 This he considers appears to be an authorised article coming from top levels of the justice department. He considers the account reliable and based on reliable sources.

Trevor Timm

Nicolas Hager

Noam Chomsky

Michael Tigar

POLITICAL MOTIVATION

Professor Paul Rogers

“We must form our own networks of strength and mutual value, which can challenge those strengths and self-interested values of warmongers in this country and in others, that have formed hand in hand an alliance to take money from the US - from every NATO country, from Australia - launder it through Afghanistan; launder it through Iraq; launder it through Somalia; launder it through Yemen; launder it through Pakistan; and wash that money in peoples’ blood”. He refers to the “information we have revealed showing the everyday squalor and barbarity of war, information such as the individual deaths of over 130,000 people in Iraq, individual deaths that were kept secret by the US military who denied that they have counted the deaths of civilians... Instead, I want to tell you what I think is the way that wars come to be and that wars can come undone. ... It should lead us also to an understanding because if wars can be started by lies, peace can be started by truth.”

Daniel Ellsberg

THE OFFICIAL SECRETS ACT

Carey Shenkman

Jameel Jaffer

THE GRAND JURY/ FAIR TRIAL / CHELSEA MANNING

Robert Boyle

Bridget Prince

PRISON CONDITIONS

Joel Sickler

Yancey Ellis

Maureen Baird

Lindsay A Lewis

MEDICAL EVIDENCE / DR. LEUKFELD’S REPORT

THE PASSWORD HASH AGREEMENT

Patrick Eller

Nobody: any good at 1m hash cracking?

Nathanial Frank: yes

Nathanial Frank: donations, not sure

Nathanial Frank: something in order of 5M

Nathanial Frank: but we lost our CC processor, so this is making matters somewhat painful

Nathanial Frank: we have rainbow tables for 1m

Nobody: 80c11049faebf441d524fb3c4cd5351c

Nobody: I think it’s 1m + 1mnt

Nobody: anyway...

Nobody: need sleep&gt,yawn&gt

Nobody: not even sure if that’s the hash. I had to hexdump a SAM file, since I don’t have the system file. Then your Frank: what makes you think it&apos,s 1m?

Nathanial Frank: it’s from a SAM?

Nobody: yeah

Nathanial Frank: passed it on to our 1m guy

Nobody: thx

REDACTING THE DOCUMENTS

John Goetz

Professor John Sloboda (and Hamit Dardagan)

298 victims. Further analysis since 2010 has raised the number of incidents, sourced solely from the logs, from 61 to more than 3000. He stated that there has been almost no information from the US government sources regarding the information in the logs, and ten years on, they remain the only source of information for the many thousands of violent civilian deaths in Iraq.

Jakob Augstein

Christian Grothoff

Stefania Maurizi

Christopher Butler

Andy Worthington

Ian Cobain

Patrick Cockburn

Khaled el-Masri

THE ECUADORIAN EMBASSY

Aitor Martininez Jimenez

Anonymous Witness 1

Anonymous Witness 2

Cassandra Fairbanks

Guy Goodwin-Gill

VANESSA B ARAITSER

DISTRICT JUDGE (MAGISTRATES’ COURTS)

79


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