By: Jude Fleming, Independent Investigative Journalist
Republished with corrections: Sept 12, 2018
If the UK had its way, Assange would have been apprehended by UK Police and transferred to US custody by now. But so far that hasn’t happened.
Newly resurfaced confidential emails between the UK’s Crown Prosecution Service (CPS) and Sweden’s Prosecution Authority (SPA) detail a strategic campaign to detain then extradite Julian Assange, deny him due process and sabotage his chances of freedom. There is little doubt that he is a political prisoner of the UK. The email exchanges make it obvious that Assange and his legal team have faced one gross injustice after another; the prime instrument of injustice being the UK government, likely acting on behalf of the US. The UK has not acted in an impartial manner and thus robbed Assange of years of presumed innocence, health, freedom of movement, and time with his children and family.
“I’m tough, I’m hardened by this process and I can take it. However, what right does this government or the US government or the Swedish government have to deny my children their father for five and a half years without any charges in any country? That is a fact I will never forget.” ~Julian Assange
Why is he detained without charge for eight suffocating years? The UK’s CPS tipped the scales of justice against him and it’s time the public is reminded of the perversion behind this imbalance.
It is astonishing that Assange is trapped inside an embassy, under extreme conditions which deprive him of his human and legal rights, because a supposed democracy refuses to allow safe passage out or provide assurances he won’t be extradited to the US. Based on email exchanges previously released via Swedish FOIA it’s clear that Assange’s arbitrary detention has nothing to do with laws, habeas corpus, guilt or innocence or due process but has everything to do with the UK’s subversion of justice. For anyone to say that his incarceration has been self-imposed or that “he could walk out at any time” to “face justice” in light of these emails would be nothing short of delusional. But that has been the UK government’s carefully constructed narrative all along. The UK portrays Assange as evading justice when in fact it thwarted every effort made to advance the case; not only for him but for the two Swedish complainants.
UK Prosecutors admitted to destroying significant documents pertaining to Assange’s case. This article will pick up from where Italian journalist Stefania Maurizi left off in her quest for documents using Freedom of Information Act (FOIA) protocols. She obtained material from Sweden and the UK but noticed gaps and overlaps in the results when she compared documents between the two countries. Initially she received limited results from the UK Information Commission Office (ICO) so she hired lawyers to compel the release of more documents. An information tribunal was held last year. Days prior to the FOIA hearing she received more documents. Maurizi summarised her investigation here.
According to Jennifer Robinson one of Maurizi’s lawyers who represented her at the tribunal: “The CPS has disclosed some material which is very limited. We know there is more.” She noted: “Serious questions must be asked about the role of the CPS. Had the Swedes interviewed Assange back in 2010 one wonders whether this case would have continued for such a long time.”
These often forgotten emails confirm the UK intentionally undermined Assange’s legal and human rights, specifically targeting him for political revenge. For the better part of a decade he has suffered conditions of torture, lost income for his publishing and public speaking work, lost friends to death but not been allowed to attend funerals, lost precious years with his children who have grown up without him and denied access to urgent medical care. The UK should be held responsible. His losses are immense. He is the only Western journalist held as a political hostage in a rogue democratic country.
Assange’s legal team estimate that the UK has or held between 7,500 and 9,000 pages of documents that pertain to his case. A fraction of that was released to Maurizi. The UK claimed it could not provide further material because it was deleted, purged from servers and not retrievable. It also claimed the deletions followed routine procedure based on data retention policy, a staff retirement and the conclusion of the SC extradition ruling. Maurizi’s lawyers argued that the fact that Assange remains actively detained in London based on a nullified EAW and associated bail conditions would be cause for the case to be considered active by the ICO. From Maurizi’s lawyers’ perspective, the ICO’s handling of her FOIA was not routine at all; as long as the UK threatens to arrest him for breaching bail conditions his case should be considered “live” and high profile.
The UK’s denial of material intentionally frustrated the FOIA process. It blocked access to material through deletion and/or heavy redaction of responsive documents, claimed it was routine practice to purge emails even if a case is ongoing, claimed potential national security or diplomatic reasons for secrecy, then ultimately neither confirmed nor denied (NCND) the existence of pertinent records.
FINDINGS FROM FOIA TRIBUNAL:
a. Wikileaks is a “media organization”.
b. There were no more documents to disclose. Paul Close is the lawyer who represented both UK’s CPS and Sweden’s SPA. The emails associated with his CPS account were deleted. The Guardian reported: The CPS justified the destruction of these important records by stating “the email account was deleted following retirement in accordance with standard procedure.” The CPS did not consider the case “live” when the deletions occurred because they related to extradition proceedings which had already concluded.
c. Even if there were documents, the tribunal could neither confirm nor deny their existence. (See The UK’s Hidden Role in Assange’s detention).
d. Theoretically the only documents would be hard copies of emails between the CPS and SPA which were also destroyed.
e. The tribunal also addressed the issue of “public interest”. The ICO argued that it was not in the public’s interest to disclose more material based on concern that it might compromise relations with (an)other nation(s). The ICO withheld information based on a public interest argument when in fact it is in the public’s interest to find out what went on behind the scenes.
Estelle Dehon, legal representative to journalist Maurizi, was interviewed by Dennis Bernstein, radio host of Flashpoints here. Her ideas on the FOIA case are insightful and important. Journalists from around the world need to advocate for greater access to information. The UK’s FOIA protocols need to be re-evaluated to disallow blanket bans on certain types of information, (eg. Communications between US Departments of State and Justice and the UK concerning the Assange case). Dehon’s summary of the tribunal on Cornerstone Barrister’s site is here.
In my own view, if the UK’s ICO is not challenged then the FOIA process is degraded which is counterproductive to its professional purpose. It appears that public authorities are habituating a reflex response of denying access to information which is contrary to genuine public interest. Reputation management concerns should not supersede citizens’ right to access material which is of public concern.
A summary of the tribunal by barrister Estelle Dehon is here.
SALIENT POINTS FROM SWEDISH FOIA EMAIL ARCHIVE
Contents of the archived emails outline the abuse of law which the UK implemented and categorically knew would be damaging to its reputation, credibility and relations with other nations. They were obtained via Swedish FOIA mechanisms and are available online. I retrieved them while doing research.
1. The archive pertains to an extradition proceeding that Sweden issued for Assange’s arrest. Sweden issued a European Arrest Warrant, (EAW) and the UK was obliged to enforce it. Assange spent eighteen months challenging its validity and eventually lost in the UK Supreme Court, (SC). The email exchanges indicate collusion between the UK and Sweden to intentionally prolong the arbitrary detention of Assange.
2. The debate over the application of the Assange EAW had “gone into hyperspace” precisely because there were other pending EAW cases which would be affected by the outcome.Of specific concern, the CPS deliberately excluded Julian Assange from benefitting when the UK revised its extradition laws (2014) wherein Britain no longer enforces EAW’s against persons who have not been formally charged with a criminal offence. The law was revised to reflect fair proportionality of police action based on presumed innocence concerning an EAW suspect. The Assange case was pivotal in bringing about this legal revision yet he was prejudicially excluded. If the revised legal precedent were applied to his case it would have allowed him to leave the country but an exclusion clause was inserted. The clause specified that it could not be applied retrospectively to cases already deemed valid. The UK actually delayed other EAW cases until the Assange matter was determined then inserted the clause as the legislative revisions were debated in Parliament which limited the application of the revised law to ongoing or pending EAW cases and not those which had concluded. Had his case been addressed impartially his EAW case would have been determined based on the new legal precedent which considered proportionality (ie. UK will not extradite an un-charged person to another country especially when other methods of interview are available through Mutual Legal Assistance (MLA) European protocols).
“The SC (Supreme Court) will know that the outcome will have an impact on numerous current pending EAW cases, no matter what. Cases are being adjourned regularly pending the outcome in Assange.” (Paul Close, CPS)
Redux: The CPS accelerated Assange’s EAW case and deliberately created a backlog of other EAW cases whose outcome depended on his matter being resolved negatively. The CPS manipulated the timing and order of Assange’s EAW case to dispense with him while it adjourned other cases so he would not be afforded protections under the revisions. This served the purpose of punishing Assange before any charges were laid or a guilt ascertained and circumventing his access to legally entitled protections. The “Assange exclusion clause” insertion is a problem for UK lofty ethical legal standards. The legal standards for him were uniquely inconsistent, unfair and disproportionate. When standard operating procedures don’t operate consistently the reason is political.
Such tactics must have been orchestrated at the highest level of government. When a law changed in Assange’s favour it did not apply to him; only to the other EAW cases that were adjourned pending the outcome of his case.
3. UK and Swedish authorities treated Assange’s case with casual disdain and lack of professionalism.
“I hope your trip went really well and your granddaughter loved hearing all about the Assange case.” (Paul Close, CPS to Marianne Ny, SPA)
Then there is Paul Close’s snarky comment about Assange’s optional attendance at court, where he says he’s “never known him to miss a photo opportunity.” His tone is snide and condescending. It’s similar in tone to Judge Arbuthnot’s outlandish ruling against Assange last February; almost like Paul Close ghost wrote it on her behalf.
4. It is clear that Assange’s decision to seek asylum in Ecuador’s embassy shocked and confused both UK and Swedish prosecutors. It frustrated CPS efforts to extradite him. Extradition Specialists were consulted. The main question became how to manage his in-accessibilty for removal to Sweden and what options were available to get him into UK custody for transfer. Sweden inquired about custodial timeframes and extension periods. A UK Specialist in Extradition Prosecution clarified legal points and answered Sweden’s questions. Assange had “reasonable cause” because he sought protection from inevitable extradition to the United States with a stop-over in Sweden.
The UK went to great lengths to avoid FOIA obligations and ensure that Assange did not get due process, fair or impartial treatment. Legal remedies for his case were exhausted but were done in such a manner as to undermine his access to justice. Therefore, the case is a political one, not simply a legal one. Assange is a political prisoner. He is not a “fugitive of justice“, he is a victim of UK abuse of power.
“Assange has been kept like a caged exotic pet by UK, likely on behalf of the US.” Jude Fleming
The original EAW concerning him should have been dismissed as a political extradition, based on Section 13 of the UK Extradition Act which outlines conditions barring extradition of a person based on political opinions, but it was not. Assange has been forced to remain in UK for eight years under the ruse that the UK was obliged to enforce a disproportionate, now obsolete, EAW. The outcome has been a catastrophic deprivation of Assange’s fundamental human rights. The United Nations condemned both Sweden and the UK for Assange’s prolonged arbitrary detention. The UK rejected the UN’s ruling, continues to flout his human rights and due process and insulted the UN’s expert panel. It is now conflating a minor bail infraction to such an extent that he is being treated as a cyber terrorist and flight risk. Breach of bail is so minor it does not even need CPS involvement. His ongoing detention is disproportionate to the offence. It was even suggested that the sentences for bail act offences be extended if deemed insufficient to his case.
63. “It is certainly not against the public interest to proceed. Whether section 6 proceedings are initiated will depend on Mr Assange’s circumstances (such as health) at the time he is produced to the court. If section 6 proceedings are launched, Mr Assange can then plead guilty or put forward a reasonable cause for his nonattendance and the court will then adjudicate. If found guilty the court will have the sentencing options available to it including that of committal to the Crown Court if the court finds its sentencing options to be too limited.” ~ Judge Arbuthnot
Conflating bail breach is in keeping with the underhanded methods to strategically incapacitate Assange for an EAW which is no longer in effect for a non existent charge. Arbuthnot’s ruling juxtaposes a bail infraction with a man’s reasonable cause to fear for his life and liberty. Seeking asylum is not a crime. It was an inconvenience for the CPS. Arbuthnot’s ruling was an effort to reactivate an EAW that was formally withdrawn by Sweden 16 months ago.
In the words of Vivienne Westwood, the UK has abused its judicial powers in a “Mis-Rule of Law”, whereby the UK bent the normal application of law in order to exclude him from justice.
“The United Nations define Julian as a political prisoner who should be released immediately with compensation. How can the British people maintain a degree of patriotism and belief in democracy when our Government has abandoned rule of law and imposed misrule?” ~Vivienne Westwood
Assange was and is being given “special treatment” in the eyes of UK law which was adaptable and as fluid as a UK justice system would permit. Previous emails retrieved by Stefania Maurizi show that nothing about the case was/is typical and everything has been “done at break neck speed”. The UK has not applied law equally, fairly or without bias.
Assange is withstanding exponentially disproportionate punishment for allegations(s) which produced no charges or convictions. If this were a board game, it could be called:
“Mis-Rule of Law, the Assange Edition.“
It’s like playing a board game with a compulsive cheater who makes up the rules, subject to change, on a whim, without notice but always in the favour of the cheater-liar. The UK’s consistent tactical approach has been to undermine Assange’s legal and human rights, wage a public relations campaign that put its conduct in a noble light and brands Assange as a cowardly criminal. It’s histrionic disregard of the United Nations ruling is unpacked in full by Liora Lazarus (worth a read).
IMPLICATIONS: Legal and Human Rights
Any criticism or damage that arises from scrutinising these emails is well-deserved. It will affect not only the UK’s international reputation but that of the Commonwealth and the integrity of “Her Majesty’s Government”, (HMG).
The UK has been caught in unethical and prejudicial behaviour toward Assange by pre-empting his extradition case resolution then excluding him from legal protections. Emails from Paul Close demonstrate the strategy for forcing Assange to stay in the UK. Delay the case. Prolong detention. Confuse the story. Coordinate press release with Sweden to advance a libellous version of events. Modify and improvise laws on an as-needed basis. Deny Assange any benefits that would logically apply to him after a law is revised. Every legal effort to challenge prejudicial treatment was sabotaged.
The truth is Assange is not a fugitive. He is a mouse in a mouse trap; skilfully designed and set by UK authorities. He is a caged person, being held in inhumane, tortuous conditions like an exotic pet on behalf of the United States.
Why is Assange being incarcerated without charge in conditions that amount to torture and why does the UK insist on arresting him if he leaves the embassy? Here is what Lady Arbuthnot had to say:
“62. Having weighed up the factors for and against and considered Mr Summers’ arguments I find arrest is a proportionate response even though Mr Assange has restricted his own freedom for a number of years. Defendants on bail up and down the country, and requested persons facing extradition, come to court to face the consequences of their own choices. He should have the courage to do so too.”
The UK has treated his case with contempt but accuse him of being contemptuous for not showing up to court, (when his appearance was optional). Craig Murray summarized the court hearings exceptionally well in his article “All Pretence is Over in the Persecution of Assange“.
How intact is UK justice system? Can anyone trust UK justice now? Certainly not Assange nor his legal team. How far does UK CPS have to deviate from usual application of justice before it is glaringly obvious that it is no longer a legal deadlock but a political one? This legal deviation signals that the solution must be political. It should also signal a pressing need for the UK to return to rule of law, due process, habeas corpus, presumption of innocence and restoration of Assange’s fundamental human rights.
One can speculate on the rationale for such blatant corruption: political revenge, currying the favour of political allies (eg. US) or pre-emptive action on the part of UK to strategically incapacitate Assange and Wikileaks should future corruption come to light. In the battle for information, or control over it, Assange is a prime target for governments who want to restrict the public’s access. Governments who oppose increased access to information have intentionally and strategically incapacitated Julian Assange for eight years. A thorough review of this email archive presents an important opportunity for Maurizi and other reporters to formally challenge the UK’s “culture of secrecy” in court according Estelle Dehon who represented Maurizi during the information tribunal.
ASSESSING PRESENT DANGER
Assange’s greatest adversary is the US who wants to prosecute him for revealing materials which serve the public good but compromise official secrecy (of governments, corporations and persons). His work as a journalist, publisher, author and public speaker functions to empower those who need protection and challenge those with too much power who then abuse it. Consequently he is at the apex of US revenge operations. The US is a dangerous place for him. There is no limit to its appetite for power and dominance. US revenge fantasies would not be fulfilled were Assange to be killed; in order to exact the concentrated revenge the US Empire wants, it must comprehensively destroy him, his associates and his legacy. It must keep him alive so he can suffer under the full weight and strength of US “justice”. Assange has asylum in Ecuador’s embassy to protect him from being extradited to the US where it is certain his human and legal rights will be abused. The UK’s abuse of power thus far is but a mild foreshadow of what awaits him should he ever be extradited for prosecution in the US.
It is possible that the United States is exerting pressure on countries to cooperate with its goal to get him into custody to face US extradition and prosecution on US soil. The US may claim the “right to hot pursuit” with respect to Assange as a high priority target and coerce nations to manipulate their legal conduct to advance this goal. Based on the information in CPS / SPA emails it is possible that UK is exacting political revenge either independently or in concert with the US. It will go to almost any length to apprehend Assange despite the fact that he has not been charged with any offence in any country. Let’s not forget the UK almost stormed the embassy to apprehend Assange. It was an overblown reaction given that he absconded bail, it was a police matter and should not have compromised the Vienna Convention on Diplomatic premises.
Ecuador’s tolerance of the six year asylum deadlock has rapidly deteriorated since Lenin Moreno became president. Ecuador is exerting pressure on Assange to either coerce his surrender to UK police or expel him. Since March 2018 it has severely restr’sicted his access to the outside world, rendering him incommunicado apart from contact with his lawyers. I have called it “coercive surrender” where Moreno actively makes Assange’s continued asylum intolerable and life-threatening to coerce his surrender to UK police. Should he refuse to surrender, Ecuador has threatened to forcibly expel him Assange which would require coordination with UK police. Two scenarios might unfold: 1. Police enter the embassy with Moreno’s permission to apprehend Assange, or 2. A team comprised of police and EMS medical emergency personnel apprehend him under the guise of a mental health crisis. He would then be transferred to a UK hospital or specialised detention facility, in a psych ward, heavily guarded and chemically restrained. In either scenario, he may serve some jail time for absconding bail, remain in UK detention, await a US extradition request then challenge any extradition order that UK would feel “obliged to enforce”.
Given the UK’s treatment of the 2010 EAW against him it’s highly probable the US extradition proceedings would escalate to the Supreme Court and he would lose. Neither he, nor his legal team, nor global citizens can reasonably hope that any US extradition proceedings would be handled impartially. He has no basis to trust UK justice. He would eventually be extradited to the US based on a repeated version of “Misrule of Law”. He wouldn’t have a hope in hell: hellish incarceration, hellish torture and hellish US version of hellish corruption all delivered with hellish might.
The US Version of “Misrule of Law, Assange edition” would outshine the UK version with the power and polish of a seasoned, sociopathic military dictator.
NEXT STEPS FOR ENSURING JUSTICE FOR ASSANGE
1. UK Courts must review earlier legal decisions concerning Assange and conclude any pending matters (ie. drop the threat of arrest for a punitive bail breach infraction and grant safe passage out of the UK).
2. The embassy siege must end. Assange should be able to walk out of the embassy unimpeded, without threat of arrest by UK police and afforded the compensation he deserves.
3. UK compensation must extend to:
a. Assange’s family, who have suffered financially, physically and psychologically
b. Ecuador who has protected him, at great inconvenience, cost, legal and diplomatic efforts and
c. Wikileaks as a media entity and not-for-profit public service publisher.
4. Initiate a Parliamentary Inquiry into the “Assange-exclusion clause” of the revised 2014 extradition law. There is absolutely no reason to retrospectively exclude him from protections to which he is legally entitled according to UK laws in effect today. The UK Supreme Court must review its final judgment and deem the EAW as invalid. Even though Sweden withdrew it, the historical record must be corrected at the highest level.
5. UK must issue a public and formal apology acknowledging its misconduct and the harm it has caused Assange, his family, Ecuador and Wikileaks. Without a public admission of fault, the UK’s justice system will suffer more damage to its reputation. MP’s of UK Parliament might consider launching an inquiry to expose any misconduct or abuse of power then issue clear guidelines against such behaviour. It could also probe the waste of the public purse/taxpayer money spent to guard, investigate, litigate and harass Assange. The evidence points to unfair, biased and prejudicial handling of Assange case.
6. If there is a secret US extradition request to the UK Assange’s legal team might consider an Article 39 case to the ECHR to ensure his protection within the UK if he remains in the UK. The UK Supreme Court expected such a move in June 2012 when Assange’s lawyer made an application to reopen the Appeal of the EAW. Assange might consider taking the case to the European Court of Human Rights (ECHR). The appeal to UK’s Supreme Court had to to with the validity and legal standing of the EAW. Based on the evidence presented above, Assange could have the record corrected and the EAW deemed invalid. Consequently the current status where he faces the threat of arrest by UK police, a monetary fine and possible jail sentence for absconding bail would shift. He would need to do this before Britain exits the European Union (Brexit).
7. Formal complaints should be filed to professional bodies that oversee the ethics and conduct of its members. Specifically, Paul Close needs to be disbarred from the legal profession. His role in the Assange case should be comprehensively studied and the UK Law Society should have an opportunity to assess the degree of malfeasance in his conduct. He may be removed as a member “in good standing” which would limit his ability to function as a lawyer in any capacity. His professional career might be cause for more investigation. If he behaved outside of UK Bar Association ethics in the Assange case, it’s possible he could be found liable for the same in other cases.
a. The UK’s FOIA needs more oversight. The ICO must be compelled to release more documents pertaining to this case. It may take an appeal of the first tier information tribunal decision. The question, “what is in the public’s interest?” is paramount.
b. The UK Supreme Court needs more oversight. Evidence hints that SC decisions were influenced by CPS misconduct.
c. The UK CPS needs more oversight and persons responsible for unethical behaviour must face tangible consequences.
9. Australia must issue an updated passport and repatriate him to Australian soil, under protection, where he can receive urgent and ongoing medical attention as well as spend time with family. It would be tragic if the only way that Assange could be repatriated to his homeland is in a coffin. He deserves a hero’s return. Australia should be actively executing his safe passage and repatriation now.
A number of years ago I reflected on Chelsea Manning and Julian Assange. I wrote this:
“To waste another’s lifespan is the worst larceny.” ~ Jude Fleming
Global condemnation of the UK’s misconduct must be unified and unequivocal. Media organizations, journalism affiliates/committees, Amnesty, RSF, HRW and other human rights groups must increase awareness of this case in order to prevent it from happening to other journalists, publishers and activists.
Diplomatic and propaganda efforts by UK and US governments are no match against truthful information. Henry Kissinger was not a fan of FOIA. He almost considered it The Enemy. See Wikileaks PlusD archive and Wikileaks tweet:
The world must condemn the targeted and protracted attack on Assange and Wikileaks. The only thing worse than the current situation would be if this information did not get the public and parliamentary scrutiny it deserves and Assange were extradited to the US predicated on blatant perversion of justice. Hit the streets in front of the UK Government offices and Ecuador’s embassy in London to demand that the UK free Assange immediately. His time has come.