Assange: arguments of the requesting state

US says this case is about conspiracy, not mere publication

A hearing to decide whether Julian Assange will be extradited to the United States opened today.

For convenience, it is taking place at the Central Criminal Court (known, from its street address, as the Old Bailey). But it’s important to understand that this is a sitting of the City of Westminster Magistrates’ Court. The judge is District Judge Baraitser. There is no jury because this is not a trial.

Earlier today, I summarised the defence arguments.

The organisation Bridges for Media Freedom has now sent me written arguments filed on behalf of the United States, the country that is seeking Assange’s extradition. The US is represented by James Lewis QC, instructed by the Crown Prosecution Service.

The first document is dated 17 February and was prepared for a hearing scheduled for 17 February.

The second document is dated 2 September and was prepared for the hearing that began today.

Here are a few points from Lewis’s arguments:

  • This is an application for the defendant to stand trial in the United States of America. It is not a trial of the facts or issues, which the defence are endeavouring to make it. The sole questions are whether the statutory requirements of the Extradition Act 2003 are satisfied.

  • A very limited, residual abuse of process discretion is available where the statutory tests or bars to extradition are not engaged. This abuse of process is not to be equated to the abuse of process jurisdiction available in domestic criminal trials. It is an exceptional jurisdiction with a very high threshold and only arises in extradition proceedings if there has been a bad faith manipulation of the English extradition process which is not covered by the statutory scheme.

  • There is a fundamental presumption of good faith which applies to extradition proceedings. The United States is a country with which the UK has entered into five substantial treaties on extradition over a period of more than 150 years.

  • The evidence served by the defence and the issues which its seeks to litigate almost entirely go to trial issues; to rights which are protected within the United States system (at an equivalent level or a greater level than is afforded in the United Kingdom) or to issues which a court in the United States is more appropriately placed to determine.

  • Much of the defence case, even when it comes to reliance upon [human] rights, rests upon a wholesale mischaracterisation of the prosecution case. The [defence] case proceeds as though Assange is being prosecuted for mere publication, having been provided with the materials by Manning, as opposed to his being prosecuted for conspiring with Manning to unlawfully obtain them (with Manning undoubtably committing serious criminal offences in so doing) and then disclosing the unredacted names of sources (thus putting those individuals at risk). 

  • To the extent that the defence case is comprised of an attack upon the President of the United States, it ignores the institutional competencies of the agencies relevant to this case, the Constitution of the United States and the independence of its courts.

  • The defence appears to proceed on the basis that if it makes an allegation, then the prosecution must respond to it and if it doesn’t, the defence allegation must be accepted as true. The prosecution does not take up the invitation to proceed in this way. The burden is on the defence to demonstrate that extradition is incompatible with [human] rights or precluded by a statutory bar or otherwise engages the court’s abuse jurisdiction.

  • A number of defence witnesses [assert], as though it were fact or preordained, that Assange will be subject to detention for the rest of his life. This appears to be premised upon taking the statutory possible maximum for these offences (175 years); ignoring that the sentence is a matter of judicial discretion and treating it as inexorable that Assange will be sentenced to that term. The prosecution does not accept this. Any sentence that he faces will be arrived at having to the overarching sentencing principles which apply and to the United States sentencing guidance.