John Helmer: The Julian Assange Case Now Puts the US on Trial in a British Court – Is There a Get-Out-of-Jail Card for Assange?

Yves here. Helmer’s sources argue the defense strategies for Assange in his extradition case in the UK and how they might play out. Although the deck is stacked against Assange, his cause is not hopeless. For instance, his case has been assigned to a judge noted for her independence. The case looks likely to extend till past the next general election, and if Labour were to take power, a change in the UK’s posture toward Assange could also have an impact.

By John Helmer, the longest continuously serving foreign correspondent in Russia, and the only western journalist to direct his own bureau independent of single national or commercial ties. Helmer has also been a professor of political science, and an advisor to government heads in Greece, the United States, and Asia. He is the first and only member of a US presidential administration (Jimmy Carter) to establish himself in Russia. Originally published at Dances with Bears

The case for and against Julian Assange (lead image, 3rd from left) will keep him in the UK for at least eighteen months, probably two years, possibly three, according to leading London lawyers.  The UK will have a new government by then; the US too.

In the interval, Assange’s lawyers are preparing to prove the US indictment for conspiracy to commit computer hacking will be superseded by espionage charges. That, they will argue, requires the Westminster Magistrates’ Court to throw the US extradition application out. In addition, their  evidence for American  political motivation in the prosecution of Assange, and of US violations of the UK and European standards for a fair trial in an independent and impartial court, will be presented. The Chief Magistrate, Emma Arbuthnot, is likely to preside. The hearing is unlikely to start before December of this year.

The more UK and US Government officials take sides in public against Assange and support the allegations in the indictment, the stronger his case will be in court. The announcement by public letter  to the Home Secretary last week that seventy-one members of the British parliament oppose Assange’s extradition to the US cuts even more of the ground from under UK prosecutors and the lawyers who will appear in court for the US.

Reversing their campaign to block the Swedish extradition warrant between 2010 and 2012, Assange’s lawyers are also mobilizing to have the Swedish prosecutors return to London with a new warrant, so that this can stretch out the legal wrangling in London for long enough to reach a new British election. If won by Jeremy Corbyn and the Labour Party forms a new government, Assange may benefit from a decision to move Assange’s prosecution to the UK courts, and then to release him.

“The anger for and against this man is extraordinary”, explains a leading London lawyer on extradition cases. “You need very technical lawyering now, and Assange will have to pay for it.  But in parallel there will be the PR campaign amplifying the political issue, principally for the Labour Party. The Assange case will stand for every British voter’s idea of what [President Donald] Trump and the Americans are doing to the world.  [Chief Magistrate Emma] Arbuthnot is not afraid to make decisions that would be unpopular. But as independent as she is, the pressure on her will be huge not to rule against the US.”

“And so it is for the British court system. Either the courts are bending to the US or to the anti-American movement. It’s going to take a bloody long time and a bloody waste of public money”

It was Assange’s defeat in the Supreme Court, the highest of the British courts,  on May 30, 2012, which triggered within days his move to the Ecuador Embassy in London and his asylum there, which ended last week.  Read the judgement in full here.

That case turned on the technical legal issue of “judicial authority”; that was whether the Swedish prosecutors’ warrant of arrest for Assange on sexual molestation and rape charges was lawful in the UK. The court decided it was, but it was a split decision. Two of the seven judges ruled in Assange’s favour.

The Swedish charges were based on allegations by two women for events which took place in Sweden in August 2010. The timing was five months after Assange began the process of publishing the US military files obtained by Chelsea Manning; the most important of these was the secret US film of a US Army helicopter attack on Iraqi civilians, killing 18 – evidence of a war crime. The US indictment of Assange, released last week,   identifies the dates of his alleged offences with Manning between March 2 and 10, 2010. This timing will prove to be important later in the British courts because Assange’s whereabouts in March of 2010 aren’t mentioned in the US indictment. New York Times reporting indicates he was in London. If he was in the UK when the alleged offences took place, and if he was publishing from the UK, then his lawyers will make the case that the appropriate forum for a trial on the US charges is in a British court, not an American one.  “The forum argument”, says a London legal source, “has prevailed recently but so far only for British citizens operating in the UK.”

The source says that if Assange were able to win the forum argument,  requiring the prosecution on the American charges to be moved to the UK, it would be up to the Director of Public Prosecutions (DPP) to decide whether to do so, or not.  If the Conservative Government has been replaced by Labour, by the time the DPP would face a decision on Assange, Prime Minister Corbyn would have the authority to stop the proceeding.

“He’s not facing justice in the UK,” Assange’s principal London advocate, Geoffrey Robinson QC said (minute 19:40) on Saturday.  “The justice he is facing is justice, or injustice, in America… I would hope the British judges would have enough belief  in freedom of information to throw out the extradition request… I have faith in them. But whether I have faith in the US Supreme Court is another matter.”

Robertson  means that the first line of defence for Assange will be to put the US on trial in the magistrates’ court for politically motivated persecution, torture (of Chelsea Manning), and multiple abuses by US courts in national security cases. In short, the Article 6 argument. This refers to Article 6 of the European Union Human Rights Convention;   this is incorporated in the UK’s Human Rights Act of 1998.

Justice Arbuthnot (right) has been clear in two judgements last year that the Russian Government fails a key test on this standard.  In the case of a Russian warrant for fraud and embezzlement by a Rosneft executive and one-time board director, Andrei Votinov, Arbuthnot concluded “this is one of those exceptional cases where the defendant [Votinov] has shown there is a real risk that he will suffer a flagrant denial of justice if he were to be extradited to the Russian Federation.” Although Arbuthnot ruled against experts testifying that there was political motivation in the case against Votinov, she dismissed the warrant. Read the details, and the Arbuthnot ruling, here.

“There is evidence in this case of a close tie between big business and politics,” Arbuthnot decided. “Professor Sakwa says Mr Votinov was resisting Mr Sechin’s political machinations and that is why he is being prosecuted. In the Russian Federation it is often hard to distinguish between politics and business and therefore I find that the circumstances set out by the Professor if proved might fall within the definition of section 81 [of the Extradition Act].  I find no evidence however, sufficient to support the bar [to extradition].”

In the case of alleged Russian bank fraudster Ilya Yurov, Arbuthnot accepted expert evidence on the conditions of Russian prisons. She also accepted that Russian courts are susceptible to government pressure in high-profile cases. “I cannot see how [Yurov] could not be prejudiced… there is a real risk he will suffer a flagrant denial of justice. His would be a very high-profile prosecution of particular interest to the [Russian state] and these are very exceptional circumstances.” Yurov was released from his bail and the Russian extradition application dismissed. Read the story here.

For the first time ever in an international court, Assange’s lawyers will be arguing that in this case US prosecutors and US courts  are no better than the Russians; in the prosecution of Assange and Manning  they will argue the Americans are worse.  “The US will come into court very well prepared”, according to a London lawyer. “It’s a rarity for any British court to rule against the US, though this has happened recently on different grounds. Arbuthnot has been tightening the definition of what is ‘political’ in these cases. I can’t see [Assange] winning on the US prejudice argument.”

Baltasar Garzon, the former Spanish magistrate now representing Assange in Ecuador,  has foreshadowed the presentation of evidence of US Government manipulation in Ecuador to force Assange’s expulsion from the embassy.  “The threats against Julian Assange for political motives and the persecution by the United States,” he said, “are more alive than ever. Recently, Wikileaks has been branded a terrorist organization.”

Extradition and human rights lawyers who are not engaged for Assange are certain his case will continue in the British courts for a long time – years for all the arguments to play out in the Magistrates’ Court, the High Court, and the Supreme Court. They are divided on what they believe the outcome will be for Assange. Few are confident that a British judge will rule that the US prosecutors and courts are no better than their Russian counterparts, and dismiss the extradition case against Assange.

There is more confidence, however, that on a narrower issue the lawyers call the specialty rule argument, the British judges may decide in Assange’s favour.  According to the UK-US extradition treaty of 1972, a 2003 Act of Parliament, and decisions of the British courts, it is unlawful for the US to indict, try and punish an individual for an offence that is different from the one for which he was  extradited from the UK. “Special arrangements” or “special rules” must therefore apply to the Assange case, the lawyers agree. They point to a High Court case in 2006, when two men were sought for extradition from the UK on US fraud charges. “The US contends,” the court reported, “that it observes the specialty rule, as a rule of international law and comity, in its trial and punishment of those who are extradited to it. That is hotly contested in this appeal… [the defendants argued that ] the US habitually violated the spirit and purpose of the specialty rule… The gravest of the particular charges… was that the US Government would seek and the US Courts would uphold a conviction based on a superseding indictment which alleged offences for which extradition had actually been refused by the UK Government”;  for the full decision, click to open.

The judges in that case decided there was insufficient evidence for the specialty argument, and agreed to the US extradition. He also ruled that a superseding indictment would not be legally acceptable in a US or UK court “if there were evidence that the UK Government had objected or would object to it.”

Sources in London are critical of media speculation that the current US indictment against Assange is a fake, and will be replaced by a new charge of espionage once he is in US hands. Robertson for Assange is more guarded. He has conceded that the US prosecutors may intend to supersede the current indictment, but he signals that this suspicion will be tested in court. His argument will then be that the Americans cannot be trusted to seek the permission required for a new charge.

On proof of that point rests Assange’s best chance of release.

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  1. In War the First Victim is the Truth

    Since the US war machine agencies sees Assange as their enemy, this is a case that should be understood in the context of the three-letter agencies machinations, e.g. Six-Eyes. In relation to these, UK is just a puppet and a poodle. UK has always been the first to jump on the bombing wagon when US so has ordered them.

    The cases about Russian fraudsters are not good cases, since the UK-Russian relations have been strained to say the least. Not extraditing the Russian fraudsters is just to slap Russian authorities in the face, not a proof of independence.

    Moreover, her husband James Arbuthnot served as Chairman of the Defence Select Committee (oversees the operations of the Ministry of Defence and its associated public bodies, including the armed forces) from 2005 to 2014

    1. Oh

      I too, am not convinced that Judge Arbuthnot will rule in favor of Assange. The anti Russian posture of the UK along with the Puppy Dog mentality will probably result in his being extradited. The fact that the Ecuador government was swayed by a large loan is already a sign of the Empire’s reach.

      1. Jack Parsons

        Independent judges is one of the core aspects of British society that makes it liveable.

  2. Laws for Me and Laws for You

    Also, after having had to learn new-speak about just about everything at least since the Saddam and WMD I think the cued message “no one is above the law” gives it all away: Assange will get absolutely zero protection by the law.

    1. Code Name D

      “No one is abovee the law” is in truth, code for the idea that certain people are beneith it.

  3. Pavel

    And giving us some hope where there is precious little… thank you.

    Let’s pray that Julian is at least getting some much-needed medical care whilst in the UK prison… but who knows how they are treating him?

    1. Clive

      Not especially well, most likely. Not only is prisoners’ mental health poorly monitored, there isn’t even serious measures in place to start monitoring it.

      The only saving grace is as a cause célèbre, he will get the best legal representation possible.

    1. Harrold

      I believe that the women who were involved with Julian have tried to end the case several times.

      1. Procopius

        I thought the Swedes dropped the “investigation” and tried to withdraw their extradition request a couple of years ago. The Crown Prosecution office refused to let them. What I’ve read recently is that the Crown Prosecution Office is begging them to reopen their “investigation.”

      2. Jack Parsons

        There’s a lot of nonsense around this aspect, and I don’t know how to find the truth.
        But, it’s very important that nobody has been extradited around the EU for ummmm… “sex crimes with a consensual context”.

        Another point: does Brexit change the legal landscape for extradition to Sweden?

  4. The Rev Kev

    I can imagine the any good defense counsel will turn the court into a Roman holiday by putting both the Swedish and US legal systems under scrutiny. The Swedes were screwing with their own laws to get Assange and refused year after year to interview Assange so they may have to justify their conduct here. The Swedish Ministry of Justice may find it very awkward answering for their conduct for all those years on the stand under oath.
    With the US it may get more intense as the defense may argue against sending Assange to the US as it is a torture state. Remember, a torturer has been made head of the CIA. They may also bring up the treatment of Chelsea Manning and Maria Butina. The United Nations defines as torture putting people into solitary for more than 15 days and both those people have spent a considerable more length of time than that. Add in other facts and that court room may get rather heated.
    Even if Assange gets off, where can he go? If he tried to fly out of the UK the US would send fighters up to force it to land at a US base. They did that with the Bolivian president’s plane because they thought that Snowden may have been aboard. And don’t forget that extraordinary rendition is still a thing. I am not even sure that a Sander’s presidency would make any difference here. I doubt that Justice Arbuthnot is the sort of person to order Assange taken from Court and sent to the nearest airport for a flight to the US so I expect this to be drawn out over years.

    1. Heliopause

      Assange would certainly be a target for more extreme elements in the US deep state (smarter ones would realize, moral considerations aside, that killing or rendering him would be bad PR). So I’ve been thinking for a while that if he were to be set free there wouldn’t be a truly safe place for him anywhere on the planet. I doubt that Russia or China want anything to do with him, and even if they took him he’d be subject to the whims of the government (as with Ecuador). I was thinking maybe Kim Dotcom’s estate in New Zealand (assuming that Dotcom himself isn’t extradited to the US), where he’d be with a like-minded benefactor and under heavy security, but that too would be subject to the whims of the government.

  5. Matthew G. Saroff

    How will the case change if Brexit is completed, which might mean that the European human rights convention being rendered moot?

    1. Basil Pesto

      as Clive touched on, Helmer made an error in describing the European Union Human Rights Convention. He’s referring to the European Convention of Human Rights, which is under the aegis of the Council of Europe. It has nought to do with the EU.

  6. juliania

    Thanks for this. The attention being paid to this case is well warranted, since it has to do with historical matters from the conduct of the Iraq war onward. The British courts have the opportunity to address issues that have lain festering with respect to freedom of the press in a manner which has potentially the power of accountability few such occasions have proven themselves able to accomplish heretofore. World attention will be focused, not merely on the person of Julian Assange, but on the activities of governments in the present era.

    We should all rise above our immediate concerns and pay attention. The world and our younger generations especially are watching. This is for them.

  7. Listner2

    The issues here, my perspective, are “Wikileaks is a terrorist organization” (U.S. Attorneys demanding extradition) Wikileaks, “I love Wikileaks” (Donald Trump, supposed leader of the U.S.on film no less) The message is this; You can distribute damaging information about the U.S. government under the guise of a journalist. You may NOT steal that information either through electronic means or any other method. After careful thought, I think we should steal the Mueller report, distribute the good parts, then head to Ecuador and do some haggling about a spot in the embassy, no ? That’s a joke friends. We really DO need humor now !

    1. Susan the other`

      for the US Gov to maintain a legal position in this day and age of zero privacy for you and twist it around so that it is illegal to “steal” information is too rich for my blood. The US Gov has all the info it ever wanted on everyone and everything. Yet somehow it is illegal to have reciprocal information. So that’s one big bad. Another is the very concept of illegal. Illegal is only illegal if it is caught in most cases. In government affairs however, it should not be so. The government is answerable to us and we need to go back to square one and establish that fact. Julian Assange was in the process of doing that in his own way, as are most journalists, but he hit a very raw nerve and now they are going to make him pay for it. It is a travesty of both justice and “government”.

      1. Susan the other`

        And there are all the usual sneaky sleaze balls lined up to get Assange. From the infuriated democrats to the terrified republicans. Look at the mix. Brett Kavanaugh, Wm. Barr, to Nancy Pelosi; John Bolton, Mike Pompeo, – there isn’t one familiar face standing up for Assange. Even Bernie doesn’t go overboard. The stakes are so high that we are now in a nasty trade war with the EU to see who can rat out the other faster. And it is a good cover for Nancy Pelosi to act like she is defending our “sacred institutions” (please spare me Nancy) and go to London and give a speech that the UK “cannot count on a trade deal with the US” when it goes full Brexit. She’s acting like she’s a friend of Ireland. But this is the first I ever heard of it. I think what Nancy is saying is that if the UK doesn’t toe the line with Assange the US won’t do a trade deal at all. I’ve never seen Nancy expose her inner Nancy so emphatically. And recently Bolton told the ICC to just fuck straight off – they would never have jurisdiction over our leaders (primarily it is the Bushes is who we are talking about here). It’s a showdown. Chickens coming home in a big clucking rush.

  8. dearieme

    If I were Arbuthnot I think I might decree “This bloody man has already been locked up for seven years. He should now go free. Meantime I urge Her Majesty’s Government to attempt to obtain financial redress from the Swedish government for the cost of this nonsense.”

  9. Heliopause

    If Assange is extradited the game might not be up even then. I assume he still has cards to play in terms of making a deal, as with the Vault 7 releases.

  10. DHG

    Justice delayed is no justice at all, enough with these players dragging things out to time indefinite.

    1. The Rev Kev

      Yeah, whatever happened to the 6th Amendment-

      “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 defence.”

      So many of the laws that you see in operation are in direct opposition to what those founding fathers wanted based on their own personal experiences. It’s back to 1775 again.

  11. RBHoughton

    The author may personally like Lady Arbuthnot but she does not share the skills of Tom Bingham.

    He mentions time’s arrow effecting Assange’s future without fully mentioning the political dimension. When UK exits the EU it will fall further under the influence of America. Today’s submission will become tomorrow’s subjection. It is the world of finance and spookery that governs England and prospers whether its Westminster or Washington that calls the shots.

    Let’s write the judicial decision down now – the Westminster Magistracy will find Assange guilty of whatever the AG charges him with. Government proceedings will be characterised by subterfuge and concealment until one day we learn Assange is before the FISA court in East Virginia, which has never issued a ‘not guilty’ verdict, charged under the Espionage Act with a capital offense.

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