Tareq Haddad
Four years into Julian Assange’s imprisonment at H.M.P. Belmarsh, four years since plain-clothed officers from London’s Metropolitan Police Service dragged the WikiLeaks journalist and publisher out of Ecuador’s London embassy, taking him from Kensington to a maximum-security prison, a British judge this week rejected two separate applications made by Assange’s lawyers to appeal his extradition to the United States — striking down all submitted grounds.
In making his judgements, Justice Jonathan Swift, formerly a lawyer for the British government, also struck down the call from Assange’s lawyers to discuss new facts that have arisen in the case — concluding pithily: “The application to rely on fresh evidence is refused.”
In making this ruling, Justice Swift in essence states that irrespective of what we know now since September 2020, when then-District Judge Vanessa Baraitser heard all of the evidence at London’s Central Criminal Court some 32 months ago, nothing new could change his mind with respect to her findings, other than those he permitted British lawyers representing the U.S. government to appeal.
In July 2021, Justice Swift allowed the Crown Prosecution Service lawyers representing the U.S. government, the team led by James Lewis KC, to appeal Baraitser’s original findings that ordered Assange’s discharge on three of five grounds they submitted. In October of that year, after the U.S. was ultimately allowed to appeal all five grounds, two days of appeal hearings were held at the Royal Courts of Justice. By December, the finding by Baraitser — who has since been promoted to a Circuit Court judge — was overturned and Baraitser was instructed to decide the question of Assange’s mental health differently, the issue which initially prevented Assange’s extradition, and she was directed to send the case to then-Secretary of State Priti Patel for approval, who did so the following June.
By contrast, in Justice Swift’s latest involvement with the case, he rejected a total of 12 grounds submitted by Assange’s lawyers across two applications — one against Baraitser’s January 2021 ruling, submitted on June 30, 2022. Another, against Patel’s decision, filed a week earlier on June 23.
In responding to the appeal application on Baraitser’s ruling this week, Swift did not hold back in his remarks. “An appeal under the Extradition Act 2003 is not an opportunity for general rehearsal of all matters canvassed at an extradition hearing.
“The issue is the one posed by section 103 of the 2003 Act: ought the judge to have decided a question at the extradition hearing differently (such that she would have been required to order discharge)?
“That is not a general invitation to the Administrative Court simply, or on all matters, to stand in the shoes of the judge who conducted the extradition hearing.”
Swift took issue with the level of detail submitted by Assange’s lawyers on eight grounds. Initially, in fact, there had been 12.
“There are 8 proposed grounds of appeal,” Swift said. “They are set out at great length (some 100 pages), but the extraordinary length of the pleading serves only to make clear that the proposed appeal comes to no more than an attempt to re-run the extensive arguments made to and rejected by the District Judge.”
He then offers some reconciliation before again striking Assange’s lawyers down.
“To the extent that the proposed grounds invite this court to revisit her evaluative judgments (and this is the essence of most of the proposed grounds of appeal), the starting point now must be that those matters have already been very carefully considered by her during her thorough written judgment.
“In that context, having considered each of the proposed grounds of appeal, I do not consider any raises any properly arguable case.”
In the three-page ruling, Swift then proceeded to snappily conclude why each of the grounds was rejected.
On ground one, on Assange’s lawyers’ point that Section 81(a) of the 2003 Extradition Act prevents extradition if it “is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions” — on account of Assange’s political opinions being the pertinent factor in this case — Swift said: “There is no arguable basis to go behind the Judge’s assessment of this matter.”
Swift said that the criticism from Assange’s lawyers over particular matters that were “not dealt with” in Baraitser’s ruling is not a valid point. “A judgment is not required to address every point put, but rather to set out the reasons for the conclusion reached. In this case the conclusion reached by the Judge is not, even arguably, capable of being undermined by any of the arguments raised.”
The other dismissals came down just as quickly. On ground two: “The submission on whether the District Judge applied the correct test is not arguable.” On ground three: “I do not consider the District Judge’s evaluation of the facts of this case to be arguably wrong.” On ground four: “Neither of the matters raised by this ground of appeal is arguable.”
The judgement continued as so.
On ground five, Baraitser’s judgement “does not show any error.” He added: “The appeal is no more than an attempt to re-run an argument of fact rejected by the District Judge.”
On ground six, “This is a point of no substance.” Ground seven was rejected because it raised the same maters “materially” as ground one. “There is no error in the District Judge’s reasoning on this matter.”
On ground eight, Swift concludes: “This ground repeats submissions made to the District Judge.
“She concluded, and I agree, that each part of the submission was no more than the Appellant advancing an ‘alternative narrative’ setting out contentions that were matters to be decided at trial. None of the points relied on raises any arguable ground of appeal.”
Meanwhile, Swift issued another judgement this week, this time rejecting the four grounds submitted in an application to appeal the decision made by Patel.
On ground one, following the call by Assange’s lawyers that Patel’s decision should’ve also taken the U.S. and U.K. Extradition Treaty into account, not just the 2003 Extradition Act, Swift ruled that Patel was right to only apply the 2003 Act.
On grounds two, three and four, Swift concluded that Patel’s “conclusions were consistent with authority.”
Assange’s lawyers now have until Tuesday, June 13, to make a renewed application to the High Court, as confirmed by his wife Stella Assange in a statement. “The matter will then proceed to a public hearing before two new judges at the High Court and we remain optimistic that we will prevail and that Julian will not be extradited to the United States where he faces charges that could result in him spending the rest of his life in a maximum security prison for publishing true information that revealed war crimes committed by the U.S. government.”
In making their arguments, Assange’s lawyers will no doubt look to challenge Swift’s assertion that new matters arising since September 2020 cannot be considered by a potential High Court appeal.
For instance, just this week, there was the bombshell revelation that Spanish police omitted over 200 gigabytes of data obtained by a court-ordered search on the home and business premises of UC Global founder David Morales from a judge investigating the former Spanish marine.
Among those files which never made it to the judge, and by extension Assange’s lawyers, is a folder titled “Operations&Projets” in which further directories are broken down by region.
Going to “North America” and then “USA”, a folder is found with the title “CIA”. In it, there are images and video footage from the secret surveillance undertaken in the Ecuadorean embassy — this finding is significant as it’s the first time the three-letter agency is explicitly mentioned in Morales’ files. It proves beyond a reasonable doubt that Morales — whose firm UC Global was contracted to provide security for the Ecuadorean embassy in London, sold Assange and the Ecuadoreans out to the US government who, while pursuing Assange’s prosecution, spied on his meetings with lawyers and medical professionals.
Meanwhile on Wednesday, four U.S. citizens, in their ongoing civil suit against the CIA and its former director Mike Pompeo, introduced this Spanish evidence in their latest motion which called on the judge to reject the defendant’s motion to dismiss.
There is also the matter of Pompeo’s January 2023 memoir titled Never Give an Inch: Fighting for the America I Love in which he describes Assange as his “enemy.” If this evidence is not introduced in Assange’s appeal, we are expected to accept that Assange’s prosecution is not political, in spite of these type of comments from political appointees.
There is also another memoir of a political appointee — this time In the Thick of It by Sir Alan Duncan, the U.K.’s former minister of state for the Americas, published in April of 2021. It details Duncan and the British Foreign Office’s close involvement in negotiation’s on behalf of the U.S. to secure Assange’s imprisonment.
Writing of April 11, 2019, the day Assange was grabbed out of Ecuador’s embassy, Duncan said: “Suddenly it’s game on: I’m told Assange will be sprung from the embassy today. So I drop everything and head to the Operations Room at the top of the Foreign Office. Operation Pelican is go — suitably assisted by one official wearing a pelican-motif tie.”
There, in the Operations Room, Duncan watched a live feed — presumably provided by the CIA.
“We were expecting Assange to be brought out very soon after their arrival, but texts to the Ops Room revealed he had caused a bit of a commotion and had been screaming and bawling while edging towards the Ambassador’s office — at which point he was forcibly restrained.”
He continued: “Then, with military precision, six police officers marched up to line up each side of the entrance steps, to form a protective corridor through which Assange was bundled out at about 10.20am.”
Duncan concluded: “So, job done at last – and we take a commemorative photo of Team Pelican. It had taken many months of patient diplomatic negotiation, and in the end it went off without a hitch. I do millions of interviews, trying to keep the smirk off my face.”
Finally, there is the evidence of Conservative MP David Davis which British justices would be amiss to dismiss. Following Baraitser’s ruling, the former shadow Home Secretary, in office when the U.K.-U.S. Extradition Treaty and the U.K. Extradition Act were introduced in 2003, said Baraitser misinterpreted the intention of Parliament.
He told the House of Commons in January 2021: “Although we cannot, of course, discuss the substance of the Assange judgment here today, the House must note the worrying development more generally in our extradition arrangements — extradition for political offences. This stems from an erroneous interpretation of Parliament’s intention in 2003. This must now be clarified.
“Article 4 of the U.K.-U.S. extradition treaty provides that extradition will not be granted for political offences. In the U.K., the treaty was implemented in the Extradition Act 2003. It has been claimed that, because the Act does not specifically refer to political offences, Parliament explicitly took the decision to remove the bar when passing the Act in 2003. That is not the case – Parliament had no such intention.
“Had it intended such a massive deviation from our centuries-long tradition of providing asylum, it would have been explicit.”
Whether British judges accept new evidence on these grounds is yet to be determined. In Justice Swift’s final direction to Assange’s lawyers, he insisted that any renewed application for an appeal must be short: it must be self-contained and cannot exceed 20 pages.
The case continues.
Editor’s note: An earlier version of this article reported that Justice Jonathan Swift approved all five grounds submitted in the appeal on behalf of the U.S. government. In fact, three were originally approved by Swift before Lord Justice Timothy Holroyde and Justice Dame Judith Farbey approved the remaining two in a subsequent hearing. The article has been corrected thanks to a reader’s observation.