Category Archives: Extradiction

Democrats Against Assange: Influencing US-Ecuador Relations

Such a historical twist, but one that deserves its iniquitous slot in the history books.  No secret has been made about US policy towards Julian Assange and WikiLeaks, which continues its trajectory to seek his apprehension and shutter the organisation.  Despite its cables being used for political effect by interested parties; despite the exposures of corruption within the ranks of US politics, Assange is to be thanked with punishment.

This is the sentiment expressed by Senator Robert Menendez, the ranking Democrat on the Senate Foreign Relations Committee, along with nine other Democratic senators, in a letter to US Vice President Mike Pence.  The senators had been losing sleep after getting wind of what was said, or rather not said, in a June 4 phone call between Pence and Ecuadorean President Lenín Moreno. One glaring omission troubled them: the absence of any discussion about Assange’s asylum status and stay in the Ecuadorean embassy in London.

Ahead of Pence’s meeting with Moreno this week, the senators wished to press the matter:

As the United States is still seeking clarity about the full extent of Russian intervention in our elections and Russian interference in elections across the world, it is imperative that you raise US concerns with President Moreno about Ecuador’s continued support for Mr. Assange at a time when WikiLeaks continues its efforts to undermine democratic processes globally.

This is a fine take, if dizzyingly inaccurate: WikiLeaks as the great undermining force of democratic states, worrying politicians in the United States who have enthusiastically backed the imperial project of overthrowing democratically elected governments. But slotting Assange, Putin and electoral interference in the same line is bound to have its emotive effect on politicians obsessed with government secrecy.

The charges tend to muddle the broader political landscape, but the intention in the letter is to paint Assange as an architect of discord, comfortably wading in the politics of other states.  That such muck racking is often no more than releasing documents casting a different light on traditional politics is beside the point; Assange interfered in revealing the hidden whispers and clandestine reflections.  Other scenes of engagement are also noted: the French presidential election, and the Spanish referendum on Catalan independence.

What the letter omits to say is that the current US president has expressed his delight at various nuggets he has received from the WikiLeaks trove.

I simply state what he states, it is for the people… to make up their own minds as to the truth.  The media lies to make it look like I am against ‘Intelligence’ when in fact I am a big fan!

The specific reading advanced by the Democrats builds upon the stance that Assange as a radical transparency vigilante must be potted.  It regurgitates, in uncritical form, the designation by former CIA director Mike Pompeo that WikiLeaks was a “non-hostile intelligence service often abetted by state actors like Russia.”  It makes the facile link between WikiLeaks and Russia’s Main Intelligence Directorate (GRU) in suggesting that the publishing outfit was used “to release hacked information in order to influence… the 2016 US Presidential election.” (Use here is conflated with manipulation, collusion, and conspiracy.)

The content, and veracity of such material, is deemed irrelevant.  And rather than being content with his arbitrary detention in Ecuador’s embassy compound in London, as found by the UN Working Group on Arbitrary Detention, there is a desire to take the next step.

As for the meeting with Ecuador’s Moreno, the White House was short if vaguely ominous:

The Vice President raised the issue of Mr Assange.  It was a constructive conversation. They agreed to remain in close coordination on potential next steps going forward.

The Senators’ letter also made the observation that US-Ecuador relations for the last decade had been “marked by unfortunate tensions.  However, under President Lenín Moreno’s leadership, there is a unique opportunity to reverse this trend.”  A change presented itself now to “forge a new chapter in longstanding relations with the United States and Ecuador built on shared values, and address remaining challenges between our countries.”

Too much bad blood exists within the Democratic camp about Assange, who has become a proxy hate figure for a party that bungled the US presidential elections in 2016.  A steadfast refusal to accept the result, not to mention the inadequacies of their candidate where it most mattered permeates through the Mueller investigation and Russia Gate, all tied together by a bow of grievance.

A note from Harry Cheadle writing for Vice in the lead up to the 2016 election is instructive in painting the picture that emerged from the DNC-Podesta trove released by WikiLeaks. The emails portrayed an “organization that is contemptuous of opposition, often obsessed with how an issue is perceived, and yet sometimes prone to decisions that seem self-defeating and dance on the knife edge of political disaster.”  The chickens, notably of the socialist variety, are vengefully coming back to roost.

Scratching for ideas and options in ambushing President Donald Trump, it is clear that the senators have latched on to the next best thing: revoking the political status of a man with no internet access who will be arrested the moment he steps out of the embassy door. How fittingly democratic of them.

Assange, Judge Arbuthnot and the Arrest Warrant

Justice is an elastic concept.  Like other terms in law, it has room to expand and contract.  But one weakness burdens legal strictures that supposedly have an objective reality to them: power.  Power brutish, power as a spectral force, and power arbitrarily exercised.

Any reading of Julian Assange’s case must be, to that end, understood as a dynamic less of law than power.  Having challenged its operations in the international system, he was bound to be its recipient.  In assessing his conditions of detention on the Ecuadorean embassy in London, black letter lawyers prefer an interpretation without the influence of power, clean and clear.  Focus is had on individual volition and purpose: up stakes, Assange, and face the legal music!  That music remains the score sheet of a warrant for his arrest.

Such reasoning is woefully inadequate given the feathers the man has rustled.  A number of states, the United States most preeminent amongst them, has demanded his pound of flesh.  Mike Pompeo of the Central Intelligence Agency has admitted with refreshing candour how US authorities are considering avenues on prosecuting Assange and those associated with WikiLeaks.

Having soiled many a stable with the work of WikiLeaks and disclosures of classified information, treating Assange as a minor offender, one merely deserving of a parking ticket, is entirely erroneous.  But it is a view that persists, even after the collapse of the Swedish case against him.

Chief Magistrate Emma Arbuthnot, taking a view shared by many members of her profession, proved inelastic in assessing Assange’s appeal against the arrest warrant.  She did not, for instance, feel that the UN Working Group on Arbitrary Detention had much truck in its 2016 decision favourable to him.

Assange, she was more or less surmising, was an unconscionable brat, a person who believed laws insufficient to bind him.  “I find arrest is a proportionate response even though Mr Assange has restricted his own freedom for a number of years.”  The arch manipulator had to come clean and descend from his Olympus.

“The impression I have, and this may well be dispelled if and when Mr Assange finally appears in court, is that he is a man who wants to impose his terms on the course of justice.  He appears to consider himself above the normal rules of law and wants justice only if it goes in his favour.”

Some observers were not immune to the sense that the judge had gotten personal.  Rather than focusing on the finer points of the ruling, a moral assessment was in order. “At times,” went ABC correspondent Lisa Millar, “it felt like a character assessment that went beyond what was needed for this ruling.”

The only way Judge Arbuthnot could understand Assange’s case was like any other defendant, an understanding both flawed and naïve.  “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.”

The problem with this reasoning is that the “choices” in question have been shown to be thinly manipulated grounds, notably those centred on a prosecutor’s brief from Sweden that was pursued till it expired with time.  At no point was Assange ever charged for sexual offences, a niggling point that the righteous followers of positive law forget.

When concessions were finally made to interview him in the Ecuadorean embassy on his Swedish sojourn, nothing of substance emerged. What did, however, lurk with sinister force was the role played by British authorities to prolong the matter.

It is beside the point that Assange may leave his confines at any time.  But removing a police presence before a minefield doesn’t remove the mines.  He may well walk out and face the heralds of law.  But the issue of skipping bail is not a stand-alone matter of legal delinquency. The grounds for extraditing him to Sweden have evaporated, making the issue academic. What remains is the prospect of surrender to the United States, a point that is far from negligible.

None of this matters to the judge, who decided she knew geopolitical malice, or issues of trust, better than most. “I do not accept that Sweden would have rendered Mr Assange to the United States.”

A good dose of speculation followed.  “If that had happened there would have been a diplomatic crisis between the UK, Sweden and the US, which would have affected international relationships and extradition proceedings between states.”

Not in the least.  What all three states have demonstrated are strong ties in terms of extradition, common grounds when it comes to dealing with international trouble makers.  The Lauri Love decision does, admittedly, offer some room for hackers and those of Assange’s ilk to avoid the fate of ending up in the US prison system.

Far from precipitating a crisis, rendering Assange or extraditing him would have been seen as the ridding of a problem, removing a chaos maker, as it were, from the already troubled soup of international relations.  Charmingly for such judicial officials as Judge Arbuthnot, the rule of law remains immune from political influence, despite scant evidence of its practice.

Lauri Love: Hacking and Extradition

Horse-trading determines who goes to jail and for how long.  That is what plea bargaining is.  It is not some adjunct to the criminal justice system; it is the criminal justice system.

— US Supreme Court Justice Kennedy (2012)

The February 5 decision of the British court refusing to permit the extradition of hactivist Lauri Love was more than an opinion. It was a reproach.  While a quiet confidence had been expressed that the decision would go his way, not permitting his extradition might also dint various trans-national security efforts.  Prosecutors were taking note.

Love had been accused of hacking into the systems of various US institutions: the FBI, NASA and the US Central Bank.  Such accusations were so grave as to endanger Love with a potential prison sentence of 99 years – provided the US authorities could convince the courts that extradition from the UK was warranted.

They were initially successful, convincing District Court Judge Tempia sitting at Westminster Magistrates’ Court that any harm Love might suffer was conjectural.  Despite being diagnosed with Asperger Syndrome, antibiotic resistant eczema and major depression, not to mention finding that Love was a high suicide risk, the 2016 ruling favoured extradition.  Love’s appeal was heard on November 29-30 by the Lord Chief Justice, Lord Burnett of Maldon and Mr Justice Ouseley.

US prosecutors do not take kindly to hactivists.  Aaron Schwartz, known for developing the RSS software undergirding the syndication of information on the Internet, remains one of the most notable, and tragic, casualties in this instance. What he faced was a weapon commonly used in such instances, the brutally all capturing Computer Fraud and Abuse Act of 1986.  His alleged crime was to have enabled free access to an academic website, JSTOR through the MIT computer network.  This anti-capitalist sin meant a possible fine of up to $1 million with a princely jail term of 35 years. Schwartz preferred suicide.

Supporters of Love preferred to focus on keeping the trial local, citing the case of Gary McKinnon, who was also pursued for computer hacking offences.  Attempts to seek McKinnon’s extradition failed due to the refusal by the then Home Secretary and current UK Prime Minister Theresa May, to do so.

“After careful consideration of all the relevant material,” May explained in October 2012, “I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite him would be incompatible with Mr McKinnon’s human rights.”  In light of that case, vulnerable defendants can make the claim for a forum bar, thereby preventing the extradition from going through in cases where it “would not be in the interests of justice”.

With all that said, adding the “forum bar” to the UK Extradition Act 2003 in 2013 did not alter the reluctance on the part of judges to prevent extradition requests on grounds of forum.  Prosecutorial wisdom, it seemed, was to be respected. They, the assumption went, would have a deeper sense of the facts.

Central to the entire process was the possibility that Love would, in reaching the United States, even have access to a fair trial.  Would he, for instance, be fit to plead?  The pre-trial detention facilities at the Metropolitan Correctional Centre, located in Manhattan, or the Metropolitan Detention Centre at Brooklyn were cited as inadequate in supplying mental health care.  This was even more significant given that Love has been found to be a suicide risk.

A crucial factor in the Love case was the absence of the prosecutor’s belief as to whether the United Kingdom was not the most appropriate forum to try the defendant.  Previous decisions had essentially deemed this a neutral matter.  As the High Court explained in Shaw v Government of the United States of America [2014] EWHC 4654 (Admin), “The judge has to ask whether there is a belief; but if there is not, then he cannot have any further ‘regard’ to this factor.”

The judges in Love’s case effectively repudiated this approach, claiming that the absence of prosecutorial belief on the subject of the appropriate forum was a more than telling factor in considering extradition.  Such “silence is a factor which tells in favour of the forum bar”.

The utterance sent legal analysts into a spin of speculation.  The absence of a prosecutor’s belief regarding the appropriateness of forum had certainly been a common practice.  The decision in Love, claimed Ben Lloyd, suggested that prosecutors had to show greater diligence in making their claim for extradition, certifying, for instance, that the UK was not appropriate. The lack of involvement of a domestic prosecutor, for instance, “could be taken as a factor in favour of the operation of the forum bar” (§34).

The judges did not stop there.  The lower court had, in their view, erred in not accepting the seriousness of the material supplied by Professor Kopelman, Emeritus Professor of Neuropsychiatry. According to that medical assessment, Love’s custody in the United States would be crippling.  “His ability to cope with the proceedings in the trial, to make rational decisions, and to give evidence in a satisfactory manner would be severely compromised.”

In the words of the judges,  “it is clear from the rest of his evidence that severely worsening depression, with the possible onset of psychotic imagery was exactly what Professor Kopelman anticipated” (§31). Such factors were more than mere conjectures.

Love also had a demonstrable connection to family and home.  “His entire wellbeing is bound with the presence of his parents.  This may now have been enhanced by the support of his girlfriend.  The significance of breaking those connections… demonstrates their strength” (§43).

Having been foiled in both the McKinnon case and that of Love, US prosecutors will have to identify different routes when nabbing their quarry.  Hacktivists weighed down by the baggage of mental health will prove a particularly difficult proposition.  The greatest challenge remains: convincing British judges of the suitability of a judicial forum beset by decline and ruin.