Document:US Issues Assurances on Assange

Contemplating solitary confinement for life

Stella Assange: “The United States has issued a non-assurance in relation to the First Amendment, and a standard assurance in relation to the death penalty. The Biden Administration must drop this dangerous prosecution before it is too late.”

 Article  by Joe Lauria dated 16 April 2024

---

Subjects: Julian Assange, First Amendment, death penalty, 1917 Espionage Act, Gordon Kromberg, Mike Pompeo
Source: Consortium News (Link)

★ Start a Discussion about this document
US Issues Assurances on Assange

---

The United States Embassy on Tuesday filed two assurances with the British Foreign Office saying it would not seek the death penalty against imprisoned WikiLeaks‘ publisher Julian Assange and would allow Assange “the ability to raise and seek to reply upon at trial … the rights and protections given under the First Amendment,” according to the US diplomatic note.

Assange’s wife Stella Assange said the note “makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a US citizen. Instead,” she said, “the US has limited itself to blatant weasel words claiming that Julian can ‘seek to raise’ the First Amendment if extradited.”

The note contains a hollow statement, namely, that Assange can try to raise the First Amendment at trial (and at sentencing), but the US Department of Justice can’t guarantee he would get those rights, which is precisely what it must do under British extradition law based on the European Convention on Human Rights.

The US Department of Justice is legally restricted to assure a free speech guarantee to Assange equivalent to Article 10 of the European Convention, which the British court is bound to follow. But without that assurance, Assange should be freed according to a British Crown Prosecution Service comment on extraditions.

In USAID v. Alliance for Open Society, the US Supreme Court ruled in 2020 that non-US citizens outside the US don’t possess constitutional rights. Both former CIA Director Mike Pompeo and Gordon Kromberg, Assange’s US prosecutor, have said Assange does not have First Amendment protection.

Because of the separation of powers in the United States, the executive branch’s Justice Department can’t guarantee to the British courts what the US judicial branch decides about the rights of a non-US citizen in court, said Marjorie Cohn, law professor and former president of the National Lawyers’ Guild.

“Let’s assume that … the Biden Administration, does give assurances that he would be able to raise the First Amendment and that the [High] Court found that those were significant assurances,” Cohn told Consortium News‘ webcast CN Live! last month.

“That really doesn’t mean anything, because one of the things that the British courts don’t understand is the US doctrine of separation of powers,” she said.

“The prosecutors can give all the assurances they want, but the judiciary, another [one] .. of these three branches of government in the US, doesn’t have to abide by the executive branch claim or assurance,” Cohn said.

In other words, whether Assange can rely on the First Amendment in his defence in a US court is up to that court not Kromberg or the Department of Justice, which issued the assurance on Tuesday.

“The United States has issued a non-assurance in relation to the First Amendment,” said Stella Assange.

Assange Can Challenge Assurances

Assange’s legal team now has the right to challenge the credibility and validity of the US assurances filed on Tuesday. The US would then have a right to reply to Assange’s legal submissions to the court, which will hold a hearing on May 20 to determine whether or not to accept the US assurances.

If the court does, Assange can be put on a plane to the US theoretically that day. If not Assange would be granted a full appeal against the Home Office’s 2022 order to extradite him. Assange is wanted in the US on 17 charges under the 1917 Espionage Act and one on conspiracy to commit computer intrusion. He faces up to 175 years in a US dungeon.

“The diplomatic note does nothing to relieve our family’s extreme distress about his future — his grim expectation of spending the rest of his life in isolation in US prison for publishing award-winning journalism,” Stella Assange said.

Here is a facsimile of the Diplomatic Note the US sent the UK on Tuesday, 16 April 2024:

In its 66-page ruling on March 26, the two High Court judges wrote Kromberg wouldn’t have said Assange would be without First Amendment rights at trial “unless that was a tenable argument that the prosecution was entitled to deploy with a real prospect of success.”

“If such an argument were to succeed it would (at least arguably) cause the applicant [Assange] prejudice on the grounds of his non-US citizenship (and hence, on the grounds of his nationality),” the judges said. They added:

“The applicant wishes to argue, at any trial in the United States, that his actions were protected by the First Amendment. He contends that if he is given First Amendment rights, the prosecution will be stopped. The First Amendment is therefore of central importance to his defence to the extradition charge.”

This is the statement Stella Assange put out on X Tuesday at 11:36am EDT:

“The United States has issued a non-assurance in relation to the First Amendment, and a standard assurance in relation to the death penalty. It makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a US citizen. Instead, the US has limited itself to blatant weasel words claiming that Julian can ‘seek to raise’ the First Amendment if extradited. The diplomatic note does nothing to relieve our family’s extreme distress about his future — his grim expectation of spending the rest of his life in isolation in US prison for publishing award-winning journalism. The Biden Administration must drop this dangerous prosecution before it is too late.”