Monthly archives: February 2024

Assange Final Appeal Day 2 – Your Man in the Public Gallery 224

I approached Day 2 with trepidation. It was not so much being accustomed to having hopes dashed, as having lived so long without hope that it was hard to know what to do with it. At 5:30am I stopped work for a while on writing up Day 1 and went out to walk down the Strand to the court. There was a slightly bigger crowd than had been there the day before at the same time, and happily it included the heroic volunteers saving my place.

A freezing Easterly wind was bustling down the Strand having come express from Siberia, driving before it what felt like a fair chunk of the North Sea, penetrating through layers of clothing with the ease of a ghost through the walls of St Paul’s. I gave the volunteers my opinion of the case so far and what I hoped was a rousing 6am pep talk. They were just astonishingly cheerful in the circumstances. There is a human goodness which can warm from within – I do wish I had some.

Having explained I wanted to publish as much as I could before returning to court, I went back to my Airbnb, where I needed to change all my clothing and even my shoes. I then got back to writing, and dashed off a good few more paragraphs before court, then pressed publish.

I was a little worried that this might be the day I was arrested – my appearance the first day might have thrown the authorities off guard, and I had always thought they would likely think about it a little before acting on the “terrorism investigation” nonsense. But in the event I had no problems at all, and police and court officials continued to be very friendly towards me.

Taking our position in the courtroom, there were still fewer seats available to the public. This is because there was a much larger presence of the “court media”, meaning those London-based journalists with permanent accreditation to the court. They had largely ignored Day 1 as that was Julian’s case; they had however turned up to report the US Government case on Day 2.

I had witnessed precisely the same behaviour at the ICJ Genocide Case in the Hague, where the Israeli arguments on the second day got massively more media coverage than South Africa on the first. The BBC even livestreamed the Israeli case but not the South African, which is a breathtaking level of bias.

So there were fewer spaces available. I was squashed up against the lady instructing the lawyer for the Home Secretary, who was actually extremely nice and kept feeding me mint humbugs as it became increasingly obvious I was struggling against cold symptoms.

James Lewis KC, who had previously led for the US government, was not present. This was unexplained; it is not usual to change the lead KC mid-way through an important case, and judges will generally bend over backwards to avoid diary clashes for them. I have to confess I had rather warmed to Lewis, as I think my reporting showed. I wondered if he had lost faith in his client; it may be of interest that his professional profile lists his most famous cases – but not this most famous case of all.

So his number 2, Clare Dobbin, today stepped up to the lead. She appeared to be on tenterhooks. For a full fifteen minutes before the appointed starting time at 10:30am, she stood ready to go, her papers carefully spread out around the rostrum. She continually looked up at the judges’ chair as though mentally rehearsing zinging her arguments in that direction. Or imagining becoming a judge; how do I know what she was thinking? Ignore me.

It particularly seemed futile that she was standing there all ready to go while we were sitting around her heedlessly chatting, given that we would all have to stand up too when the judges came in, before resuming our places with a fuss of coughing, turning off phones, knocking over files, squashing sandwiches etc. Anyway there she stood, staring earnestly at the bench. This gave me time to remark that she had notably longer hair than the last time she appeared in this case, and the long blond fibres fell completely straight and evenly spaced, ending in a line of hair across the back of her legal gown that was not only perfectly straight but also perfectly horizontal, and remained so no matter how she moved.

It was the most disciplined hair I ever witnessed. I suspect she had shouted it into submission. Ms Dobbin has an extremely strong accent. It is right out of those giant Belfast shipyards that only ever employed Protestants and which produced great liners that sank more efficiently, and in a more Hollywood-friendly manner, than any other ships in the world.

Someone in the shipyard had taken Ms Dobbin’s accent and riveted on a few elongated vowel sounds in an effort to make it posher, but sadly this had caused cracks of comprehension below the waterline.

However, something had happened to Ms Dobbin. She had been stentorian – I had previously described her as Ian Paisley in a wig. But now it took me several minutes to realise she had started speaking. This did not get better. The kindly Judge Dame Victoria Sharp came up with about eight different formulations in the course of the morning to ask her to speak up, like a school teacher encouraging a shy child at a carol concert. All to no avail.

One thing was very plain. Ms Dobbin had lost her faith in the case she was presenting. She hardly tried to argue it. That was not only in terms of volume. Ms Dobbin made very little effort at all to refute the arguments put by the Assange team the day before. Instead she merely read out large chunks of the affidavit provided by US Deputy Attorney General Kronberg in support of the second superseding indictment.

As judges Johnson and Sharp presumably can read, it was not plain what value this exercise added. Ms Dobbin is not so much in danger of being replaced by Artificial Intelligence, as being replaced by a Speak Your Weight machine. Which at least may have a more pleasant accent.

I should explain “Second Superseding Indictment”. The indictment, or raft of charges on which Julian Assange was first held for extradition, was an obvious load of nonsense flung together and scribbled on the back of Mike Pompeo’s laundry list. However, before the hearings started the US Government was allowed to scrap this and replace it with an entirely different set of charges, the “First Superseding Indictment”.

The rendition hearings started with five days of opening argument at Woolwich Crown Court, in the course of which the First Superseding Indictment was torn to shreds by the defence. Therefore – and please read this three times to overcome the disbelief you are about to feel – after the hearings had started and gone through the important opening argument phase, the United States Government was allowed to drop those charges, change them completely and present the Second Superseding Indictment with an entirely new bunch of charges based on Espionage and Hacking.

The Defence did not get to change their opening arguments to reflect the new charges, nor did they get the break of several months they requested to study the new charges and respond to them. Nor were they allowed to change their defence witness list, which consisted of witnesses called to rebut the charges now dropped, not the entirely different charges now faced.

Yes, you did read that all right. No, I can’t really believe it either. Now, let us continue. This is my very best effort to reconstruct, with occasional help from the kind lady from the Home Office, what Dobbin may have mumbled.

Dobbin opened by saying that the defence had made much of evidence being unchallenged. This was a mischaracterisation. All of the defence evidence was challenged.  None should be taken as accepted.

Judge Baraitser, said Dobbin, had shown very considerable leniency in allowing evidence to be heard of dubious relevance. Furthermore there was a nexus of relationships between several of the witnesses, and between some of the witnesses and Julian Assange. Some, including one lawyer, had been previously in his employ. The status and expertise of the witnesses individually and collectively is challenged. Their evidence was directly contradicted by the prior evidence which is contained in the witness affidavits of US Deputy Attorney Generals Dwyer and Kronberg.

This case is not about journalism. It is about the bulk disclosure of classified materials. It is about the indiscriminate publication of unredacted names. That is what distinguishes Wikileaks from the Guardian or New York Times. Judge Baraitser had rightly rejected outright that Assange is a journalist or akin to a journalist.

This is not a political prosecution. The US Administration had changed during these proceedings, but the prosecution continues because it is based upon law and evidence, not upon political motivation.

In Superseding Indictment 2 (which sounds like a very bad franchise movie) the hacking charge is added but the accusations in Superseding Indictment 1 are incorporated. What is alleged bears no relation to the Article X ECHR Freedom of Speech cases submitted by the defence. This case is about stolen and hacked documents, about a password hash hacked to allow Wikileaks and Manning to steal from the United States of America, and about the subsequent publication of unredacted names that had placed individuals at immediate risk of physical harm and arbitrary detention.

The indiscriminately published document files were massive. They included over 90,000 on Afghanistan, over 400,000 on Iraq and over 250,000 diplomatic cables. Assange had encouraged and caused Chelsea Manning to download the documents. The Wikileaks website actively solicits hacked material. “The suggestion Miss Manning is a whistleblower is unrealistic. A whistleblower reveals material legally obtained in the course of employment”. Manning however had illegally obtained material.

Assange cracking the password hash “goes far beyond the position of a journalist”. Judge Baraitser was therefore fully entitled to give full weight to that aspect of the case.

The United States had been obliged to go to great lengths to mitigate the danger that arose to its sources after their names were revealed, Many had been resettled, forced to move. The allegation is that the defendant knowingly and deliberately published the names of the informants.

As pointed out by Deputy Attorney General Kronberg, the charges had been approved by a Federal Grand Jury, after very careful independent consideration of the evidence.

Although this prosecution may indeed be unprecedented, it proceeded along long-established principles. There is no immunity of journalists to violate the criminal law. There is now a specific law against the intentional release of the names of intelligence officers and sources, and it has been ruled that this does not breach the First Amendment. The only material for which Assange is being prosecuted under the Espionage Act is that containing names. That is the difference between this and earlier instances which were or were not prosecuted.

Kronberg stated in his affidavit that there is evidence of people having to leave their homes or even their countries as a result of this disclosure. Several had been arrested or interrogated, and some had disappeared.

The material released by Wikileaks had been useful to hostile governments, to terrorist groups and to criminal organisations. Osama Bin Laden and the Taliban had requested and studied some of the disclosed material.

The judges at this stage were looking much more comfortable than they had the day before. They sat back in their chairs visibly relaxed and smiling. Yesterday they had been discomfited by members of their own class saying things about US war crimes to their faces, which they preferred not to hear. Today they were getting a simple recital of Daily Mail clichés and trigger words that reinforce the Establishment worldview. They were back in their milieu, like plump tropical fish in a tank whose heater had failed yesterday but just been replaced.

Dobbin continued that there was no question of any balance of public interest exercise being required. “The material that Assange published unredacted carries no public interest whatsoever. That is at the heart of the case.”

Judge Johnson asked whether Dobbin accepted the evidence given yesterday that others had published the unredacted material first. Dobbin replied that it was Assange who bore the responsibility for the material being available in the first place.

On the question of political extradition, the 2003 Act had transformed extradition law and had deliberately removed the prohibition on extradition for political offences which had been contained in Section 6 of the 1989 Extradition Act (shown here).

By contrast, Section 81 of the 2003 Extradition Act said this:

The phrase “political offence” had obviously been deliberately removed by parliament, said Dobbin.

Judge Johnson asked if there was any material published by government or anything said by ministers in Hansard which explained the omission. Dobbin replied that this was not needed: the excision was clear on the face of Section 81. If a Treaty contains a provision not incorporated in UK Domestic Law, it is not for the court to reinstate it. The political offence exclusion on extradition is not customary international law.

An unincorporated treaty can give rise to an obligation in domestic law, but cannot contradict the terms of a statute. Article 4 of the US/UK Extradition Treaty of 2007 contradicts the terms of Section 81(a) of the Extradition Act of 2003. That Article of the Treaty therefore falls in the United Kingdom, even though enforced in the United States where it does not contradict domestic legislation. Whereas extradition treaties are supposed to be mutual and interpreted the same way by both sides, that does not preclude an extradition by one party in unilateral circumstances.

At this point Judge Johnson was looking at Ms Dobbin with some concern, like a home supporter at a soccer match which his team is unexpectedly losing 3-0, who cannot quite work out why they are performing this badly.

At this point I thought I might introduce a panel so the reader can isolate this vital argument. The question is this. Is this provision of the 2003 Extradition Act at Section 81 (A):

… incompatible with this section of the subsequent US/UK Extradition Treaty of 2007:

… so as to render the latter null and void? That is a fundamental question in this hearing and the assertion made by Dobbin.

If Judge Baraitser’s acceptance of this argument was correct, it of course means that the Home Office lawyers in 2007 drafted a treaty, approved by the FCO lawyers, which neither set of lawyers noticed was incompatible with the legislation the same lawyers had drafted just four years earlier.

It would also mean that the very substantive mechanisms for ensuring the compatibility of treaties with domestic legislation, involving a great round of formal written interdepartmental consultation, all failed too. I have personally worked those mechanisms when in the FCO, and I don’t see how they can fail.

Crucially, Dobbin’s argument depends on the notion that the Extradition Treaty gives a broader definition of what can be a politically motivated extradition, than the Act. So while Assange’s extradition would be barred by the Treaty, it is not by the Act.

But that is obviously nonsense. The entire purpose of the much longer provision in the Treaty is plainly to limit what counts as political under the very broad definition in the Act. It reduces the ground for denying extradition as political; it does not extend it. The fact that even this lengthy list of exclusions does not exclude Wikileaks’ activity is extremely telling.

OK, that’s the end of the panel. Let us return to the hearing.

Dobbin continued that Abuse of Process arguments do not enable the incorporation of unincorporated international treaties. As an example, alleged obligations of the UK under the UN Convention on the Rights of the Child have been found by the courts not to be enforceable in domestic law. It is not accepted by the United States that this is a political offence. But even if it were, Swift and Baraitser are correct in law that there is no bar on extradition for political offences.

The defence had claimed the prosecution purported to be for a criminal offence but in reality was political. This argument must be treated with great caution, because any criminal could argue their offence was politically motivated.

The starting position must be the assumption of good faith on the part of the state with which the UK has treaty relations on extradition. The United States is one of the UK’s longest standing and closest international partners.

The Yahoo article was not fresh evidence. It had been properly considered and rejected by Swift and Baraitser. It was internally inconsistent and included official denials of the conduct alleged. The court must consider the nexus between those making allegations of impropriety and the appellant. Ecuador had rescinded his claim of political asylum and Assange was properly arrested by police invited into the Ecuadorean Embassy. There is simply no evidence that any harm would come to Assange were he to be extradited.

Even accepting the Yahoo article as evidence, that does not affect the objective basis of extradition proceedings. It states that kidnapping was rejected by US government lawyers as it would interfere with criminal proceedings.

It is not journalism to encourage people to break the Official Secrets Act or to steal information. Miss Manning is not a whistleblower but a hacker. Protected speech is therefore not engaged and that entire line of argument falls. Baraitser rightly distinguishes between Wikileaks and the concept of “responsible journalism”. No public interest could attach to the indiscriminate mass release of information.

There are many reasons why the title of whistleblower does not attach to Chelsea Manning. There is no evidence Manning had any specific information she wished to impart or any specific issues she wished to pursue.

Julian Assange did not have to disclose the unredacted material. It was not a necessary part of his publication. The New York Times had published some of the material responsibly and redacted. Assange by contrast arrogated to himself the role of deciding what was in the public interest.

The defence was mistaken in its approach to Article X on Freedom of Speech. The approach in England and Wales is not to consider whether a particular publication is compatible with Article X, but whether a particular criminal charge is compatible with Article X. Plainly the charge was compatible in this case with Article X restrictions on grounds of national security. There was no error in law. In this jurisdiction Assange could also be charged with conspiracy.

Johnson then asked a very careful question. If, in this country, a journalist had information on serious governmental wrongdoing and solicited classified material, and published that material in a serious and careful way, would that not engage Article X?

Dobbin replied that following the decision in the Shayler case, he should have pursued internal avenues.

Johnson pressed that he was not talking of the whistleblower but of the journalist. Would the journalist have Article X protection?

Dobbin replied no, but there would have to be a proportionality test before a prosecution was engaged. (You will recall Dobbin had stated earlier that in this case there was no need for any such balancing test as Manning was not a whistleblower and the material was not in the public interest.)

Dobbin said the USA was at pains to distinguish this unprecedented prosecution from ordinary journalism. This was indiscriminate publication of material. The Rosen case was important because, although in a lower court, it explains why you prosecute Wikileaks and not the New York Times. (This case has come up repeatedly throughout the hearings. Of current interest, it was about AIPAC receiving and using classified information.)

While it was the case that the United States could argue that Julian Assange was not entitled to First Amendment protection due to his nationality, it was not saying it would do that. This was merely noted as an option. This could not therefore be a block to extradition due to discrimination on grounds of nationality under Section 81a.

Johnson interjected that in the affidavit we have the prosecutor clearly saying that he might do this. Dobbin replied that this was “tenuous”. Even if the prosecutor did it, there was no way of telling how it might work out. The judge might reject it.  This argument could fall flat in court. This possibility did not offer sufficient foundation to exclude extradition on the basis of discrimination due to nationality. Further this would be about Convention rights that lie outwith the jurisdiction of this court.

At this point Judge Dame Victoria Sharp was looking at Dobbin with great concern, as Dobbin prattled on with a kind of stream of consciousness of meaningless phrases. Judge Johnson attempted to bring her back to reality. Do we have any evidence, he asked, that a foreign national does indeed have the same First Amendment rights as a US citizen?

Well, yes, replied Dobbin. Or perhaps, no. One of the two. She would find out.

With that, Dobbin sat down with a look of great relief. She had got to the end, and spoken so softly that not many people heard what she had said. So not too much damage done. The judges looked even more relieved that she had finished. Prof Alice Edwards, the redoubtable UN Special Rapporteur on Torture, was in court. I wanted to ask her whether listening to Dobbin for more than 15 minutes could in itself be construed as cruel and unusual punishment, but sadly she was seated too far away.

The next KC for the USA now stood up, a Mr Smith, who had been promoted from Number 3 to Number 2 in the absence of Lewis. Smith, from his manner, had no doubts at all about his client’s case, or at least he had no doubts about his fee, which amounts to the same thing. He also had no problem being heard. They heard him in Chelsea.

He said that he wished to address the mosaic of complaints brought by the applicant under Articles IV and VI of the ECHR, relating to fair trial, the rule of law and abuse of process. In the written submissions, the appellant had referred to the system of plea bargaining as enforcing guilty pleas by threatening disproportionate punishment, thus interfering with fair trial. But this argument had never been accepted in any extradition to the United States. In some matters, such as jury selection, the defendant had better rights than in the UK.

With regard to the system of sentencing enhancement with reference to other alleged offences not charged, this could not be abuse of process or denial of fair trial. It was “specialty or nothing”, specialty being the principle in international law that a person extradited could only be charged with the named offence.

As the appellant had noted, the US trial judge could enhance the sentence on the basis of whether the applicant was guilty of further offences, on a “balance of probability” judgment. But this does not mean the defendant is convicted of those further offences. The conviction is solely for the offence charged, enhanced by other conduct. The specialty argument then falls. This was not dissimilar to the UK, where aggravating or mitigating factors might be taken into account.

This could come nowhere near the threshold of a “flagrant” breach of the rule of law required to bring the ECHR into operation. Article 6 (2) would only be invoked if the procedure involved an additional conviction on a new charge. The appellant had also raised the possibility of sentencing enhancement from the information in classified material that would be shown to the judge but not to the defendant or his lawyers. But there was no evidence before the court that showed this would happen in this case.

We now come, said Smith, to the question of grossly disproportionate sentencing, which the defence first raised in relation to Article III of ECHR and they now relate also to Article X on Freedom of Speech. But it is not the norm to impose UK sentencing standards on foreign states. The test is whether a sentencing decision is “extreme”.

The defence had given the estimate of 175 years, as the maximum sentence for each charge, running consecutively. But the defence’s own expert witnesses had given different estimates, ranging from 30 to 40 years to 70 to 80 months.

In his affidavit the Deputy Attorney General had stated that avoiding disparity was a key factor in sentencing guidelines. Miss Manning had been sentenced to 35 years and was eligible for parole after one third of that sentence under military law. Kronberg had given other possible comparators ranging from 42 months to 63 months.

Assange stood accused of very serious conduct, for which sentence could be upped by significant aggravating factors. In the UK, Simon Finch had his sentence increased to 8 years for leaking a document which had put national security at risk. By comparison Assange’s alleged offence was not just grave but entirely unprecedented.

Assange and others at Wikileaks had recruited Chelsea Manning and other hackers, encouraged them to steal classified information, had published unredacted names thus putting lives in danger and causing relocation. So none of the range of sentences which had been placed before the court would be grossly disproportionate, from 60 months to 40 years.

Article X could only be applied in these circumstances to a flagrant breach of Freedom of Speech rights. That was not the case. This was neither a whistleblower case nor responsible journalism. It does not engage Article X at all.

Judge Johnson asked for a copy of the sentencing remarks of the court martial in the Manning case.

Ben Watson KC now stood up to address the court on behalf of the UK Home Secretary, although on recent form he could not be sure if that would still be the same person when he got back to the office. He stated that the Secretary of State has no role in supervising the extradition treaty, The substantive decision is for the judges.

He said that it was worth noting that the bar on political extradition had been removed from the European Framework Agreement between EU member states. It was a doctrine “on the wane”.

There was no basis for the court to infer that Parliament was not aware of the difference between section 81 of the 2003 Extradition Act and the bar on political extradition at section 6 of the 1989 Act. See for example the contribution of Prof Ross Cranston MP in the debate on the act (Cranston was both an MP and a former High Court judge).

I suspect that Watson threw this out with confidence that nobody actually would see the contribution of Prof Ross Cranston MP in the debate. But then Mr Watson has never met me. I did decide to see the contribution of Prof Ross Cranston MP in the debate, and this is what he had to say on the subject of political extradition, in the debate on 9 December 2002.

Clause 13 refers to extraneous circumstances. We shall not extradite people where they might be pursued for political or religious opinions. That is a good thing. There is, of course, the question of definition. In the Shayler case, the French court refused to extradite Shayler to this country on the ground that it was a political offence, so there can be disagreement about what extraneous circumstances might entail. However, there is a valuable barrier that will operate in our domestic law.

That rather conveys the opposite sense to what Watson claimed Professor Cranston was saying. Cranston says political offences will still be banned, and it will be for the courts to define them. That is plainly not the same as saying the Act is removing the bar on extradition for political offences.

Judge Johnson now asked Watson a question. The treaty bars extradition for a political offence. So does this mean that if the US receives a request for extradition for a political offence from the UK, it can refuse it, but if the UK receives an extradition request for an identical political offence from the US, it cannot refuse it, and the Secretary of State cannot block it even if they consider it contrary to Article IV?

Watson replied yes, that is the position. He seemed to find nothing troubling in that at all. Judge Johnson, however, seemed to find it a strange proposition.

Watson moved on to the death penalty. Chelsea Manning had not received the death penalty. There was nothing to suggest the applicant faced the serious threat of the death penalty. The fact that the United States had said that Assange could serve his sentence in Australia could be taken as an assurance against the death penalty. So there was no need for the Secretary of State to seek assurances. The United States had suggested Assange faced a maximum penalty of 30 to 40 years.

Judge Johnson then intervened again, and asked if there were anything to prevent the United States from adding offences of aiding and abetting treason or other counts of espionage which do attract the death penalty? Watson replied there was nothing to stop them, but that would be contrary to the assurance received on serving sentence in Australia. There must be a threshold of possibility of the death penalty before the Secretary of State was obliged to seek assurances against it.

Edward Fitzgerald then rose for rebuttal. He was in much more commanding form today, on the attack, scornful of the arguments he was dismissing with a broad sweep of rhetoric.

Edward Fitzgerald KC

The United States had failed to address the point of arbitrariness. Of course it was arbitrary to lock somebody up under an extradition treaty, while deliberately ignoring a major provision of that very treaty that specifically says they should not be locked up. Even if we did ignore this vital provision in the treaty, Assange was still being punished for his political opinions contrary to Section 81 of the Extradition Act.

It had been suggested that the removal of the phrase “political offence” from the 2003 Act was an “express omission”. But there was no evidence produced of that. “You are saying that silence provides by inference the provision of the Act, that disapplies a provision that plainly is actually in the subsequent Treaty”.

It is ludicrous to say the bar on political extradition is out of date. It is not out of date. The UK continues to sign extradition treaties containing this exact same provision. It is in all but 2 of the UK’s over 150 extradition treaties. It is in all US extradition treaties. It is in many major international instruments. Plainly this is abuse of process. As stated plainly by Bingham and Harper “it is abuse to disentitle someone to the protection of the treaty”.

The United States had come nowhere near to meeting the point on the discrimination by nationality, if Mr Assange were not given First Amendment protection because he is not a US citizen. For the US prosecutor to say we may or may not apply this discrimination was no answer, any more than if they said they reserved the right to torture somebody but may not do it.

On enhanced sentencing, this point also had not been met. There was a clear danger Assange would be sentenced for offences with which he was not charged.

Judge Sharp asked Fitzgerald if this point could not block every extradition to the USA. Fitzgerald said no, it should be judged on a case by case basis on the likelihood of this occurring. In this case the court had evidence that the prosecution had not been motivated by the offences charged, but by other alleged conduct. Judge Sharp asked if he meant the CIA Vault 7 leaks. Fitzgerald confirmed that he did.

Mark Summers KC then stood to continue the rebuttal. It was remarkable, he declared in a tone of barely suppressed rage, that counsel for the USA had spoken for hours and never once acknowledged the massive evidence of criminal state-level behaviour by the United States revealed in the leaked material. They never mentioned or acknowledged the war crimes revealed. There had never been any challenge in the court to the witnesses who testified for days that the material exposed state-level crimes.

Mark Summers KC

Summers said that a key United States argument seemed to turn on the notion that what constituted a political act and political persecution under section 81, and the standards of evidence required in judging them, were different in an extradition hearing than applied in consideration of political asylum cases. This was wrong, They were the same. The protected categories in Article 33 of the Refugee Convention of 1954

on account of his race, religion, nationality, membership of a particular social group or political opinion.

… were in practice identical to the protected categories of the 2003 Extradition Act Section 81:

on account of his race, religion, nationality, gender, sexual orientation or political opinions

There was a reason for this. The protection to be given under the Extradition Act and under the Refugee Convention is identical, and for identical reasons, and to be judged by the same standards.

When you prosecute for the act of publishing evidence of war crimes, the nexus that made this political persecution was entirely plain. Publication of information which exposes a state’s crime is protected speech. The state you exposed cannot prosecute you for that.

We had heard much about Deputy Attorney General Kronberg, but he was not the initiator. This was all ordered from way above his head. The prosecution had been decided at the very top. You cannot discuss the sheep and ignore the shepherd. The prosecution had noted that Trump had praised Wikileaks a couple of times as though that ruled out the possibility that agencies in the United States were plotting to kill Assange. That plainly did not follow.

We had clear evidence both from the Yahoo News article and from Protected Witness 2 that there were plans laid by US authorities to murder, kidnap or poison Assange. What does that tell us about the intentions of the US government, as opposed to the bland claims of Mr Kronberg?

The point of foreseeability had not been countered. There was no effort made to counter it. In 2010 it could not have been foreseen that publication would bring espionage charges against the publisher. It had never happened before. Encouraging a whistleblower to produce documents was definitely not unprecedented. That was an absurd claim. It was everyday journalistic activity, as witnesses had testified. No witnesses had been produced to say the opposite.

Of course it was illegal for journalists to commit criminal acts to obtain material. That had not happened here. But even in that case, it does not render the act of publication illegal.

The release of unredacted names was by no means unprecedented. Daniel Ellsberg had testified in these very hearings that the Pentagon Papers he released contained hundreds of unredacted names of sources and officers. The Philip Agee case also released unredacted names of sources and officers. Neither had resulted in an Espionage Act prosecution, or any prosecution aimed at a journalist or publisher.

The information released revealed war crimes. Article X is therefore unavoidably engaged by protected speech. The Shayler case was being misapplied by the prosecution. That judgment specifically excluded the press from liability for publication. It was about the position of the whistleblower. Assange is not the whistleblower here, Manning is. Assange is the publisher. There is no suggestion whatsoever, in any of the Strasbourg authorities, that the press are to be regarded the same way as the whistleblower. What Strasbourg does dictate is that there must be an Article X balancing exercise with the public interest in the disclosures. No such exercise was undertaken by Baraitser.

The prosecution refused to acknowledge the fact, backed up by extensive and unchallenged witness evidence, that Assange had undertaken a whole year of a major redaction exercise to avoid publication of names which might be put at risk. This year was followed by one of the media partners publishing the password to the unredacted material as the chapter heading in a book. Then Mr Assange made desperate efforts to mitigate the damage, including by phoning the White House. This did not accord at all with the prosecution narrative: “At best, Mr Assange was reckless in providing the key to Mr Leigh”.

Several others had then published the full, unredacted database first, including Cryptome. None had been prosecuted, yet more evidence that this prosecution was unforeseeable.

There was, however, no evidence given of harm to any individual from the disclosures. What had been created was a risk. You had to set against that risk the proposed sentence of 30 to 40 years in jail suggested by the prosecution. The guidelines say “rest of life”. Chelsea Manning was given 35 years. Evidence had been given that 30 years was a “floor not a ceiling”. A sentence like this for publication “shocks the conscience of every journalist around the world”.

For what? For revealing state-level crime including torture, rendition, waterboarding, drone strikes, murder, assassination, strappado. Strasbourg regards revelation of these state-level crimes as extremely important. The court has ruled revelations of such abuses as clearly covered by Article X. Leaks had the capacity to stop such abuses, and in some cases actually had. The exposure of major international criminal wrongdoing outweighs the risk created by revealing the names of some of those involved in it.

Dame Victoria interjected that some of the names were of people not involved in criminal wrongdoing. Summers accepted this but said “it is just not tenable to argue, as the prosecution does, that there is no public interest whatsoever in the publications”.

Turning to the issue of capital punishment, the Home Office contended that there was “no real risk”. But it was admitted that Assange could be charged with a capital offence. This exercise is not a risk assessment. The law says that in circumstances where the death penalty might be imposed, there must be an assurance sought against it. “We don’t understand why there is no routine assurance against the death penalty provided in this case. If there is no risk, then surely there is no difficulty in providing the assurance”.

Then, all of a sudden, the hearing was over. The judges stood and left through the door behind them. Five minutes later they were back and reserved their judgment, asking for various written materials to be provided, with a last deadline of March 4. Then they left and it was over.

I am conscious that this account flows less well and reads much more bittily than the account of day one. That is simply how it was. On the first day, Assange’s legal team set out a planned and detailed exposition of the case. On the second, the USA and Home Office responded, and did so in rather disjointed fashion, essentially just reiterating the accusations. There was little legal argument as to why Baraitser and Swift had been right to accept them. The rebuttal was thereafter a series of quickfire returns on individual points.

It was impossible not to note that the judges were distinctly unimpressed by some elements of the prosecution. The possibility of discrimination by nationality over applying the First Amendment appears to be an argument to which the judges were searching in vain for an adequate answer. They were also plainly dissatisfied with the lack of an assurance on the death penalty.

But the British security state is never going to accept that the publication of state secrets is justified where it reveals state crimes, and the judges were desperate to hang on to the ruse of avoiding that question by saying this is only about the publication of names of innocent sources. They are also never going to entertain the wider criticisms of the US system such as sentence enhancement.

So my prediction is that a further appeal will be allowed, but only on the narrow grounds of discrimination by nationality and the death penalty. If their hand is thus forced, the Americans will produce an assurance against the latter and the appeal will be on discrimination by nationality.

That appeal will be scheduled for the Autumn, and its result dragged out until after the US election to avoid embarrassment to Biden. That is my best guess of what happens next. Of course all the time the Establishment has achieved its objective by keeping Julian in a maximum security jail for longer.

The point in the whole proceedings which struck me most strongly, was that in the initial hearings the US was keen to downplay the possible sentence, continually emphasising 6 to 7 years as likely. Now an earlier decision has removed considerations of US prison conditions and Julian’s health from the case, they have radically changed tack and were emphasising repeatedly 30 to 40 years as the norm, which is in effect a rest-of-life sentence. That shift, together with the refusal so far to rule out the death penalty, gives a measure of the ruthlessness with which the CIA is pursuing this case.

My apologies for the delay in producing this report. I caught quite a serious chest infection, I think from the cold and wet in London those days, and was really very ill.


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Assange Final Appeal – Your Man in the Public Gallery 209

Reporting on Julian Assange’s extradition hearings has become a vocation that has now stretched over five years. From the very first hearing, when Justice Snow called Assange “a narcissist” before Julian had said anything whatsoever other than to confirm his name, to the last, when Judge Swift had simply in 2.5 pages of glib double-spaced A4 dismissed a tightly worded 152-page appeal from some of the best lawyers on earth, it has been a travesty and charade marked by undisguised institutional hostility.

We were now on last orders in the last chance saloon, as we waited outside the Royal Courts of Justice for the appeal for a right of final appeal.

The architecture of the Royal Courts of Justice was the great last gasp of the Gothic revival; having exhausted the exuberance that gave us the beauty of St Pancras Station and the Palace of Westminster, the movement played out its dreary last efforts at whimsy in shades of grey and brown, valuing scale over proportion and mistaking massive for medieval. As intended, the buildings are a manifestation of the power of the state; as not intended, they are also an indication of the stupidity of large scale power.

Court number 5 had been allocated for this hearing. It is one of the smallest courts in the building. Its largest dimension is its height. It is very high, and lit by heavy mock medieval chandeliers hung by long cast iron chains from a ceiling so high you can’t really see it. You expect Robin Hood to suddenly leap from the gallery and swing across on the chandelier above you. The room is very gloomy; the murky dusk hovers menacingly above the lights like a miasma of despair; below them you peer through the weak light to make out the participants.

A huge tiered walnut dais occupies half the room, with the judges seated at its apex, their clerks at the next level down, and lower lateral wings reaching out, at one side housing journalists and at the other a huge dock for the prisoner or prisoners, with a massy iron cage that looks left over from a production of The Hunchback of Notre Dame.

This is in fact the most modern part of the construction; caging defendants in medieval style is a Blair era introduction to the so-called process of law.

Rather incongruously, the clerks’ tier was replete with computer hardware, with one of the two clerks operating behind three different computer monitors and various bulky desktop computers, with heavy cables twisting in all directions like sea kraits making love. The computer system seems to bring the court into the 1980’s, and the clerk behind it looked uncannily like a member of a synthesiser group of that era, right down to the upwards pointing haircut.

In period keeping, this computer feed to an overflow room did not really work, which led to a number of halts in proceedings.

All the walls are lined with high bookcases, housing thousands of leather bound volumes of old cases. The stone floor peeks out for one yard between the judicial dais and the storied wooden pews, with six tiers of increasingly narrow seating. The barristers occupied the first tier and their instructing solicitors the second, with their respective clients on the third. Up to ten people per line could squeeze in, with no barriers on the bench between opposing parties, so the Assange family was squashed up against the CIA, State Department and UK Home Office representatives.

That left three tiers for media and public, about thirty people. There was however a wooden gallery above which housed perhaps twenty more. With little fuss and with genuine helpfulness and politeness, the court staff – who from the Clerk of Court down were magnificent – had sorted out the hundreds of those trying to get in, and we had the UN Special Rapporteur on Torture, we had 16 Members of the European Parliament, we had MPs from several states, we had NGOs including Reporter Without Borders, we had the Haldane Society of Socialist Lawyers, and we had, (checks notes) me, all inside the Court.

I should say this was achieved despite the extreme of official unhelpfulness from the Ministry of Justice, who had refused official admission and recognition to all of the above, including the United Nations. It was pulled together on the day by the police, court staff and the magnificent Assange volunteers led by Jamie. I should also acknowledge Jim, who with others spared me the queue all night in the street which I had undertaken at the International Court of Justice, by volunteering to do it for me.

This sketch captures the tiny non-judicial portion of the court brilliantly. Paranoid and irrational regulations prevent publication of photos or screenshots.

The acoustics of the court are simply terrible. We are all behind the barristers as they stood addressing the judges, and their voices were at the same time muffled yet echoing from the bare stone walls.

I did not enter with a great deal of hope. As I have explained in How the Establishment Functions, judges do not have to be told what decision is expected by the Establishment. They inhabit the same social milieu as ministers, belong to the same institutions, attend the same schools, go to the same functions.

The United States’ appeal against the original blocking of Assange’s extradition was granted by a Lord Chief Justice who is the former room-mate, and still best friend, of the minister who organised the removal of Julian from the Ecuadorean Embassy.

The blocking of Assange’s appeal was done by Judge Swift, a judge who used to represent the security services, and said they were his favourite clients. In the subsequent Graham Phillips case, where Mr Phillips was suing the Foreign Commonwealth and Development Office (FCDO) for sanctions being imposed upon him without any legal case made against him, Swift actually met FCDO officials – one of the parties to the case – and discussed matters relating to it privately with them before giving judgment. He did not tell the defence he had done this. They found out, and Swift was forced to recuse himself.

Personally I am surprised Swift is not in jail, let alone still a High Court judge. But then what do I know of justice?

The Establishment politico-legal nexus was on even more flagrant display today. Presiding was Dame Victoria Sharp, whose brother Richard had arranged an £800,000 loan for then Prime Minister Boris Johnson and immediately been appointed Chairman of the BBC, (the UK’s state propaganda organ). Assisting her was Justice Jeremy Johnson, another former barrister representing MI6.

By an amazing coincidence, Justice Johnson had been brought in seamlessly to replace his fellow ex-MI6 hiree Justice Swift, and find for the FCDO in the Graham Phillips case!

And here these two were now to judge Julian!

What a lovely, cosy club is the Establishment! How ordered and predictable! We must bow down in awe at its majesty and near divine operation. Or go to jail.

Well, Julian is in jail, and we stood ready for his final shot for an appeal. We all stood up and Dame Victoria took her place. In the murky permanent twilight of the courtroom, her face was illuminated from below by the comparatively bright light of a computer monitor. It gave her a grey, spectral appearance, and the texture and colour of her hair merged into the judicial wig seamlessly. She seems to hover over us as a disturbingly ethereal presence.

Her colleague, Justice Johnson, for some reason was positioned as far to her right as physically possible. When they wished to confer he had to get up and walk. The lighting arrangements did not appear to cater for his presence at all, and at times he merged into the wall behind him.

Dame Victoria opened by stating that the court had given Julian permission to attend in person or to follow on video, but he was too unwell to do either. After that disturbing news, Edward Fitzgerald KC rose to open the case for the defence to be allowed an appeal.

There is a crumpled magnificence about Mr Fitzgerald. He speaks with great authority and a moral certainty that compels belief. At the same time he appears so large and well-meaning, so absent of vanity or pretence, that it is like watching Paddington Bear in a legal gown. He is a walking caricature of Edward Fitzgerald.

Barristers’ wigs have tight rolls of horsehair stuck to a mesh that stretches over the head. In Mr Fitzgerald’s case, the mesh has to be stretched so far to cover his enormous brain, that the rolls are pulled apart, and dot his head like hair curlers on a landlady.

Fitzgerald opened with a brief headline summary of what the defence would argue, in identifying legal errors by Judge Swift and Magistrate Baraitser, that meant an appeal was viable and should be heard.

Firstly, extradition for a political offence was explicitly excluded under the UK/US Extradition Treaty which was the basis for the proposed extradition. The charge of espionage was a pure political offence, recognised as such by all legal authorities, and Wikileaks’ publications had been to a political end, and even resulted in political change, so were protected speech.

Baraitser and Swift were wrong to argue that the Extradition Treaty was not incorporated in UK domestic law and therefore “not justiciable”, because extradition against its terms engaged Article V of the European Convention (on Human Rights on Abuse of Process) and Article X (on Freedom of Speech).

The Wikileaks revelations had revealed serious state illegality by the government of the United States, up to and including war crimes. It was therefore protected speech.

Article III and Article VII of the ECHR were also engaged because in 2010 Assange could not possibly have predicted a prosecution under the Espionage Act, as this had never been done before despite a long history in the USA of reporters publishing classified information in national security journalism. The “offence” was therefore unforeseeable. Assange was being “Prosecuted for engaging in the normal journalistic practice of obtaining and publishing classified information”.

The possible punishment in the United States was entirely disproportionate, with a total possible jail sentence of 175 years for those “offences” charged so far.

Assange faced discrimination on grounds of nationality, which would make extradition unlawful. US authorities had declared he would not be entitled to First Amendment protection in the United States because he is not a US citizen.

There was no guarantee further charges would not be brought more serious than those which had already been laid, in particular with regard to the Vault 7 publication of CIA secret technological spying techniques. In this regard, the United States had not provided assurances the death penalty could not be invoked.

The CIA had made plans to kidnap, drug and even to kill Mr Assange. This had been made plain by the testimony of Protected Witness 2 and confirmed by the extensive Yahoo News publication. Therefore Assange would be delivered to authorities who could not be trusted not to take extrajudicial action against him.

Finally, the Home Secretary had failed to take into account all these due factors in approving the extradition.

Fitzgerald then moved into the unfolding of each of these arguments, opening with the fact that the US/UK Extradition Treaty specifically excludes extradition for political offences, at Article IV.

Fitzgerald said that espionage was the “quintessential” political offence, acknowledged as such in every textbook and precedent. The court did have jurisdiction over this point because ignoring the provisions of the treaty rendered the court liable to accusations of abuse of process.

He noted that neither Swift nor Baraitser had made any judgment on whether or not the offences charged were political, relying on the argument the treaty did not apply anyway.

But the entire extradition depended on the treaty. It was made under the treaty. “You cannot rely on the treaty, and then refute it”.

This point brought the first overt reaction from the judges, as they looked at each other to wordlessly communicate what they had made of it. It was a point of which they had felt the force.

Fitzgerald continued that when the 2003 Extradition Act, on which the Treaty depended, had been presented to Parliament, ministers had assured parliament that people would not be extradited for political offences. Baraitser and Swift had said that the 2003 Act had deliberately not had a clause forbidding extradition for political offences. Fitzgerald said you could not draw that inference from an absence. There was nothing in the text permitting extradition for political offences. It was silent on the point.

Nothing in the Act precluded the court from determining that an extradition contrary to the terms of the treaty under which the extradition was taking place, would be a breach of process. In the United States, there had been cases where extradition to the UK under the treaty had been prevented by the courts because of the ‘no political extradition’ clause. That must apply at both ends.

Of the UK’s 158 extradition treaties, 156 contained a ban on extradition for political offences. This was plainly systematic and entrenched policy. It could not be meaningless in all these treaties. Furthermore this was the opposite of a novel argument. There were a great many authoritative cases, stretching back centuries, in the UK, US, Ireland, Canada, Australia and many other countries in which “no political extradition” was firmly established jurisprudence. It could not suddenly be “not justiciable”.

It was not only justiciable, it had been very extensively adjudicated.

All of the offences charged were as “espionage” except for one. That “hacking” charge, of helping Chelsea Manning in receiving classified documents, even if it were true, was plainly a similar allegation of a form of espionage activity.

The indictment describes Wikileaks as a “non-state hostile intelligence agency”. That was plainly an accusation of espionage. This is self-evidently a politically motivated prosecution for a political offence.

Julian Assange is a person in political conflict with the view of the United States, who seeks to affect the policies and operations of the US government.

Section 87 of the Extradition Act 2003 provides that a court must interpret it in the light of the defendant’s human rights as enshrined in the European Convention of Human Rights. This definitely brings in the jurisdiction of the court. It means all the issues raised must be viewed through the prism of the ECHR and from no other angle.

To depend on the treaty yet ignore its terms is abuse of process and contrary to the ECHR. The obligation in UK law to respect the terms of the extradition treaty with the USA while administering an extradition under it, was comparable to the obligation courts had found to follow the Modern Slavery Convention and Refugee Convention.

Mark Summers KC then arose to continue the case for Assange. A dark and pugnacious character, he could be well cast as Heathcliff. Summers is as blunt and direct as Fitzgerald is courteous. His points are not so much hammered home, as piledriven.

This prosecution, Summers began, was “intended to prohibit and punish the exposure of state level crime”. The extradition hearing had heard unchallenged evidence of this from many witnesses. The speech in question was thus protected speech. This extradition was not only contrary to the US/UK Extradition Treaty of 2007, it was also plainly contrary to Section 81 of the Extradition Act of 2003.

This prosecution was motivated by a desire to punish and suppress political opinion, contrary to the Act. It could be shown plainly to be a political prosecution. It had not been brought until years after the proposed offence; the initiation of the charges had been motivated by the International Criminal Court stating that they were using the Wikileaks publications as evidence of war crimes. That had been immediately followed by US government denunciation of Wikileaks and Assange, by the designation as a non-state hostile intelligence agency, and even by the official plot to kidnap, poison, rendition or assassinate Assange. That had all been sanctioned by President Trump.

This prosecution therefore plainly bore all of the hallmarks of political persecution.

The magistrates’ court had heard unchallenged evidence that the Wikileaks material from Chelsea Manning contained evidence of assassination, rendition, torture, dark prisons and drone killings by the United States. The leaked material had in fact been relied on with success in legal actions in many foreign courts and in Strasbourg itself.

The disclosures were political because the avowed intention was to effect political change. Indeed they had caused political change, for example in the Rules of Engagement for forces in Iraq and Afghanistan and in ending drone killings in Pakistan. Assange had been highly politically acclaimed at the time of the publications. He had been invited to address both the EU and the UN.

The US government had made no response to any of the extensive evidence of United States state level criminality given in the hearing. Yet Judge Baraitser had totally ignored all of it in her ruling. She had not referred to United States criminality at all.

At this point Judge Sharp interrupted to ask where they would find references to these acts of criminality in the evidence, and Summers gave some very terse pointers, through clenched teeth.

Summers continued that in law it is axiomatic that the exposure of state level criminality is a political act. This was protected speech. There were an enormous number of cases across many jurisdictions which indicate this. The criminality presented in this appeal was tolerated and even approved by the very highest levels of the United States government. Publication of this evidence by Mr Assange, absent any financial motive for him to do so, was the very definition of a political act. He was involved, beyond dispute, in opposition to the machinery of government of the United States.

This extradition had to be barred under Section 81 of the Extradition Act because its entire purpose was to silence those political opinions. Again, there were numerous cases on record of how courts should deal, under the European Convention, with states reacting to people who had revealed official criminality.

In the judgment being appealed Judge Baraitser did not address the protected nature of speech exposing state criminality at all. That was plainly an error in law.

Baraitser had also been in error of fact in stating that it was “Purely conjecture and speculation” that the revelation of US war crimes had led to this prosecution. This ignored almost all of the evidence before the court.

The court had been given evidence of United States interference with judicial procedure over US war crimes in Spain, Poland, Germany and Italy. The United States had insulated its own officials from ICC jurisdiction. It had actively threatened both the institutions and employees, of the ICC and of official bodies of other states. All of this had been explained in detail in expert evidence and had been unchallenged. All of it had been ignored by Baraitser.

Following the publication of the Manning material, there had been six years of non-prosecution of Assange. Why was there then a prosecution after six years? What had changed?

Following the declaration by the International Criminal Court that it would use Wikileaks material to investigate US government officials for war crimes, US officials described Assange as “a political actor”. This period saw the origin of the phrase “non-state hostile intelligence agency”. Assange had been accused of “working with Russia” and “trying to take down the USA”.

Baraitser had acknowledged in her judgment the hostility from the CIA but stated that “the CIA does not speak on behalf of the US administration”.

It was important to note that it was after the Baraitser judgment that Yahoo News had published its investigation into the US government plot against Assange.

The court had heard of CIA action against Assange from Protected Witness No.2, but that had only gone to unlawful surveillance at the Ecuadorean Embassy and elsewhere. He did not know of the kidnap and kill plot. This was very real, and it was chilling. Indeed, the prosecution and extradition request was only initiated in order to provide a framework for the rendition attempt.

Political persecution was also apparent in the highly selective prosecution of the appellant. Numerous newspapers had also published the exact same information, as had other websites. Yet only Assange was being prosecuted. Baraitser had simply ignored numerous facts which were key to the case, and therefore her judgment was plainly wrong.

The European Court of Human Rights had ruled that, under Article 7 of the Convention, a prosecution must be foreseeable, for the act committed to be criminal. This prosecution failed the foreseeability test because no journalist had ever before been prosecuted under the US Espionage Act. Baraitser was obliged to rule on this but instead had simply said it would be a matter for the US court.

Publication of leaks was routine. National security journalism is a thing. It was a well established aspect of the profession in the USA. Encouraging those in possession of classified material to reveal it, is routine journalistic practice. Whistleblowers themselves had been frequently prosecuted. But no publisher or journalist had ever been prosecuted for obtaining or publishing classified state material.

Baraitser had heard much unchallenged evidence on this point. A prosecution which has never happened before is not foreseeable.

At this point, Judge Johnson intervened to ask whether the publication of so many unredacted names of informants had not also been unprecedented, and if this may have been expected to trigger an unprecedented response?

Summers replied there had indeed been other examples of publication of names.

At this point, the court broke up for lunch.

It had been a strong start to the case by the defence. The judges had appeared to pay increasing attention as the case went on, and at times seemed surprised by some of the assertions made. The first substantive question from the judges, coming just on the lunch break, was however plainly intended to be hostile to Assange.

We left the courtroom and headed for the canteen. This has no frills and a very limited menu, designed to shove the food out quick. I was with John Shipton and German MP Sevim Dagdelen, who kindly paid for lunch, thus immediately distinguishing herself from all the British MPs I have known.

I asked for a baked potato with cheese, but it turned out that baked beans and cheese were not a choice but a pre-mix, and the potato came covered in this bright orange mess. I accidentally got some on my thumb, which despite the passage of 48 hours and frequent washing, remains the colour of Donald Trump’s face.

After lunch, Mark Summers was able to return to the question raised about the release of names of agents and informants.

He said there were many examples in the past of such names being published, including en masse, and it had never resulted in the Espionage Act or any other charges being brought against a publisher. In the case of Philip Agee, the publication of names had led to revocation of the article but no prosecution of the publisher. Daniel Ellsberg had in fact given evidence in this very case that publication of the Pentagon Papers had revealed numerous names, for which there had been no prosecution of the New York Times.

He suggested it was also worth noting there is currently no prosecution of Cryptome, which published the unredacted Manning material before Wikileaks, and still carries it. There has, since these events, been a law passed in the United States specifically outlawing the publishing of the names of secret service officers and sources, but this legislation is specifically limited to officers of the state only and specifically does not include publishers or journalists.

This prosecution therefore remains unprecedented and unforeseeable. No American case has ever sought to prosecute publishers who publish state secrets. The governing principle remained as famously defined by Justice Stewart “The autonomous press may publish what it knows and seek to learn what it can”.

Against this great raft of practice and jurisprudence, continued Summers, all the US government had managed to produce was a court of first instance case named Rosen, in which the court had “entertained the possibility” that the receipt and passing of classified information, not by the whistleblower, might be an offence. But that case was about corporate lobbyists and not about journalism or publishing, it had anyway never concluded and it was from a court with a comparative authority to Truro Magistrates Court.

That was literally the only argument the US government had to offer. Yet Baraitser had found in their favour.

Judge Johnson now interrupted to ask how this related to the theft of information aspect of the charges against Assange, and assisting Manning to crack a hashtag? Taken at its highest, was this not conspiracy to get hold illegally of state material?

Summers responded that it was standard journalistic practice to encourage and assist whistleblowers to obtain material for the press. There were a very large number of such instances, but in 2010 there had never been a prosecution. The US government had asserted two examples of such prosecutions, but there were from 2012 and 2016, and they were not relevant to whether such a prosecution could have been foreseeable to Julian Assange in 2010.

At this point Summers appeared very exasperated indeed. He addressed the judges as though he were a leading astrophysicist who, for some reason, found himself teaching elementary mathematics to an unruly remedial class at a young offenders’ institution. His jaw was set and his hands clenched and unclenched. I would not have bet any significant sum against his next words being “listen, you bloody fool”. Every now and then there was a menacing pause while he lent forward and rested his weight on fists bearing down on the desk in front of him, which seemed to help control his anger.

Gathering himself, he continued:

It was the duty of Judge Baraitser to ensure that the extradition did not breach the ECHR Article VII on the rule of law. If the prosecution were unforeseeable – as it was – that was a breach. Baraitser’s ruling left the decision on this point to be decided by the court in the United states. But she could not abdicate responsibility in this way. She had an explicit duty to offer ECHR protection and consider the point herself. By not doing this, she had erred in law. The Court cannot be absolved of its duty to deal with Convention rights.

Summers continued: the Court had a duty to consider the case the way that Strasbourg would judge the case, applying “European values”. Justice Johnson asked whether that applied to all the charges of the indictment. Summers answered simply “all of them”. Dame Victoria then asked whether it made a difference whether Ms Manning had come across the information in the ordinary course of her employment, or had actively sought it out.

Summers replied that what the court at Strasbourg would say on this is that there was a “proportionality balance”.

Manning had revealed massive state level criminality going to the very heart and purpose of the organisation for which she worked. Of course she was entitled actively to look for evidence of it. Manning’s exposures were conscience driven and from no other motive. There was plainly enormous public interest in the publication.

On the question of public interest the Strasbourg jurisprudence differs radically from English domestic legislation on official secrets, but in considering Convention rights the court is obliged to look at it through the Strasbourg lens.

The question was this: “Is the public interest in the disclosure sufficient to outweigh the duty of confidentiality of the employee?”

Strasbourg judgments made plain it was not enough just to say “national security”. The actions of governments, especially when it came to state crime, must be subject to scrutiny by the public.

Justice Johnson then intervened to ask how this related to the harm caused to human sources whose names were revealed in the publication?

Summers again controlled himself, and then said there had been no evidence presented, at these hearings or at the trial of Chelsea Manning, that any harm had actually occurred to any named individual. There was no allegation, in all the United States case, that any individual had actually come to harm. The allegation was they were put at risk.

What had been exposed was state-level crime on a massive scale, including very grave war crimes. Set against that was a potential risk to individuals involved in those crimes. In considering the balance, Strasbourg would consider that they themselves as a court had made use of the Manning material in several very important legal cases. The International Criminal Court has similarly used the material.

Manning was a whistleblower and her material was of enormous, the greatest, public interest. That would weigh very heavily in the balance of proportionality, compared to the disproportionate American sentencing for disclosure.

More fundamentally, Manning was a whistleblower who had revealed state level serious criminality. The publications were therefore protected speech and Strasbourg would rule there should be no prosecution at all. And the answer to Dame Victoria’s question, Summer concluded, is this:

“If the speech is protected, then helping it cannot be criminal”.

Assange’s intention was political and the effects were political. These had included an end to drone killing in Pakistan, changes to the Rules of Engagement for US forces in Afghanistan and even arguably they had helped bring an end to the war in Iraq. There was no doubt the public interest in this eclipses all the other arguments.

While, unlike Manning, Assange had been under no duty of secrecy to the US government of any kind.

Dame Victoria interrupted to say that Judge Baraitser had dealt with all of these arguments at para 110 of her judgment.

Summers looked at her pityingly. “No, she doesn’t,” he said “she just looks at the Official Secrets Act plus Shayler. Nowhere does she ever acknowledge the public interest in the disclosures. She just recognises everything in the other side of the balance. She does not do the required balancing exercise at all. She never understands the test she has to apply and to judge public interest on the facts of the case.”

Plainly in the lunch period the judges had returned to their corner stools, where they had been given smelling salts, splashed with water and instructed to come out swinging. Judge Johnson asked with extra sarcasm: “So, revealing the identities of informants. How do you balance that?”

Dame Victoria said that Judge Baraitser had noted that this was a matter of “indiscriminate disclosure” that had been condemned by the New York Times, the Guardian and Mr Assange’s other media partners.

Summers replied that the risk to those people named simply formed a part of the balancing exercise which Judge Baraitser had failed to carry out. It had to be set against the value of disclosing ongoing war crimes. And you are talking about a potential risk to US informants who might come to harm, against actual war crimes which really had happened. Thousands of people who had been assassinated, tortured, renditioned etc.

Baraitser’s failure to carry out the balancing exercise on public interest and the rule of law under Article 7 of the Convention was blatant, but even more so was that she had failed to engage at all with Article X – Freedom of Speech. She had stated that whether Assange was entitled to First Amendment protection in the United States was for the American judge to decide, but had ignored her own duty to consider the same freedom of speech arguments under Article X of the Convention.

There was established Strasbourg jurisprudence that showed that news gathering activity was as much a part of the act of protected speech as the publication of the information. The allegation in the indictment ftom the USA that Assange helped Manning with hashtag hacking could bear two interpretations. It was either news gathering, or providing the source with protection. Both were legitimate.

The court had also to consider the enormity of the sentence Assange could face. This was so disproportionate, at up to 175 years as currently charged, that it should itself fall foul of Article III of ECHR. There was also the question of the sheer chilling effect of this kind of prosecution and sentence, on other journalists and publishers. That too had to be considered in the balance of public interest.

Summers now finished and sat down. We looked around, and were rather relieved to find that it appeared that he had got through his performance without any actual physical harm coming to anybody.

But Summers very definitely had an effect. The attitude and the body language of the judges had changed. It was perfectly plain that he had presented them with facts about the case that they had never heard before, and arguments that they found cogent. Their interchange of glances with each other became more frequent, and at times Johnson had walked over to confer. They looked things up and moved papers and furrowed brows. It was obvious they had a great deal of respect for Summers, even though, if it were mutual, he hid that fact very well.

Edward Fitzgerald stood up again and the whole court relaxed. Everybody’s shoulders lowered an inch. Both judges looked at him fondly, as at a beloved uncle getting to his feet after an excellent Christmas lunch, who is now going to do conjuring tricks for the family, which everyone knows will go hilariously wrong in the middle but be spectacularly successful in the end.

For some reason, Fitzgerald was carrying the desktop lectern in the crook of his elbow as he started to address the judges, gradually sorting out this and his boxes of papers as he went along. He said that the extradition must be blocked because Assange faced discrimination on grounds of nationality. In his affidavit for the prosecution, Deputy Attorney General Kronberg stated that it may be held that Assange was not entitled to First Amendment rights and protections for free speech, as he was a foreign national. This had also been stated by Mike Pompeo, a senior administration official.

Judge Baraitser had said that the USAID case on this point was not relevant as it only applied to companies outside the United States. But the very affidavit setting out the indictment stated that the US might apply this to Assange, and so had Pompeo. So Baraitser was plainly wrong.

Dame Victoria interjected that Judge Baraitser had also said that the US government position is that this case is not really a First Amendment case at all. Fitzgerald replied that it most certainly is at least arguably a First Amendment case on freedom of speech; that the defence wished to argue the First Amendment. The prosecution themselves said there was at the least an option to deny this defence to Julian Assange on discriminatory grounds of nationality.

If the defendant’s preferred defence were blocked on the grounds of nationality, that was enough to deny the extradition. The notion of an unfair process was not dependent on its result.

The point had been extensively raised and the United States had given no assurances that they would not treat Assange in this discriminatory way.

This was another point where the judges looked at each other, clearly perplexed. This case was not as simple to dismiss as they had expected.

Fitzgerald then said that, contrary to Articles VI and VII of ECHR, it was possible in the USA to be sentenced for conduct with which you have not been charged or of which you have even been acquitted. This could occur at “sentencing enhancement”, where a judge could bring in other alleged conduct which had not been in the trial, to affect the sentence. As this was done on a “balance of probabilities” basis, there were even many cases where the judge had sentenced people for offences of which they had been acquitted by the jury on the measure of “beyond reasonable doubt”.

Fitzgerald gave the example of a person accused of dealing cannabis who had been sentenced for a second degree murder which had never been prosecuted. He said that in the Assange case, this was particularly likely to happen. None of the charges now before the court related to the Vault 7 leaks, but the defence believed these had motivated the prosecution. It was following the Vault 7 publication that Pompeo designated Wikileaks a “non-state hostile intelligence agency”. It was very likely Assange could be sentenced for the Vault 7 leaks with which he had never been charged. Joshua Schulte, the supposed Vault 7 leaker, had just been sentenced to 40 years in jail.

These kind of arrangements certainly reached the bar of a “flagrant denial of justice” which the courts had set as necessary to prevent an extradition on grounds of lack of due process.

Dame Victoria asked whether this would extend so far as to put aside extradition in every US criminal case? Fitzgerald replied no, you would have to look at each individual case and assess how great the risk. She asked whether the Vault 7 disclosures created the risk in this case, and Fitzgerald replied yes, though there were also other factors.

Fitzgerald then moved to the evidence of Protected Witness 2 and the issue of illegal surveillance of Assange in the Embassy, including of his legal consultations, and the plot to kidnap and even kill him, by the authorities of the state that was seeking his extradition. Baraitser’s answer to this was not to take it into account because it was the subject of criminal proceedings in Spain, but (said Fitzgerald) “that cannot be a reason not to look at it”.

In considering real danger to life when issues of human rights and political motivation are concerned, the strict rules of legal evidence, as in a criminal court case, do not apply. The Yahoo News article would be considered acceptable evidence in weighing an asylum application under the Refugee Convention, and it should be given the same weight now. Pompeo had himself confirmed that some of it is true.

If removed to the USA there is a real danger that Assange’s life could be targeted by US intelligence organisations. The CIA also has a major role in prison allocation and the imposition of Special Administrative Measures, defined by the UN as tantamount to torture.

Dame Sharp said that the US prosecution had said Assange could be transferred to prison in Australia. Fitzgerald said that was a highly conditional suggestion. Assange would be in any event liable for two years or more pre-trial detention in the USA, then years more if an appeal was to be heard. The conditions of transfer between the USA and Australia would be subject to diplomatic negotiation. All the time Assange would be subject to the “real possibility of extrajudicial attack”, while being held in the USA.

Finally, Fitzgerald turned away from the grounds on which appeal should be allowed against Baraitser’s judgment, to the grounds where the Home Secretary (Priti Patel I think – they come and go so fast) had failed in her duty by authorising the extradition.

Fitzgerald said the Home Secretary had a separate obligation to enforce Article 4 of the Extradition Treaty, as she was executing an instrument under the Treaty. She had failed to do so. She had also not exercised her own judgment, as she ought to have done on the Gary McKinnon precedent. The Secretary of State must also act in conformity at all times with the ECHR.

Separately, the Secretary of State had failed in her specific duty to obtain assurances that the death penalty would not be implemented, before agreeing an extradition. The United States could add further charges at any time were Assange in the US, including aiding and abetting treason or other Espionage Act charges which attract the death penalty. It was routine in these circumstances to obtain assurances against the death penalty, and it was sinister they had not been obtained.

The law on this point was very clear; in the absence of assurances against the death penalty, the extradition must be stopped by the Home Secretary and the defendant discharged.

On this rather sombre point, Judge Sharp called the end of the day, and we staggered out into a wet London evening. It was a huge amount to pack into our heads in a day for those of us with brains smaller than Mr Fitzgerald, and the large crowd that roared its approval as we emerged hardly registered with me at all.

It had gone better than I expected.

For the first time in the five years of these extradition hearings, I felt that the judges were genuinely listening and engaged. It was obvious that they had been briefed by the security services beforehand, that the only issue in this case was the placing at risk of US informants whose names had been revealed. It was also plain that they had read very little of the documentation, as they continually asked for references and seemed unacquainted with many basic facts of the case. But as the day went on, they had discovered that there was very much more to be considered, and they looked like they were considering it.

You may think this strange, but they also both came over as rather nice people. They were unfailingly polite, and it did not seem a pretence. They both found the odd moment amusing that was natural to be amusing, and engaged sympathetically with the defence team throughout. Of course, I do not pretend that any of that is more powerful than the Establishment desire to see Julian crushed, and I am well aware they both have truly Deep State backgrounds. But I left encouraged.

Julian remained in his tiny cold cell. The next day would be the US government response.



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Rethinking Ukraine: Putin and the Mystery of National Identity 579

The genocide in Gaza – or more precisely the major NATO powers’ active and practical support for the genocide in Gaza – has forced me to re-evaluate my views on Ukraine in a manner more sympathetic to the Russian narrative.

In particular, I was complacent in my dismissive attitude to the argument that the Western powers would back ethnic cleansing and massacre in the Donbass, by forces including some motivated by Nazi ideology. The same powers who are funding and arming Ukraine are funding and arming a genocide by racial supremacist Israeli forces in Gaza. It is beyond argument that my belief in some kind of inherent decency in the Western political Establishment was naive.

I apologise.

This does not mean that I was wrong to call the Russian invasion of the Ukrainian state illegal. I am afraid it was. You see, the law is the law. It has only a tenuous connection to either morality or justice. A thing can be justified and morally right, but still illegal.

The proof of this is that we have an entire legal structure governing transactions which is designed to achieve massive concentration of wealth. In consequence, the world is predicted to have its first trillionaires inside the next five years, while millions of children go hungry. That is plainly immoral. It is plainly unjust. But it is not only legal, it is the purpose of the system of law.

I am, however, content that the “Right to Protect” doctrine has not become accepted in international law, because it is in general application neo-imperialist. It was developed by the Blair government initially to justify NATO bombing of Serbia and the British re-occupation of Sierra Leone, and was used by Hillary Clinton to justify the destruction of Libya on the basis of lies about an imminent massacre in Benghazi. We should be wary of the doctrine.

(That is the major theme of my book The Catholic Orangemen of Togo).

The causes of the Russian invasion of Ukraine are plain. Alarm at NATO expansionism and forward positioning of aggressive military assets encircling Russia. The Ukrainian coup of 2014. Exasperation at Ukrainian bad faith and the ignoring of the Minsk accords. The continuing death toll from shelling of Russian speakers in the Donbass.

The suppression of the Russian language, of Russian Orthodox religion and of the main pro-Russian opposition political party in Ukraine are simple facts. These I have always acknowledged: until I saw the positive enthusiasm of leaders of the Western states for massacre in Gaza, I was not convinced they could not have been addressed by diplomacy and negotiation. I now have to reassess that view in the light of new information, and I now think Putin was justified in the invasion.

It is not that any of the arguments are new. It is simply that before I did not believe that the West would sponsor mass ethnic cleansing and genocidal attack on the Donbass by extreme Ukrainian nationalist-led, Western-armed forces. I thought the “West” was more civilised than that. I now have to face the fact that I was wrong about the character of the NATO powers.

The alternative to Putin’s action probably was indeed massacre and ethnic cleansing.

The urgent need now is for negotiation to put an end to the war. On that my position has not changed. The war is a disaster for the people of Europe. The American destruction of Nord Stream has devastated the German economy and resulted in huge energy price increases for consumers all across Europe, including the UK. There was a step jump in food inflation which has not been pulled back.

The continuation of the war will of course prime the pump of the military-industrial complex. Massive defence spending is the most efficient way to ensure kickbacks to the political class who control the flow of state funds, through both legal and illegal forms of corrupt reward to politicians.

As Julian Assange said, the object is not to win wars: the object is forever wars, to keep the funds flowing.

The truth is that the longer the war persists, the less generous Russia will be over returning occupied territory to Ukraine. The deal which was torpedoed by the West nearly two years ago (and in truth the US played more of a role than Boris Johnson – I was actually there in Turkey) ceded only the Crimea to Russia, with a Minsk plus deal for the Donbass which would have remained Ukrainian. That is unthinkable now. The major question is how large a coastal corridor Russia will insist on keeping westward from Crimea, and whether Putin can be persuaded to accept less than the historical dividing line of the Dnieper.

I do not share the Russian triumphalism at the dwindling manpower resources of the Ukraine. With the obscene billions the West is pumping into remote warfare in Ukraine, that is not the factor you might expect. But the political will of the West to continue to pump in these billions is plainly sapping, as it becomes obvious there will be no successful Ukrainian offensive. Put simply, Russia will outlast its opponents.

It has always been the case that the sooner Ukraine and the West settle, the better deal they will get, and that is more true every day. But prolonging the war is an end in itself to those who make money from it.

Putin’s historical disquisition to Tucker Carlson opened some Western eyes to another national perspective, and gave rise to widespread claims by Western media that Putin was factually wrong. In fact almost all of his facts were correct. The interpretation of them, and the position of other facts which were omitted or given less weight, is of course the art of history.

There is no question I find more fascinating in history than the formation and dissolution of national identities.

My own perspective on this – and there is no subject on which it is more important to understand the vantage point of the person writing – is governed by two factors in particular. Firstly, I am a Scot and come from one of Europe’s oldest nation states, which then lost its independence and struggles to regain it after being submerged in a new “British” national identity.

Secondly, as a former diplomat I lived and worked in the political field in a number of countries with differing histories of national identity.

These include Poland, a nation state which the historian Norman Davies brilliantly quipped “Has emerged from time to time through the mists of history – but never in the same place twice”.

It includes Ghana, a state with an extremely strong sense of national identity but which was an entirely artificial colonial creation.

It includes Nigeria, another entirely artificial colonial creation but which has struggled enormously to build national identity against deep and often violent ethnic and cultural differences.

It includes Uzbekistan, a country which also has entirely artificial colonial borders but which the western “left” fail to recognise as an ex-colony because they refuse to acknowledge the Soviet Union was a continuation of the Russian Empire.

So I have seen all this, as someone with a training and interest as a historian, who has read a great deal of Eastern European history. I have also lived in Russia and was for a time both a fluent Russian and Polish speaker. I do not write this to claim I am right, but so that you know what has formed my view.

Putin argued at great length that there never was such a country as “Ukraine”. The BBC has run a “fact check” and claimed this is “Nonsense”.

There are several points to make about this. The first is that the BBC did not, as it claimed, go to “independent historians”. It went to Polish, Ukrainian and Armenian historians with their own very distinct agenda.

The second is that these historians did not actually take issue with Putin’s facts. For a fact-check it does not really examine any of Putin’s historical facts at all. What the historians did was put forward other facts they felt deserve more weight, or different interpretations of the facts referenced by Putin. But none argued convincingly for the former existence of a Ukrainian national state or even the long term existence of Ukrainian national identity.

In fact their arguments were largely consistent with Putin. The BBC quote Prof Ronald Suny:

Mr Suny points out that the inhabitants of these lands when they were conquered by Russia were neither Russian nor Ukrainian, but Ottoman, Tatar or Cossacks – Slavic peasants who had fled to the frontiers.

Which is absolutely true: 18th century Russia did not conquer a territory called “Ukraine”. Much of the land of Ukraine was under Muslim rule when conquered by Catherine the Great, and nobody  called themselves “Ukrainian”.

The BBC then gives this quote:

But Anita Prazmowska, a professor emerita at the LSE, says that although a national consciousness emerged later among Ukrainians than other central European nations, there were Ukrainians during that period.

“[Vladimir Putin] is using a 20th Century concept of the state based on the protection of a defined nation, as something that goes back. It doesn’t.”

Which is hardly accusing Putin of speaking “nonsense” either. Prazmowska admits the development of Ukrainian national consciousness came “later than other Central European states”, which is very definitely true. Prazmowska herself has a very Central European take – the idea of the nation state in England, Scotland and France, for example, developed well ahead of the period of which she was speaking.

I should address the weakness in Putin’s narrative, around the origins of World War 2. Russian nationalists have great difficulty in accommodating the Stalin/Hitler pact into the narrative of the Great Patriotic War, and while Putin did briefly reference it, his attempt to blame World War 2 essentially on Poland was a low point. But even here, there was a historical truth that the standard Western narrative ignores.

The Rydz-Smigly–led military dictatorship in Poland after the death of Pilsudski was not a pleasant regime. Putin was actually correct about Munich: both the UK and France had asked Poland to allow the Soviet army to march through to bolster Czechoslovakia against Germany, and Poland refused (Ridz-Smigly did not trust Stalin, and frankly I don’t blame him). But this is an example of part of Putin’s narrative that countered the received Western tradition, that most well-informed people in the West have no idea happened, and is perfectly true.

The fusing back then of Ukrainian nationalism with Nazism, and the atrocities of Ukrainian nationalists in WW2 against not just Jews but also Poles and other minorities, were also perfectly true.

It is a simple and stark truth there never was a Ukrainian state before 1991. There just was not. Lands currently comprising Ukraine were at various times under the rule of Muslim Khans, of the Ottomans, of Cossack Hetmans (possibly the closest thing to proto-Ukrainians), the Polish-Lithuanian confederation and Russian Tsars.

As I have stated on this blog before, the boundary between Polish/Lithuanian and Russian influence became settled on the Dnieper. I have also published this map before, showing that history resonates through the current conflict.

There is also the case of third-party recognition of the Ukrainian nationality. I have read, for example, the letters and memoirs, both published and unpublished, of scores of British soldiers and civil servants involved in the Imperial rivalry with Russia in Asia. Many had contact with Russian officers or diplomats. They did clearly recognise different ethnic identities within the Russian Empire. The Russian diplomat Jan Witkiewicz was described repeatedly by British officers as “Polish”, for example. “Cossack” and “Tartar” were frequently used. I cannot recall any of these British sources ever using the description “Ukrainian”.

Nor did British officers who actually passed through Ukraine, like Fred Burnaby and Arthur Connolly, describe it as such in their memoirs. Now I am not claiming that if British imperialists did not notice something, it did not exist. But if there were a centuries-old recognition by the rival Empire of the existence of a Ukrainian national identity, that would definitely mean something. There does not appear to be such.

I should be interested to know where Ukrainian nationalists claim their cultural heritage lies as proof of early national identity. What is the Ukrainian equivalent of Shakespeare’s John of Gaunt speech, of Scotland’s Blind Harry, or even of Poland’s Pan Tadeusz? (This is a genuine question. There may be areas of Ukrainian historic identity of which I am unaware).

Putin was not wrong about history (apart from the dodgy bit about origins of the second world war). But the correct question is whether any of this matters.

It is not whether Putin’s historical analysis is broadly correct, it is whether this matters. I am inclined to the view that Putin is correct that there is little evidence that the people living in Ukraine, hundreds of years ago, ever considered themselves a distinct national entity.

But they are all dead, so they don’t get a vote. The only thing that matters is the opinion of those living there now.

It seems to me beyond dispute that there is now a Ukrainian national identity. I know several Ukrainians who consider themselves joyously and patriotically Ukrainian, just as I know patriotic Ghanaians and even patriotic Uzbeks. The question of how this identity was forged and how recently is not the point.

I should add there are undoubtedly a great many Ukrainians whose sense of national identity is not linked to Nazism. There is a historical and a current strain of Nazism in Ukrainian nationalism, and it is far too tolerated by the Ukrainian state; that is certainly true. But to claim all Ukrainian nationalists are Nazis is a nonsense.

The formation of national identity is a very curious thing. Ivory Coast has just won the African Cup of Nations at soccer, beating Nigeria in the final. The competition arouses huge patriotic fervour throughout the continent of Africa. But the boundaries of all the African nations, except arguably Ethiopia, are entirely artificial colonial constructs. They cut right across ethnic, cultural and linguistic boundaries.

Much of modern Ghana was the old Ashanti kingdom, but that extended much further into now Ivory Coast. The coastal areas were never Ashanti. In the east, the Ewe people’s lands are cut by a completely artificial boundary with Togo. To the north, largely Muslim populations live a much more rural lifestyle. Yet Ghanaians are fiercely proud of this imposed state of Ghana. They are proud it was the first African state to attain Independence, they are proud of its heritage of supporting African liberation movements including the ANC, they are proud of its education system. They have a real sense of national identity that goes far beyond the passionate support of its sporting teams.

Ghanaian identity is modern, ahistoric, within entirely colonial boundaries. But it is real and valid.

In Central Asia, the boundaries of the “stans” are again colonial boundaries that cut right across the pre-existing Khanates. The boundaries of these ex-Soviet republics were carefully designated by Stalin not to be ethnically or culturally coherent, to guard against the development of national opposition. So the greatest Tajik cities, Bokhara and Samarkand, are not in Tajikistan but Uzbekistan.

Uzbekistan has important similarities to Ukraine. Both are states with boundaries of Soviet republics, which have no relationship to any pre-existing state or nation. In both – and this may be a legacy of Soviet authoritarianism – the state has attempted to force national identity by compulsory homogeneity. So Russian language medium in education was first banned in Uzbekistan, and then Tajik. Ukraine has similarly banned the Russian language. This of course is nothing new in state behaviour, as Highland Scots well know.

Yet even in Uzbekistan, a passionate national identity has been created, even among Kazakhs, Tajiks etc who reside there. The alchemy by which this happens is mystifying; partly it seems to depend on a natural loyalty to whatever authority exists, which is a rather troubling thought. For Central Asia, Olivier Roy’s The New Central Asia, the Creation of Nations has some thoughts on the sociology of the process.

I am aware I need to read more on the creation of national identity, because most of my thought is based on simple observation. It is however entirely plain that national identity can appear, and can be genuine, and can do so in a period of merely decades. There is now a Ukrainian national identity, and those who subscribe to it have the right to their state.

That they have a right to the former boundaries of Soviet Ukraine is a different proposition. Given the reality that it is plain a significant minority of the population do not subscribe to Ukrainian national identity, that civil war broke out, and that this relates to historic geographic fracture lines, it seems that division of territory is now not only inevitable but desirable.

All people of good will should therefore wish to see an end to fighting and a peace settlement, of which the territorial elements are somewhere close to the current lines between the forces, with Russia giving back some territory in return for recognition of its gains. The alternative is more death, human misery and economic malaise.


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State Secrecy and Public Hearings Part One 310

At the Assange extradition hearings in Woolwich Crown Court and the Old Bailey, the public gallery was limited to five and sometimes two. The excuse was Covid. But online access was denied to Human Rights Watch, Amnesty International and numerous other groups and individuals, including journalists. The mainstream media was anyway complicit in leaving the entire hearing virtually unreported – less than one percent of the coverage given to Johnny Depp vs Amber Heard.

The International Court of Justice met at the Hague to consider Israeli genocide, and the entire proceedings were open to anybody in the world with a decent video connection, through an open link and no password. Like the crucial Assange appeal hearings coming in the High Court on 21 and 21 February, the ICJ is a public court. Yet the judges of the London High Court have passed a series of Kafkaesque regulations to limit who can see the trial, under the pretext of open access.

Here is the Stalinist nonsense in its entirety. I promise your mind is going to boggle:

Remember, as that document says, this is a “public hearing”. You have to apply for permission to watch it and state WHY you want to watch it. Presumably “It is a public hearing. By law it has to be public” is not a sufficient reason. There is no guarantee at all that you will be given permission.

You have to be in England or Wales to watch. Applications from Scotland and Northern Ireland will “not normally be granted”. Despite the fact it is the UK government which is extraditing Julian under a UK–USA extradition treaty, not an England and Wales–USA extradition treaty.

Julian is an Australian citizen. But you are not “normally” permitted to watch in Australia. It is the United States government which is seeking to extradite Julian. But citizens of the United States will not “normally” be permitted to view online.

Scots and Irish will not be permitted to view, presumably because their loyalty to the security state is known to be dubious! I have no idea what is the position for the Channel Islands or Isle of Man.

Not only does the Big Brother state want to know your identity and where you are, nobody else is allowed to watch the hearing with you. Why? What harm is it if your mum looks at it? It is a public f***ing hearing.

Who are they scared is going to watch? Why does that scare them? What do they think these naughty people watching are going to do? Are they worried Putin and Xi will be secretly watching and will do some terrible internet magic that collapses the western world? Just what is this crazy restriction about?

Why is nobody outside the state and billionaire media allowed to give live information about what is happening in the Court? Why is it OK if CNN does give live information, but not OK if a concerned citizen does it?

Why does everybody have to be threatened with two years’ imprisonment if they break these crazy rules?

I urge everybody reading this post to contact the court as specified at [email protected], and apply to watch online, following the rules in para 4 of the court order above. If you are outside the UK, please include in your reasons that the United States is making explicitly in this case a claim of universal jurisdiction for its Espionage Act over the whole world, so everybody is affected including you.

Please then put out on social media that you have applied, and encourage others to apply. Please post updates when you hear back from the court including stating regularly if they don’t reply. Post any answer you get. And go back to them and argue.

Officially this is a “public hearing”. Officially these judges are committed to “open justice”. What a farce. What are they hiding?



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Quality and Propaganda 176

On 10 October I called out a viral video as fake. It featured pro-Palestinian demonstrators in Sydney, Australia, with a soundtrack of people appearing to chant “Gas the Jews”. The video not only went viral online, it was featured worldwide by mainstream media.

The New South Wales Prime Minister attacked a parliamentarian for daring to say that the incident was dubious

Antoinette Lattouf, the Australian Broadcasting Corporation radio journalist who investigated the incident and found that it did not happen, received enormous abuse. She was later sacked when she shared online a report on Israeli atrocities in Gaza by Human Rights Watch.

Finally, 100 days later, an exhaustive investigation by New South Wales police, which involved forensic investigation of many different videos of the incident (including professional video from inter alia Consortium News), has definitively concluded that it did not happen. It was a fake.

Now here is the important point. I saw it was a fake after about twenty seconds, not 100 days. It was an extremely clear and obvious fake. There was not a shadow of a doubt that it was a fake. No serious observer could believe it was genuine. I posted the simple empirical observation immediately on Twitter.

It is stark. The soundtrack simply runs continuously over several big cuts in the video. It is obviously an overlain soundtrack. Plus many people are shown very clearly in the video, and not a single one is moving their lips as if they are making a chant like that in the soundtrack. It is not just a matter of being out of sync. Nobody seems to be doing this sort of rhythmic chanting at all.

It is not just propaganda. It is a fake of the lowest quality, which any amateur can see the problem with, instantly. So why did hundreds of mainstream media journalists all over the globe report it as genuine and even retail it on MSM platforms. Why did politicians refer to it? Why were those who queried it attacked and ridiculed?

Here is a key point I have not seen anywhere else, shared with me by Consortium News who shared their footage of the same event with the police. The representatives of the Australian Jewish Association, who produced the fake footage, refused to hand over the original footage to the police investigation. Yet it does not appear they face any criminal charges, and they have the massive front to still be pushing their lies in the state and billionaire owned media.

The point is that Israeli propaganda can be of extremely low quality and obviously fake. It does not matter. The politicians will buy it and retail it because they are in the pocket of the zionist lobby. The mainstream media will promulgate it, because they work either for billionaires who share the zionist creed of the ruling classes, or, like those in the BBC, for states controlled by politicians in the pockets of the zionist lobby. All Israel has to do is chuck the propaganda out there. It will be massively amplified no matter how poor it is.

Let me give another example. You may recall seeing, on all broadcast media, the entrance to the “Hamas tunnel network” at Sheikh Hamad hospital, as evidence of why Israel has to target hospitals because they are essential nodes in Hamas “eight hundred mile” tunnel network. I believe it was also among the images Israel flashed up at the ICJ, though these were displayed so briefly it is difficult to be certain.

Well, now the IDF have totally destroyed the hospital and rendered it inoperable, they have moved on. We can now see it is a water tank. I cannot find a single example of any mainstream media issuing a correction or even saying it is a water tank.

The point is that the propaganda does not have to be good. It can be rubbish. You show a picture of a hatch, say it is an entrance to a secret tunnel network, and the poodle media and massive hasbara online operation will amplify it massively. While the truth not only does not make mainstream media, it has to force its way through massive suppression of social media. My posts on X/twitter currently have less reach per repost than zionist accounts by a factor averaging around 50.

The extreme suppression manifests in strange ways. When I tried to find my tweet calling out the fake soundtrack, I could not find it at all. It had disappeared from my timeline completely. I appreciate this is too small to read properly, but this is my timeline from 10 October to show what I mean.

Nor could any search I tried bring it up. Yet the tweet was still extant, and someone kindly sent me a link to it. It had just been cloaked from me, and possibly some others, but not from the person who sent it on to me.

And as for Antoinette:

Well, being the only reporter in the whole of mainstream media to have told the truth does not get your job back if you have committed the greatest sin and contradicted the zionist narrative. I fear she will wait a very long time for any apologies from the Establishment.

The thing you have to recall is that every single one of them – the Israeli propagandists, the politicians, the mainstream media journalists and the hasbara operatives on social media – know that they are lying. They just believe that the lies are not important in pursuit of the greater good – or rather in pursuit of Greater Israel.



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