 I was there when this extradition treaty was reached. It was concluded behind the backs of Parliament during the summer recess, when no Member of Parliament could question the treaty which David Blunkett, Tony Blair's Home Secretary, corruptly and secretly concluded with the United States, a one-sided extradition treaty, the likes of which no free country would ever sign with any other country, where they'd never have to send anybody to us, whatever they've done, even if it's killing a young boy on a motorway because you're driving up the wrong side of the road. You don't have to send anybody to us, but we will send anybody to you without even just cause having to be produced. But when Parliament returned in the autumn, I bearded David Blunkett in the Members' Lobby and told them all the things that I thought were wrong and dangerous with this extradition treaty, and he said to me, you're worrying unnecessarily because all of the points you're making are taken care of by Article 4.1 of the treaty, which precludes the extradition of people in Britain for political offences to the United States, and now the judge is telling us that although that's on the face of the treaty, it does not apply. What madness is this? If we allow Julian Assange to be sent for the rest of his life, the rest of his life into the dungeons of the US injustice system, journalism, freedom, freedom of speech, democracy itself will have been murdered in plain sight on our watch, and that's why we are going to fight and fight and fight again to free Julian Assange, free Julian Assange. Get out your notebook, there's more. Welcome to CN Live, Season 6, Episode 5, the Assange Dilemma for the United States. I'm Joe Laurier, Editor-in-Chief of Consortium News. And I'm Elizabeth Boss. The High Court's ruling on Tuesday in London has posed a dilemma for the Biden administration. It must provide written assurances to Britain that it will respect Julian Assange's First Amendment rights if it wants to have him extradited to the US as early as next month. Without that assurance, the High Court said it would allow Assange to appeal the Home Office's extradition order on three grounds related to his First Amendment rights and protection against the death penalty. If the US wants him now, it must promise to allow him those rights, otherwise it will have to battle it out in an appeals process that would drag on for at least another year or more. The Biden Department of Justice thus must weigh the pros and cons of delivering the assurances on the First Amendment and the death penalty by April 16 to have him extradited or missed the deadline and go through with fighting the appeal. Allowing Assange his First Amendment rights, which the US has threatened to deprive him of, could possibly come part of his defense at trial and perhaps set up a constitutional challenge of the Espionage Act under which Assange is being charged and which clearly conflicts with protected speech. After the US lost the initial judgment in a lower court in January 2021 barring Assange's extradition based on his health and the conditions of US prisons, the court allowed the US to issue written assurances that it would not mistreat Assange in custody. These were conditional on Assange's behavior, however. Amnesty International said the assurances were not worth the paper they were written on. Nevertheless, the High Court accepted those assurances carte blanche without allowing Assange's lawyers to challenge their validity in court and overturned the ruling barring extradition. The UK Supreme Court then refused Assange's application to challenge the assurances and the case went to the Home Secretary who promptly signed the extradition order. Assange is now trying to appeal that order. His application for appeal will most likely be denied by the High Court if the US delivers on the assurances. It was the same High Court, though with different judges that accepted the US assurances without challenge the first time. One thing is different this time, however. The High Court on Tuesday ruled that Assange's lawyers will be able to challenge the credibility of US assurances in written submissions. The US would then have two weeks to respond in writing to those challenges. Though it might seem unlikely, given the bias shown towards the US by British judges so far in this case, there is an outside chance that the US assurances would be thrown out. Presuming that they aren't, Assange could then be on a plane to the US on May 20, the preliminary date for a hearing on this matter, barring a last minute intervention by the European Court of Human Rights. So would it be better, would it better serve Biden's interest to miss the April 16 deadline for the assurances in order to keep Assange in Belmarsh a while longer, despite the risk that the US could lose on appeal? The last thing Biden needs in the midst of his reelection campaign is to have a journalist arrive on American shores and chains to stand trial outside Washington for publishing true information about US state crimes. Donald Trump, whose administration had Assange arrested, indicted, and thrown into Belmarsh, would most likely, hypocritically, make much out of Biden prosecuting a journalist. Trump would understand that some voters who support Assange might switch their support to him, and that his own base is made up of libertarians who support Assange's constitutional rights. So it might be very much in Biden's interest to miss the deadline for the assurances to prevent Assange from coming to the US before the election, even though the 66-page ruling by two high court judges on Tuesday was in most ways favorable to the United States. For instance, the court on Tuesday rejected outright the most substantive and significant points raised by Assange's barristers at a two-day hearing, heard on February 20th and 21st. It rejected six grounds and all. The argument that the Home Secretary's extradition order was incompatible with the US-UK extradition treaty that bars extradition for political offenses. The high court also rejected that Assange was being prosecuted for his political opinions in violation of the UK-US extradition act. These two points would mean that Assange's revelations of US war crimes is now irrelevant to his case, as the court does not find his case to be political. Significantly, Tuesday's ruling did not allow Assange to introduce new evidence in the case that came to light after the lower court ruling, namely that the CIA plotted to kidnap and assassinate Assange from the Ecuadorian embassy in London, where he had had asylum before being arrested and thrown into Belmarsh prison, where he continues to languish. In the middle of this came word last week from the Wall Street Journal that US prosecutors and Assange's lawyers have discussed the parameters of a possible plea deal, though it seems those talks have stalled. Constitutional lawyer Bruce Affron, who was one of our guests on today's show, last August told CN Live that Assange could plead guilty to mishandling classified information, a misdemeanor with a maximum penalty of five years, which happens to be how long Julian Assange has served already in Belmarsh on remand, and that he could and should enter the pleas remotely from London and not go to the US to do it where the US could change its mind once he got there. Joining Bruce Affron on today's program is Marjorie Cohn, a law professor and former president of the National Lawyers Guild. Craig Murray, a former British ambassador, was close to Julian Assange and Pulitzer Prize-winning journalist Chris Hedges. Welcome, everybody, and thanks for coming. Marjorie, let's start with you since we know you have to go to another meeting after this. Could you just first give me your quick take on the ruling on Tuesday as you read it? Well, a difference here between this ruling and the last time that Elizabeth mentioned that the US provided assurances that Assange would be treated humanely if extra died to the United States is that these assurances, the High Court panel said, have to be satisfactory. And so if the Biden administration came through with assurances, then there would be a hearing on whether they're satisfactory and the defense, Assange's legal team, would be able to challenge that. Now, in terms of the three issues, the do you want me to go through the three issues or do you want me to? Yes, yes, yes. Okay, all right. I do want to say that the earlier stage when these assurances were provided by the US and they were accepted at face value by the High Court and the High Court reversed the denial of extradition that the lower court had ordered based on humane grounds, they didn't really deal with the fact that the US actually has a history of reneging on similar assurances. The US lies, they say yes, we'll ensure humane treatment and this happened in a case with a person in Spain who was extradited to the United States after US gave assurances and those assurances were violated. One of the things that the panel said in this in this recent decision is that there is an opportunity to challenge these assurances if the US comes forward with them, quote, Mr. Assange will not therefore be extradited immediately unquote. That implies to me that in the absence of that claim then he would be extradited immediately. He would immediately be put on a plane and so briefly the three grounds that Assange is allowed to raise on appeal assuming that Biden doesn't come forward with assurances or those assurances are not satisfactory is first of all his right to freedom of expression under article 10 of the convention the European Convention on Human Rights would be violated because he would be denied to the ability to raise the First Amendment in his trial and they the panel said the First Amendment is very similar to article 10 of the European Convention. Gordon Cromberg who is a prosecutor who would be prosecuting Assange if he were extradited said that foreign nationals are not entitled to protections of the First Amendment. Mike Pompeo former CIA director said that Assange has no First Amendment freedoms because he's not a US citizen and the Supreme Court ruled in 2020 that foreign citizens outside the US territory don't possess rights under the Constitution and but let's assume that the US that Biden the Biden administration does give assurances that his he would be able to raise the First Amendment and that the court found that those were significant assurances that really doesn't mean anything because one of the things that the British courts don't understand is the US doctrine of separation of powers I mean we're just dealing here with the executive branch the prosecutors can give all the assurances they want but the the judiciary another one of these three branches of government in the US doesn't have to abide by the executive branch claim or assurance so the and one of the things that the high courts the panel on the high court said is that Assange would argue at trial that his actions are protected by the First Amendment quote he contends that if he's given First Amendment rights the prosecution will be stopped the First Amendment is therefore of central importance to his defense and so that's why they are giving Assange another shot at possibly raising this issue on appeal the First Amendment issue then the second issue the UK extradition act forbids discrimination based on nationality Julian Assange is an Australian citizen if he's extradited to the US he would be tried in US courts and the extradition act bars extradition if an individual might be prejudice due to his nationality and due to the centrality of his first of the First Amendment to his defense the panel noted if he's not permitted to rely on the First Amendment because of his status as a foreign national he'll thereby be prejudiced potentially very greatly prejudiced by reason of his nationality that's the second issue the third issue is that there are inadequate safeguards or assurances that he wouldn't be sentenced to death if he was sent to the US the extradition UK extradition act says that the secretary of state this is in the UK must not order a person's extradition if he could be will be or has been sentenced to death unless there's a written assurance that's adequate that says that a sentence of death either will not be imposed or will not be carried out if imposed now none of the charges that Julian Assange is facing right now carry the death penalty but he could be extradited to the US and then charged with aiding and abetting treason or espionage both of which carry the death penalty and Ben Watson KC who's the secretary of state for the UK home department admitted the facts alleged against Assange could sustain a charge of aiding or abetting treason or espionage and that if he's extradited there's nothing to prevent a charge of aiding or abetting treason or a charge of espionage from being added to the indictment and the death penalty is available for those two crimes now Donald Trump you know it's hard to know what he's going to say at any given time but when he was asked when he was before he became president about WikiLeaks leaking the documents he said this is Donald Trump quote I think it was disgraceful I think there should be a death penalty or something unquote now the president of the United States is not supposed to control the Department of Justice they're supposed to be independent but Donald Trump doesn't follow those rules and so he could if Julian Assange is extradited if Trump is elected president he could prevail upon the Justice Department to add one of those charges that would make him eligible for the death penalty regardless of any assurances that the Biden Justice Department gives and so there is a possibility that and Joe kind of alluded to this in a different way that instead of filing assurances the Biden administration will opt to avoid the political pitfalls of Assange being extradited to the U.S. before the election and actually offer a plea bargain with credit for time served to end the case right so before we move on to Craig thank you for that I want to ask you what are the standards that the court these two judges will use to judge whether these assurances are satisfactory should note that it's very significant that these judges are at least giving Assange's lawyers the right to challenge the validity and the credibility of the show in which they were not given that right the first time when the high court accepted those assurances as you say caught Blanche what are the standards that the obviously they're going to look at the language the language in those other assurances was very conditional what will they be looking for a marjorie well this whole idea of what significant assurances are what is significant mean is very subjective and it there's really I don't think there's any clear standard clear and convincing evidence or beyond a reasonable doubt or anything like that that I know of and so it's really going to come down to the subjective views of the high court judges at that hearing assuming Biden prevent presents any assurances about whether or not those assurances are satisfactory and I I hope and and suspect and am pretty confident that the Assange defense will argue that there is a separation of powers doctrine in the United States which means that regardless of what assurances the executive branch through the Department of Justice the prosecutors provide whether they are significant or not are not worth the paper that they're written on because the judiciary a separate branch of government can overrule them the marjorie but I know you have to go so I'm going to ask you one more before we move on to Craig how reluctant do you think the Biden DOJ will be to allow the First Amendment rights to Julian Assange how crucial would that be in his defense and would it also possibly set up a challenge of the constitutionality of the Espionage Act because this seems very significant that they are demanding that the US promise that they allow him these first one rights they could certainly at trial if it goes to Alexandria could say that use that can't his lawyers assange's lawyers use that yes certainly the First Amendment goes to the heart of Julian Assange's defense if he has the right to free expression and and freedom of speech then what he did would would what he what he's accused of doing would not violate the law so it's very central to his defense as the High Court panel noted and for that reason it's probably likely that the prosecution is going to argue consistent with what the Supreme Court has said that foreign nationals don't have a constitutional rights so I think I think that that is really a critical argument and I think you're right Joe I think it very likely could set up a challenge to the to the Espionage Act that it's unconstitutional sorry they won't get him if they don't promise that he has those rights though I mean this is true but again they can promise anything they want and that doesn't mean they won't go back on it they won't renew on it okay all right I was afraid you were going to say that Craig can you weigh in on this your general thoughts and then respond to anything that we said in our opening and to Marjorie um the first significant point is that it's not true that they won't necessarily get him unless they provide the significant assurances because there's another fate what the court has said is that he has the right to appeal on these points unless assurances are received if those assurances are received his right to appeal falls and he's extradited if the court considers the assurances sufficient if the assurances are not sufficient it doesn't mean he's not extradited it means he has a right to appeal those points right there's then a hearing substantively on those points and whether they're strong enough to prevent the extradition so it's perfectly possible for example that on his right to rely on the first amendment that the assurances as to no discrimination by nationality are not satisfactory therefore he's allowed to appeal on that point but it was substantive hearing at that point they come to a decision that wasn't a strong enough point to stop the entire extradition so the assurances could fail and he could still be extradited and I think it's very important to realise that and I can actually see that happening I can see the prosecution arguing that well no we can't because it's up to the judge we cannot give a firm assurance we can assure for example the prosecution won't raise the point but that still doesn't mean the judge isn't going to follow that supreme court decision in USA versus open society and rule he doesn't have those rights but we can promise the prosecution won't trust it but we can't bind the judge but we are a democracy where the United States the United Kingdom's ally we're a category two power under the extradition act of the safe place to go we believe in a rule of law you can safely lead this to the judge the judge will give it a fair hearing the fair decision and the court may say yeah that's okay but it's not any definite discrimination by nationality here or they could argue it's not discrimination by nationality as such every country treats non-citizens and citizens in a different way when outside the country as regards consular protection and all kinds of things so this is not an unusual discrimination by nationality all kinds of arguments they can put forward which frankly aren't very strong but which the court had decided to accept even in the absence of assurances and given some of the crazy things they've accepted so far like the idea that the no political offences the idea that the no political offences bar in the treaty doesn't apply because it's not been incorporated into UK domestic law for example and I wouldn't put it at all past them to stretch to to saying okay they couldn't provide that assurance but nonetheless the appeal doesn't succeed on that point once it's actually heard in the substantive hearing on the 20th of May um I think that it's actually very surprising but no assurance has been given on the death penalty because that's absolutely routine it happens in loads of extradition it's normal it's a template taking two minutes to do it uh they're very used to doing that and there's no reason not to give it bluntly they actually don't want to execute Julian they want to keep him entombed for life uh incarcerated in in in the kind of slow death in which he's a warning to other journalists as opposed to providing a martyr through execution so they could easily give that assurance and in fact they haven't given that assurance I think is strong evidence that um I think is strong evidence that they are trying to just spin it out until after the election but the assurance on the death penalty is different the assurance I said they could not give a satisfactory assurance against nationality by discrimination but the court could then still rule that isn't actually nationality by discrimination and still let him be extradited the assurance on the death penalty is in a different category you absolutely cannot extradite without the assurance on the death penalty so they have to give that one and they will give it by the deadline they'll go right up to the deadline but they will give it on the deadline I'm sure that one that one will be given and one last point um I can talk for hours but but then many people want to talk one last point is you know the significance of saying that the treaty that the treaty provision against political offences does not apply because the judgment makes it absolutely plain that that applies to all the 156 extradition treaties which the UK has uh which bar political extradition for political offence so what they're saying is you know uh Saudi Arabia Iran Russia China you have dissidents here come and get them because we are not going to apply the uh the no political extra offence extradition per extradition a provision of any of those treaties and the ramifications of that uh you know uh are many of the the horrible ramifications for freedom in in in this case as a whole thank you um we'll come back to you Craig as Chris hedges well I think we have to remember that the extradition request was only pushed forward uh after the uh exposure of the vault seven documents which expose the CIA's ability to hack into our phones computers cars uh and use them as listening recording devices even when they're turned off and uh and so I think it's uh a very probable that if uh and of course this is not part of the uh extradition request but I think it's very probable that if he is extradited uh those charges will be added to the indictment so the engine behind this is clearly the CIA uh and they uh they have a vested interest in seeing that Julian is punished for this security breach that's when you got the statements by uh then CIA director Mike Pompeo that WikiLeaks is a hostile intelligence uh agency I'm I'm mauling the quote a little bit but uh and we have to remember that that's the that's the engine driving this it's not coming out of the biden white house of course it was trump who uh demanded the extradition it is really coming out of the cia uh and and I think much of what happens to julian is going to be colored by the character of the cia the cia is in essence not an intelligence gathering agency it's a paramilitary force it's that's primarily what it does that's why they discussed assassinating or kidnapping julian because that's what they do that's what they know how to do that's what they do all over the globe uh and I think that that factor is is very important because that uh you know the the the cia is not crossed by any elected official diane feinstein tried to do that and it didn't when this was on the torture because they're running black sites and we're torturing and I'll always remember that press conference where she walked out very ashen and they had like tapped into our computers and I mean they they sabotage the entire investigation and feinstein who's no flaming liberal frankly was appalled that and said you know you cannot remember the exact words but it was something like you cannot cross these people so this is an extremely important factor in what's happening to julian and I think that we can be very sure that the impetus behind the extradition and the the demands for extradition supersede the democratic party and come out of the intelligence agency and there's no question that if extradited he will be hit with those charges for vol 7 which right now are not part of the indictment so uh that that you know makes me very pessimistic about julian's chances because I think the the cia is determined to make him pay as a kind of example and so we're not really talking about the iraqi war logs anymore we're not talking about the bedesta emails we're talking about something in the eyes of uh you know the the the power the especially the deep state power something far far far more serious and uh and that's why I you know is it is it advantageous for biden uh to keep him uh locked up in belmarsh of course uh but I don't think it's I don't think biden's driving this why do you think they didn't put that into that show yes yes yeah um in 2017 it wasn't just the cia donald trump himself personally asked for options to kidnap and or kill julian asanj so chris why didn't donald trump's administration in 2017 2018 when they uh indicted julian asanj for the war crimes he that wiki leaks exposed in 2010 2011 why didn't they include those vault seven charges then i mean that's a that's a good question i i and i which of course i can't answer uh why didn't they include them i don't i don't think they needed them uh they they uh they already had uh a kind of process in place uh by which they could charge him i i think it i think there's no question that if he was extradited the exposure of vault seven would be added i i just don't see how that's but why they didn't do it probably because they didn't need to i wonder do they the aspirant dodge act does carry a death penalty in time of war isn't that correct am i wrong there am i confusing that with reason it does so um i don't know why would the could margaret said earlier you'd have to have other charges i think it was margaret that we have to have other charges added when he's not charged with espionage per se he's charged with offenses under the espionage but he's not charged with espionage if he was charged with espionage then it would carry the death penalty i see okay bruce affron bruce was um a way ahead of the game on this plea deal and he's told us back in august last year that julian could uh plead guilty to mishandling official information or classified information that's a five-year maximum term and he's already served those five years in bell marge and he also said that um uh what did he say he said that uh that he could remotely do this plea this plea from here in london rather than going back to the us where the us could change their mind so bruce i want you first if you want to weigh in on what we've been discussing your reading if you read the the 66 page ruling what is your overall assessment then i want to talk to you about the plea deal if you were ahead of the game there sure uh thanks joe i think the decision was very predictable once the us representative conceded that they can't control the death penalty in this case obviously uk law bars extradition if the death penalty is available and it was a rather extraordinary thing for the us representative to say well if the trump administration comes into office they may seek the death penalty based on new charges similar to what chris is alluding to and to me that was an extraordinary concession probably unnecessary because it's somewhat speculative and i read it as the biden administration trying to get a denial of extradition to get off the hook so to speak uh australia is pushing heavily for julian to be sent back home australia is a critical us defense ally and i'm reading it a little differently i'm reading it that that concession was made to set up the basis for a denial by the court in the uk because clearly if the death penalty is available there can be no extradition and it looks to me and the decision was very predictable once that concession was made so i i see it as the us is trying to kind of get out of a difficult position by making the very concession that would block extradition with respect to it first of all there's no way anyone can guarantee there won't be a death penalty sought clearly a future justice department could do that by the time julian were actually extradited process given pretrial proceedings there's still plenty of time for a trump administration to do just that seek the death penalty on new charges so there's no way to guarantee against it i think that concession was right i think was also offered to to have a legal way out of this problem with regard to the first amendment i think as margaret said you know the the whole concept of an assurance ignores the separation of powers you know that's very correct i mean clearly no administration representative whether it's a uk lawyer or an american lawyer can say that a court is going to respect first amendment defenses in charges of this nature it's up to the court to make that decision and we're in a very novel area of law journalists have never been prosecuted before for this type of issue julian certainly falls arguably in the category of a journalist so does wiki leaks and there's no way to predict whether first amendment defenses will be allowed i mean the court itself made the point that on its face anyway he's not being prosecuted in the us for speech violations but rather for the taking of data illegally or information illegally so right there there's an issue will the first amendment ever be respected in this case there's absolutely no way any assurance let alone what the court wants a significant assurance can be given no administration can guarantee that and we're in a field of law never explored before in the us and there's absolutely no way one can argue that the first amendment defense will be allowed give forgetting entirely whether a foreign national can assert those those rights and if julian's actions occurred outside the us there is an argument that the first amendment wouldn't have applied in the first place however part of julian's actions occurred while he was in the us and the first amendment logically should apply no matter what but there's no way to guarantee what a court will say in an unusual situation like this dan ellsberg was prosecuted for similar offenses but not the new york times not the washington post so we have no knowledge based on any precedent whether the first amendment will be respected so my gut feeling is in may there's going to be no capacity to give a significant assurance on either ground actually nicks administration and panel the grand jury in boston to indict nil sheen and the other times reporters and it fell through because they discovered it was discovered that they had both fbi and why it tapped ellsberg's phone so the reporters came forward and so wait a minute we were talking on a phone so you were why you're tapping us too that's how that collapsed so they've been attempts including by fdr during the second world war of the chicago tribune published some cables that japan had that uncre unencrypted cables from japan on the midway incident so but this is the first successful prosecution given what you said there's no case law allowing it there's no no it didn't happen right there was no indictment they tried but it didn't this is the first time someone's been in die given what you said about the u.s trying to get biden word the u.s administration trying to get out of this what does that say about a possible police still being a valid possibility just in the middle of all of this with the high court because that still happened right well let me just say this obviously what i'm saying differs somewhat from what chris was saying uh because it's a suggest thing you know there's an intelligence community imperative at work you know there could be but i think there's also a political diplomatic imperative at work in which the administration is trying to get out of that vice you know the intelligence community wants this i think the administration is looking for a way around it and that's where they gave these concessions in the court in britain with regard to a plea julian is not really a fugitive he was in the u.s he announced what he was doing he stuck around for a while nobody launched charges against him and he left he's not an american he's no duty to come back so he doesn't really meet the standard of being a fugitive so that's not going to bar a remote plea and it's a concept no one's really paid attention to julian has the ability to do a remote plea and it is absolutely permitted by the rules not usually done but he can do it a conspiracy to mishandle or aid in the mishandling of protected information carries a five-year term he's already served five years the plea can be entered time served can be represented and he goes off to australia i assume the the brits don't want him there anymore so i think he'd be going to australia there's absolutely nothing barring that plate and um it would make sense it would at least achieve the legal message the government wanted or at least the trump administration wanted and it would get the u.s out of a difficult diplomatic and political problem i gotta point out if julian has prosecuted it creates a storm under the constitution and it's uncontrollable no one knows where it will go so i think the government has every incentive to try to set it up so that there is pressure to do a plea and likely lose the extradition hearing at the same time he would have to plead to a conspiracy to mishandle classified material with chelsea manning that's one charge that's one charge and um he could plead to aiding and abetting someone else to do that you don't need the conspiracy charge necessarily but all of that would carry prison time equal to what he served and uh there's a very simple solution he's already served five years in prison let's not forget that that all we need is the conviction and so since i think a judge is not likely to give him more time than that anyway uh this is a solution that should satisfy everyone and i have to agree julian should not come back to the us our prison system cannot be trusted to behave gently in this situation uh let me just experience for example was rough and julian will be in the same category i just want to make one point and i think joe would back this up is that that that opposites that the uh decision by the prosecution not to offer those guarantees was intentional uh and i i think one of the things that struck uh joe craig myself who sat through the two days of hearings was how uh amateurs and ill informed and sloppy the prosecution was in fact uh at at one point they were simply reading and after david by gordon cromburg from 2020 uh making all sorts of accusations that already been uh disproved so uh it does come down to intent and i'm not a hundred percent let joe and craig because they were both there i i didn't walk away that that the prosecution after listening to them for two full days completely knew what they were doing well the absence of james louis was uh sorry just i wish i wanted the absence of james louis a far more uh experienced prosecutor well it really did show up sorry bruce well i wasn't there obviously i don't have that insight on it but just reading the reports afterwards i was struck as a lawyer by that concession it's the one thing that would guarantee the inability of the british court to do this and by the way the british probably don't want to tick off the australians too much either so it almost to my mind maybe amateurism is the answer they were not looking to forcefully defend their case that's just how i read it as an observer who saw the reports on that concession it's just it struck me as a lawyer that way that you don't make that admission unless you're trying to get out of the problem dreg do you want to add something yeah i think on the diplomatic assurances and i mean you've got to remember that there's nothing if you like special about the case of julien assange in this sense that if you're saying well the administration can't guarantee the behavior of any future administration well that's true in any case and if you're saying we can't guarantee the behavior of the courts that's true in any case and the united states regularly gives guarantees against the death sentence and to the uk and to other european powers because almost all of europe it has to give that kind of guarantee before it can extradite any serious criminal so it's never stopped them before and it would stop all of them you know the point you make would stop them ever doing it again and ever being able to extradite a serious criminal from the u.s against so they're not going to stick with that there will be a guarantee against the death penalty i'm sure it will come in at the last minute i could be wrong we will see but and the other thing point i want to make is this the diplomatic assurances thing that there's there's a big legal literature on it if you if google the weight of diplomatic assurances in the uk in particular there's a big legal literature and again it's not only the united states the united kingdom receives diplomatic assurances that it won't mistreat people from saudi arabia and from jordan and from all kinds of countries where everybody knows that this is nonsense and these have no weight whatsoever but they are accepted because otherwise we never be able to extradite anyone that's the way the courts look at it and the and they actually state it was stated in court and stated by the judges and i believe it's stated in this judgment it was certainly stated in beretsa's judgment that the extradite the assurances by the extraditing country must be taken in good faith that the the good faith of the state with which you have an extradition treaty has to be the fundamental assumption and that's it was only asked how the court will deal with it and and the court will give any balance of doubt it can to to the united states and i say it's a worldwide thing i mean there are literally hundreds of examples of state there's an awful one in jordan where they gave assurances they wouldn't mistreat someone and then they tortured them to death it's a regular problem and everyone knows these assurances are meaningless but they are nonetheless a very controversial fiction in in in our legal system of which the courts are very fond and they're not going to be abandoned in this case i think i think i'd agree with that but on the first amendment issue i don't see how any assurance could possibly be given as a matter of law in the us there's no way to say a court will accept such defenses because on its face the law doesn't recognize the first amendment defenses and so i i think you're right the diplomatic assurances are routinely given but here the the assurance of an actual defense under the constitution i don't think could be given uh but to craig's point it's actually right they always say the death penalty won't be given and that's why it struck me as so incredible that they said we can't guarantee it this time and then that's why i took the position i did that normally they do say that and all of a sudden they can't uh it seems to me they're they're setting it up for a fall so to speak and that solves an immense problem for everybody Elizabeth you have some questions i believe sure yeah chris i i liked your article and especially your point you made earlier about the cia being the engine behind this persecution of asanj and i just wanted to ask you to comment on the judges prohibiting the submission of new evidence relating to the cia's plan to kidnap or assassinate asanj after they had already spied on private meetings with his lawyers his doctors and practically everyone who visited him well they dismissed it because it was journalism uh it wasn't like they had an internal document um and you know what they those three points that they have allowed him to pursue are all technicalities fairly minor technicalities um i mean i just and i you know craig and joe were also in the court but i read the response on the part of the prosecution as not willful uh but they didn't know uh because remember the judges kept pressing them more than once on both the first amendment issue and on the death penalty and there was one point where one of the prosecution remember she just went off in this kind of long almost incomprehensible diatribe and i think they didn't know i don't i don't think it was intentional i you were both in the courtroom i don't know what you think i couldn't tell i just couldn't go craig i'd be interested in what craig asked to say i i was a bit surprised about her reading the cromburg uh affidavit on and on like they had nothing better to say and on the death penalty it was pretty extraordinary when watson the lawyer for the home secretary actually admitted that they'd never asked you asked for the assurance what they're supposed to do they never made a request for this assurance and i was flabbergasted by that i don't know the explanation except maybe the one that bruce is offering i was um uh i was surprised that the prosecution seemed very weak dovet dovin in particular seemed extremely weak whether she'd actually seemed although she was the number two she'd seemed very very strong and forceful in the old baylee and the extradition hearings and um i found it cullier um and i i felt she'd lost belief in her own case was it which came over to me but um it they could tell they were doing badly and they were doing particularly badly and i um you know i can i can prove this because i wrote it and published it but you know i i could tell what this judgment was going to be it was obvious from the judge's questions and this judgment was exactly what i predicted it would be but they would be allowed to lead a leave to appeal on these two points only and that came over because the prosecution really made made no effort to answer but there's there's one important point we haven't um touched on i think and that's the they did take the yahoo news stuff quite quite seriously because the standard i think mark summers argued um successfully that the standard of proof required in the next tradition hearing is that like the standard proof in in an asylum claim you're not looking you're not looking for sort of criminal standard of proof that the evidence is true you're looking for a balance of probability that has this person proven a fear of persecution um and so they accepted in if you like the basic truths in the yahoo news report but then they came to this astonishing conclusion which i think will go down in british legal history with a paragraph that says that um it may well be that the uk that the united states was planning to kidnap or assassinate julien assange but if we extradite him they won't need to kidnap or assassinate him and therefore it is okay which has a piece of legal reasoning uh you know this person was trying to kidnap you but if we give you to them then they won't need to can kidnap you therefore it's fine what was absolutely breathtaking uh it really is a paragraph i had to read four or five times in order to to believe it said what it did say paragraph 210 of the 66 page document it's um it is an unbelievable statement at least but i re-interrupted oh go ahead a marjorie i believe uh has just let us but uh yeah and i i think that is an amazing amazing paragraph and also i wonder christ you're mentioning um as well that um regarding the cia's attempt to you know extra judicially attack assange what would prevent the the us um basically the deep state going after assange if he did go back to australia if you if he was set free how how could he ever really be safe i i doubt the intelligence community would allow him to ever publish anything speak out ever again i can't imagine that they would allow that no i mean look i i had to cover the cia as a foreign reporter i watched them work in places like el salvador and there it's murder ink uh you know these are really you know they recruit now primarily out of the special forces uh 60 000 members of the u.s. military are part of these special forces uh seals rangers etc um they function really frankly as death squads i mean that's you have to remember the character of the people who are driving this extradition um and it's not biden or the democrats uh i agree with what bruce and everyone has said that biden doesn't want it uh or i mean they'd have to really be out of their minds uh at this point given how precarious their political situation is um but uh the power of the cia is such that it is really unaccountable it it is it it is a state within a state uh and i think it's very clear that they are determined to make julian pay and the best way is to make him pay is to i think as craig said in tumum in florans for the rest of his life and i i i uh i i guess i'm just more pessimistic about where we're headed than others and i and i i really read the court refusal to give those guarantees as uh and i of course a lot of it was the in the inflection of their voice that they didn't know they they weren't prepared to give those guarantees and uh they were uh both of the lawyers were not very competent and they they just were on the spot uh and the judges of course pressed them uh but they didn't have instructions as to whether those guarantees could be provided and so that's how i read it they didn't provide them you know i'd like to comment on that the most important issue in these cases is the death penalty i mean this is the in english law or anyway this is the starting point of the analysis frequently i mean if the death penalty is available there can be no extradition no one could be ignorant of that so it's shocked strikes me that any competent attorney would have made that inquiry and been prepared so that's why i think in a sense it's almost a setup because it's just so shocking that nobody would make that inquiry it's almost as if and they went further than that they said well the trump administration could impose those charges with the death penalty so they went further than saying they don't know they went out of their way to say it could happen and i i just can't believe any competent attorney would not have prepared on that one point it's a major issue in extradition and so um at least from england and the uk rather so it just strikes me as something that was almost set up uh and you see you see this sometimes in cases where the government wants to get out of a prosecution and it it it does things that will let that happen and everyone kind of goes away so it's hard to know exactly you know chris is right about the intelligence community's influence but this might be one way the administration has a fighting back you know setting this up as a way of countering the impact the influence of the intelligence community and saying well it's not our fault the court won't extradite so it could be a way of getting around that influence i don't know if i would blame the lawyer because it was the home the home secretary who did not ask for these assurances and i think that's uh uh that's where the authority rests in that question but let me raise this to bruce is the last lawyer standing here what charge could he get as uh chris said when he gets to the us he could have another charge he he's alluded to vault seven but where's the death penalty in the vault seven leaks what crime would he have to be charged with in the us to get the death penalty side espionage remember the the government well that's that's with the charge but remember the government's contention is that by disclosing this information he allowed states hostile to the us and that would endanger american defenses to have information that could achieve that and and that's all that it takes to get the death penalty it's important to realize that and so um they conceivably could charge him they can pick any number of discharges of information they haven't charged yet and and charge it in that way or they can even seek to amend the existing indictment the the obligation to hold back on the death penalty does not arise until after the arrangement so they're not even obligated on the us law to at this point make a statement on the death penalty doesn't even arise yet and so there's all sorts of opportunities still for that to happen and it's it's more than just a theory though obviously no one's going to execute julian but it's it's a it's a fact that could happen and um and so it's available as a way for the court to deny extradition and i'll i'll just stress again i don't see how anyone can give assurances on the first amendment defense and um and there is by the way a strain in us law that says the first amendment does not apply outside the us to persons or actions outside the us and that's another and that they could be argued that much of julian's actions took place outside the us and therefore he might not be subject to that defense so there there's a lot of room here for the court to have to deny later or allow further appeal now if you remember when you read the uh the 66 page ruling there's an interesting admission by the two judges that they admit that he acted in a political way that it was protected political act that he exposed criminality yeah but that he was never charged and none of the uh leaks had to do with a us war crime had to do with this mostly about the informants being put at risk which we know is a lot of rubbish if you know the whole story we've gone over it so many times but i think it's interesting that the judges admitted that he was acting politically but you have to put the that part of the treaty or the act doesn't apply and also that he we did not getting him for war crime the the us is charged him with something else so they're not even denying that there were war crimes there i found that interesting i don't know if anybody wants to weigh in on that you can i um coming on back and say that um there's an interesting non sequitur as well in the arguments because what they state is that he's being he's only being charged with those publications which contain the name of informants he is not being charged with any of the publications which exposed criminal wrongdoing by the united states and the idea you can remove a sort of holistic view of you know the generality of of what was being published and what it exposed and and pick out little elements of that and saying there the bits is being charged with that's one thing but the second thing is it's a complete non sequitur because the argument only works if none of the none of the uh documents which named names contained evidence of criminality they're talking as though those are two entirely separate things that the documents that named names contain no evidence of criminality and the evidence of criminality is all in the documents that didn't name names was in fact that's not true at all there's plenty of evidence of criminality in the documents that named names so they that they've made this completely false distinction between between the two sets of documents well i'm only one set of documents anyway but they're they're claiming that there's no criminality in the documents that name names i i think the court has another false distinction also between this idea of political opinion and political offense i mean the court acknowledges is an overlap as it says but you're we're parsing we have new ones here and the i think what parliament did was it got rid of the um political offense provision because political opinions is broader and embraces more activity i don't think they meant to say it's one versus the other and um this distinction i mean the reason why it is persecuted for opinion is because that opinion is offending in some fashion so there's really no real way to justify distinguishing between these two so in terms of what craig was saying about you know there's really no distinction there i think there's another area in which the court's looking at a real fiction this notion that there's somehow a difference between opinion and offense political opinion and political offense um and you know it's interesting i think they would they didn't prosecute any newspaper they're prosecuting julian because he was so effective in drawing attention to these things uh to that criminality craig as you're putting it and i think that's where it's a political prosecution and i i'm very glad that they they pushed on this um you know in in the final argument recently because it wasn't pressed earlier that much and clearly julian's the lightning rod that annoys as chris hedges said uh the government the the intelligence community they're going after julian because he represents something and uh they're not going after new york times or any of the others have published it so i i i you know it seems to me that it is a political prosecution one way or the other and this distinction between offenses and opinions is very narrow and shouldn't even be existing don't forget bruce of new york times is very useful to the cia and the other intelligence community they're constantly leaking their own stuff to the new york times so i don't think they want to alienate the new york times uh well they never did you know they never wanted to prosecute them but the first place in the implanting on papers case but julian is uh principled about this and he uh he's not going to help the cia like the new york times does again just to add to bruce's point as well the obviously assange wasn't the first to publish those names either i mean we can go over it again but i found it really infuriating reading the judgment the way that the the judges basically stated as fact they implied heavily that he was the only one and that's why he was being prosecuted etc so right very good point Elizabeth he was not the only one he was not the first one as we know john uh young from cryptom.com he asked the department justice to indict him because he published the exact same materials before julian did and he didn't redact any of the names any of them if i recall and they didn't go after him so that's a good point yeah by the way that brings up selected prosecution and uh mm-hmm you know why just one and not the others sorry craig i didn't mean to cut it off no that's okay but there's another interesting point that struck me in the judgment where they talk of where they're relating what what events happened um not what events allegedly happened they're not saying these are allegations they're saying this is what happened and this is why the charges are legitimate and they state that julian assange um in a chat log i'm not sure whether chat log is is a correct description but that's the description they were in a chat log with chelsea manning exchanged messages blah blah blah but they say he did that and not that he was alleged to do that um and as far as i'm aware it has never been admitted that it was julian assange on the end of the chat log and i i understand there's several possibilities within wickerleaks as to to who it might have been even if it's admitted it was wickerleaks um they um uh but they they state as fact things which have not been proven as fact in a in the court of law and which are disputed by the defense and that that struck me as very strange yeah chelsea manning has never said and at the end of frank was as far as i know that was the name right we don't know that and that's one of things to be proven if there's a trial but i would defend the court at this point though because the purposes of extradition they have to assume these things happened because they're charged so i think that's why the court speaks that way i i don't think the court is speaking that way to make a pre-judgment i think they have to they have to accept that these things happened and they're being chargeable charged uh i think they have to do that in extradition so i i would say they're probably not prejudging the facts they just have no choice they have to assume those facts are true for this purpose it's a bit of a fiction but it does look like they're prejudging though i have to agree with frank but i think that's a legalistic reason why they're doing that well if there's anything anyone else would like to add this is the time to do it appreciate you all i wish i was there in the courtroom with you all uh sorry you wish you were i didn't realize that uh it must have been amazing to see it was an extraordinary uh thing to be inside there um and to witness i think uh craig you said uh somewhere else that another webcast that you had a kind of grudging respect for james louis who was the prosecutor in the extradition phase in the first lower court and do you want to think they missed him being there and why wasn't he there do you have any idea no i found that um very strange that he because the courts go out of their way to schedule um hearings so that you know important the the lead qc's can be there uh they very seldom um hold a hearing on a date which one of the lead qc's can't can't can't make and the fact that they didn't then put up another another top lawyer to replace him but but just led with the second as such a key hearing um seemed to me um uh very very peculiar i i mean really quite strange yeah i i quite you know it's it's very hard for us who are activists to understand that you have lawyers who do their job and and they could equally well be on the on the other side i mean mark summers who seemed so very very who was so very passionate in his in his arguments he acts for the government in extradition cases as well uh you know so that um uh that profession is peculiar to those of us who are who are activists and understanding that is sometimes emotionally is sometimes a little hard for us to the process but i i thought with james louis i could see that i could see he was he was actually a perfectly decent person uh doing an unpleasant job if you like uh and i i thought he actually did it extremely well you can tell he's a very very good very proficient um lawyer it's a unique feature of the british system where the lawyers can be on opposite sides every every day and and and be a prosecutor one day a defense another can't happen in the u.s it's illegal we don't we don't allow it uh if you're a defense lawyer or a prosecutor you can shift roles but you can't alternate every day you know you do one or the other in your career at a given time otherwise we call a conflict but in britain you know it happens all the time you mean the same chambers and be against each other and it happens all the time it's it's something americans have trouble figuring out as well so it's not just people in the uk a lot of people here can't get that either in a way it makes their system better because you know there's a certain ethic in arguing a case for its own sake and not being committed to a a cause as a lawyer krega i was wondering if i could ask you one last question because you pretty seem to have a very good knowledge of the difference between the act and the treaty the espionage the extradition act of the extradition treaty uh apparently it talks about the act talks about returning someone to the requesting country and espionage is not being returned and the the act says that it applies to uk citizens and he's not a uk citizen so shouldn't the international treaty prevail instead this comes from kathie vogan our producer who wrote me this question um the the extradition act i think talks of returning someone to the country because of course normally they're being extradited for a crime which has occurred in that country um whereas here you're sending someone to be extradited under a claim of universal jurisdiction uh which is a different thing i i must confess i i haven't read and the uk extradition act definitely applies to non-uk citizens um so that that's um that that's for sure the um i haven't read the the point on returning i haven't looked at the language of it that that that but i haven't looked that point hasn't struck me i but that would be why because normally you are returning someone to where the crime was committed in in in in in in the next tradition um the the act the treaty depends on the act if you see what i mean but the treaty is an enabling act which then is an enabling sorry the act is an enabling act which enables the government then to enter into treaties to to put it into force um which again makes the argument that there's a conflict between the two all the more strange particularly as the act was passed in 2003 and the treaty in 2007 and would have been drafted by exactly the same lawyers physically the same people would have drafted the two things so the idea that the as Bruce was saying the idea that the reference to political opinion in the act is it means something substantially different to political offence uh in the treaty when it's the same lawyers who would have done it and passed it and not noticed they were drafting two totally incompatible documents is a is a nonsense you know having and um i used to work in the government and i know and i've actually or on on completely different subjects but i've actually been responsible for drafting and signing off treaties and the uh and you have a a clearance procedure which makes it impossible to enter into a treaty which is incompatible with existing legislation uh it would be spotted but they're a uh they're very strong um systems in in in place where you have to circulate any treaty to countless lawyers and countless government departments for them to check its compatibility with existing legislation so the the argument that the treaty of 2007 was incompatible with the uh extradition act of 2003 and therefore uh its provisions do not apply where they conflict is it's just a total fiction it's a complete fiction and not even a good fiction it's just obviously nonsense thank you for that craig i think with that we might uh call it a night we want to thank craig murray wherever he is for coming on our show to just bring his expertise to this issue to bruce affron today where greece greece yeah okay sounds all but warm and then it is here in london where it was freezing and raining all day bruce affron is on a sunny looks like very sunny princeton new jersey uh where chris hedges is also coming from and of course elizabeth is in fadeville arkansas or kathy vogan is running the whole thing behind the scenes from sydney australia and this is joe lawyer for cn live saying goodbye and thanks for joining us and we'll be back to discuss this issue some more particularly after the 16th of april which is a deadline for the u.s to see whether they're actually going to be giving these assurances or not so again talk to you then bye bye if you are a consumer of independent news in the first place you should be going to is conservative news and please do try to support them when you can it doesn't have its articles behind a paywall it's free for everyone it's one of the best news sites out there and it's been in the business of independent journalism and adversarial independent journalism for over two decades i hope that with the public's continuing support of consortium news it will continue for a very long time to come thank you so much