The Duran Podcast - Assange appeal, British court seeks U.S. assurances

Episode Date: March 31, 2024

Assange appeal, British court seeks U.S. assurances

All right, Alexander, we had a ruling in the Assange case. On the surface, it looks like it's a positive for Assange, but maybe it's not a positive for Assange. What's your take on this ruling? Is it a positive? Is it not a positive, or is it a mixed bag? What are your thoughts? I'm very, very uneasy about this ruling.

Now, if you go back to the hearing itself, we did a video directly afterwards. I said that this is the best conducted hearing up to now. That had happened in any of the cases, any part of any of the cases involving Assange that has taken place in London. The judges were behaving like I expect judges to behave. they were asking the right kind of questions. They were skeptical about some of the arguments they were getting from the American side. They seemed to think that there was issues that needed to be looked at on appeal. I said that the pointers were that they would grant Assange leave to appeal,

and it's leave to appeal from the decision by Judge Baritzer at the Westminster Magist. magistrates court, Judge Beretsa said that he could be extradited to the United States, that the Americans had made out a case and the British authorities had made out a case that justified legally his extradition to the United States. And I said that, I've always said that, I thought that decision was wrong. And it looked to me as if the judges at this latest hearing might think that the case the decision of Judge Berica

was wrong and would grant leave to appeal now that is what they've done they've granted leave to appeal they've said that Assange has an arguable case on three out of nine grounds of appeal and they are

the important ones but having done that they've then gone back and what they've given with one hand they seem to be prepared to take away with another, because having said that he's got an arguable case, having even floated the possibility that if he goes to the United States, he might conceivably face the death penalty there, they seem to have implicitly accepted that that possibility exists. They've now come around and said,

well, even though we think he's got an arguable case on appeal, even though we're prepared to grant him leave to appeal. We're going to defer granting him leave to appeal until the United States is able to come forward and offer assurances. And if the United States can offer us assurances that he will not be subjected to the death penalty if he sent to the United States, he will be tried with the same rights

that an American citizen would have if he were tried in the United States and he will be able to rely upon all the First Amendment Act protections, which American citizens unequivocally have, well then we probably won't grant him to appeal after all. Now, I find that last very disturbing indeed. It makes me really concerned about this, because firstly, the Americans can provide assurances,

but how does the British court enforce them? They can give categorical absolute promises that they will not, for example, apply the death penalty. And if Assange goes to the United States and the death penalties apply to him, what does the British court do in that case? And if we talk about the other things, well, given that he claims

that he's a journalist, I cannot see how there is any way a legal case in the United States that the First Amendment protections don't apply to him. And seeking assurances on both those questions, the fact that he would be able to rely on the protections, the same protections as an American citizen would, and the fact that he would be entitled to rely on First Amendment the First Amendment protections as well. It seems to me that the United States can come forward and say, yes, he can. And they can say that. But of course, again, if he comes to the United States,

they can change their position on either of these things. There's no enforcement. And even if they actually honor their promises here, still doesn't follow that he's going to get a fair trial in the United States given all that has happened up to now.

So I'm very, very uneasy about this. I frankly dislike this whole business of assurances. We've discussed this with Robert Barnes and he said, you know, the United States regularly gives assurances in extradition cases

which it doesn't necessarily honour and that's happened several times. On consortium use, I attended a program with another American lawyer who deals with these kind of cases. He said exactly the same thing. And yet here we have the British Court coming along again and talking about assurances. So I am very uneasy about it.

I am deeply sceptical. And to be frank, it looks to me like the British High Court saying, well look on the one hand we can't really deny that the decision by judge beritzer at the westminster magistrates court was wrong because it was i mean it's impossible to argue otherwise so we are going to say that he is entitled to appeal that decision but we don't really want to do that we don't want this case to continue in britain we don't want him to go to a full of peace in London for the High Court. We don't want him to go beyond that if he loses that appeal to the British Supreme Court. What we want,

what we're trying to arrange is for the United States to come up with some kind of promises that we can rely upon or say we rely upon so that we can bundle him off to the United States and be rid of him in that way.

That is how it looks to me. The decision that came out the other day for Assange. If I understand it correctly, it allows Assange to appeal in the UK. Is that correct? That's right. Yeah. Yes. So is that not a good thing?

I mean... Well, it should be. On the surface, does it not give him a chance to defendants? It does. I mean, it should be. But why then talk about assurances? Bear in mind that the United States, if it wanted to give assurances at the appeal hearing,

could do so. There's nothing to prevent them. They could have come along at the appeal hearing and said, look, we accept that there are problems with Baritz's decision, but nonetheless, despite the mistakes that she made, we're prepared to give concrete categorical assurances that the concerns that you have, the British High Court, we are going to give assurances that those concerns are going to be groundless. They could have done that on their own. But what has happened is that the High Court is prompting them to give those assurances. It's actually asking them to give assurances. It's advising them to give assurances. Now, I'm not saying I've never seen situations where the High Court in effect gives advice to a party in the case, but I've never seen it done in this way in a

case where the stakes are so high. And this makes me very uneasy. I mean, the British government, rather the British court, the high court, could have said, arguable case, leave to appeal, goes forward to full appeal, and they could have left it at that. And if the Americans had then decided that they were going to give assurances, that would have been a matter for them. Instead, the British court is itself seeking them. And that makes me very uneasy indeed. Doesn't that give power to the United States? I mean, I'm still trying to wrap my head around this.

How is, as a British court, how do you give this power? How do you see this power to the US government? Well, I mean, I don't know. It strongly suggests to me. Am I missing something? You're not missing anything. I mean, it strongly seems to me, and this is why I said it looks to me, as if they don't really want to proceed with the appeal, they want the, you know, they want to be in a position where they just accept assurances and say that in light of that, you know, there's no need to proceed with the appeal.

So all of these other issues that are there, they can be better sorted out in the United States, you know, the breach of confidentiality, all that kind of thing. There are lots of other things that came up in the case. Anyway, they want to be able to do that. And for me, when a party seeks assurances from another side, that means that they're looking to accept assurances. They want to accept the assurances. Otherwise, they wouldn't be asking for them. This party is the High Court.

And again, that is... to put it mildly unusual, or so it seems to me, and it has me worried. Final question, how does this work now? What happens next? Does this go to an appeals court, or does the U.S. just assure the high court, look, you want assurances? We give you our assurances, so let's not even proceed to an appeal. I mean, what's the next step? No, I think it looks to me, it looks to me, I mean, the way it's going to happen is that the United States has been given relatively short. I mean that I will say they're not giving the Americans an

indefinite amount of time to come up with assurances. They're giving them until in the middle of April to come up with the assurances. If the assurances are provided, then as I understand it, there will be a hearing on the 20th of May to decide whether or not the assurances should be accepted. And that at least

is proper, that there will actually be a hearing at which Assange's lawyers can push back against the assurances. And then at this hearing on the 20th of May, the court will decide whether or not to accept the assurances. And if it decides that it won't, then it will decide, it's already said it will decide to grant Assange leave to appeal. Of course, if the United States fails to meet that April deadline,

they could just decide to grant leave to appeal without a further hearing, or if the assurances are obviously unsatisfactory, they might decide to cancel the hearing on the 20th of May and go forward to leave to appeal. I have to say, what I think is more likely to happen, is that the Americans probably, this is the game they've always played, will come back, they say they haven't been given enough time to prepare the assurances. They need at least another two weeks. So everything then gets moved back.

We get that postponement. The assurances eventually come. There is a future hearing. The court accepts the assurances. The case ends. That's the most likely absolute. That's right. That barring intervention by the European Court of Human Rights,

which I have to say I personally think is unlikely in this case, for many reasons, which I'm not going to discuss in this programme. But that, I have to say, to me, looks like the most plausible scenario. I suspect that, again, there's been a lot of, you know, there's been a lot of towing and frowing and discussion. The Americans have probably, the American's lawyers, the US government's lawyers probably sensed at the last hearing

that the court was going to grant leave. to appeal. There's probably been all kinds of communications between the US government and the British authorities and between the British authorities on the High Court. And one way or the other, we're now back into Assurances territory. As I said, I am very uneasy about this decision. On the face of it, as you said, it looks good. When you actually look at it closely, it doesn't look to me at all good. Real quick, given the fact that he's an Australian citizen, Can't Australia intervene? Well, you know, there are lots and lots of rumours

and stories circulating. I believe there was even an article in the Wall Street Journal. I haven't seen it. Which says that somebody is floating the idea of a plea bargain. This is one where Assange pleads guilty to charge of misconduct. handling classified documents. This is a misdemeanor. He's then immediately released because as a result of the time he's already spent in prison. He's spent his sentence and he becomes a free man.

Now, on the face of it, that might be a good outcome for Assange and it might be the outcome that his lawyers might advise him to accept if the kind of things that I am worried about in this appeal process actually starts to happen. But it still means that he's convicted of something and it still means that mishandling classified documents will restrict both what he and future journalists do because journalists often come into contact with classified documents

and mishandling classified documents could be something that is held over journalists in future. So I would be very uneasy about that outcome also. At a humanitarian level, for Assange personally, it might be the right thing. It would set him free, it would enable him to go back to his family. but for the future, for WikiLeaks, and for the future of journalism, I have to say it would be a bad outcome. All right, we will end it there.

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