But we're joined now by Francis Boyle. Francis is a professor of
International Law at the University of Illinois
We're speaking to him from his office there in Champaign, Illinois.
He's been an advisor to the Palestine Liberation Organisation
and he's also had experience, amongst many other things, he's had experience
with an extradition request by the United States to Great Britain, and that's why we're welcoming Francis in tonight to talk about that
Welcome Francis. Thank you for joining the online vigil for Julian Assange.
Well thank you very much for having me on Joe.
I simply commend you and
Consortium News for staying on top of
Assange's case. This is
critical for the Freedom of Speech, Freedom of the Press,
journalists all over the world.
I thank you for that Francis. It certainly is. You're absolutely right
So tell us about your experiences
working on a case of an extradition request the United States made to Great Britain.
Well, first off I do have to say I am not
involved in Assange's case. I don't represent Assange.
I'm only speaking for myself here in my
personal capacity as a Professor of International Law, but yes, I was involved
spearheaded the campaigns
to defeat the US-UK
Supplementary Extradition Treaty of 1986
by Maggie Thatcher. And I won't go through all that here
except that we castrated that treaty and
then second after 9/11 2001
The British government re-tendered the original Maggie Thatcher
extradition treaty in
2006 to the Bush Administration
who accepted it. So working with my brother?
who's a lawyer in Chicago
We organized
every Irish-American group
in the country as well as the ACLU
to fight back
Against his treaty and I won't go through all that work here
Because this can be found and documented in my book United Ireland: Human Rights & Int. Law
And I wrote it up especially for lawyers to use
in order to defeat
here in the United States
Requests for extradition by the British government
but especially of Irish
Now to make a long story short we did fight back against the 2006 Supplementary Extradition Treaty
We were unable to castrate it.
We were sold out by Irish American officials
Like Joe Biden and others
In the Senate, but we did get to crawl back
basic human rights, civil rights, civil liberties protections
for Irish and indeed for all people living in the United States.
Regretfully and for whatever reason the same thing was not done in Britain.
I guess because the prime minister at that time was Tony Blair.
He was said to be the
Human Rights prime minister, which as we all know is a joke and fraud.
He controlled Parliament and Parliament enacted
domestic implementing legislation for the 2006 extradition treaty
Exactly the way the British government wrote it.
Which is completely totalitarian.
Under the terms of this treaty
In the event the United States government makes a
request for extradition for Assange it is going to be very difficult for
his lawyers in Britain
to prevent an extradition and
As a matter of fact, my guess is they will probably have to go
and appeal immediately to the European Court of Human Rights
To prevent his extradition.
But under the terms of the treaty itself
It's going to be very difficult and indeed
given the
practices under this treaty which I have followed because we were able to get
commitments in writing from the British
That they were not going to use this treaty
to go after
Irish liberation fighters from our war of national liberation against Britain going back to the
1916 Easter rebellion and so I have followed the
Extradition practices under this treaty. Basically the way it is set up
Here in the United States we've been able to get almost everyone we had asked for
under that extradition treaty though, I recently
sent to you the first major exception to that.
It might be of assistance
to Mr. Assange, but that's it. By comparison
When he and British didn't pointed out that
yeah, well, this is unfair that here that when
a request is made by Britain to here in the United States
under the crawl back protections we got for a everyone here
It's not automatic.
whereas when the United States makes requests to Britain
Up until this latest exception I just sent you
it has been almost automatic
Indeed it's basically a political process under the
treaty if I remember correctly and again understand I'm just going here off the top of my head.
I have not researched this issue with respect to Mr. Assange I'm not involved in this case.
but the decision to extradite is purely political made by the Home Secretary.
Well, we know for a fact that Theresa May's Home Secretary will just turn him over immediately.as soon as she can
to the United States government once the extradition request is filed.
Here in the United States they try to do the same thing to us by saying it would be automatically determined by the
US Secretary of State. We fought back to get that put into
The control of the United States Federal District Judge
where it had been under the
previous treaty that we castrated.
So that's again what is the danger here
facing Assange the moment he steps out of that embassy.
The British lawyers will have to insist to
that Assange not face the death penalty here in the United States.
There'll have to be written guarantees from the United States government to that effect.
the British lawyers will have to insist and get written guarantees from the United States government that
he would not being prosecuted
in the kangaroo courts in Gitmo, which of course they have tried to do
but even if the British government were to give these guarantees
if Assange got here to the United States
and was actually tried [inaudible] court
he would be
subjected to a clear cut kangaroo court proceeding, found guilty, sentenced to life in prison and
probably stuck away in one of these 'supermax' prisons that are designed to
drive the prisoners insane and indeed there's documentation by human rights groups that that's exactly what these
supermax prisons do. So it is a very dangerous
situation for Mr. Assange. I know his legal team there in Britain is first rate.
I don't know all of them.
but the lead counsel Garzón
is the very distinguished Spanish
Investigating Magistrate and they had better have their papers already drafted in advance and if necessary
go ... prepared to go
all the way up immediately to the European Court of Human Rights to get a
stay of extradition which they can do. The European Court of Human Rights will give
provisional measures of protection. The other danger here is this however that
Even if that were to be done the British government could also decide to deport
Assange back to Australia since he is not a British citizen. He's an Australian citizen.
and maybe the Americans could try to get him under the
US Australian Extradition Treaty I haven't read that Treaty. I don't know
what if anything it might say?
But if that were to happen that he would be outside the jurisdiction of the European Court of Human Rights
which Britain is still subject to now
prior to Brexit indeed after Brexit it seems they'll still be
subjected to the European Court of Human Rights.
So there we are today Joe.
He's, in my opinion, in very serious physical, mental danger
even putting aside his de facto incarceration there in the Ecuadorean embassy.
[JL]: Let me ask you a couple of questions about the European Court of Human Rights.
You said that ...are you saying that it is a Superior Court to the highest court in Britain, that it can overrule even
a judgement of the highest court in Britain. [FB]: That is correct.
As I said, I just sent you the first case ever where
now it's called by the Supreme Court in Britain
ruled against an extradition to the United States. That was a major breakthrough.
Assange and his lawyers could very well use that but this has been so highly politicized in Britain too
courts pay attention to what the government's telling them to do
so they very well could lose in the
Supreme Court of Britain. I want to make it clear
I'm not licensed to practice law in England. I can't predict, you know, what the British courts are going to do.
one way or the other. But yes, they can [inaudible]
... need to prepare immediately to take this case to the European Court of Human Rights
get provisional measures of protection to prevent
his extradition to the United States
while the case on the merits
[inaudible] British measures of protection would be a like a temporary restraining order
It does not resolve the issue on the merits.
Now on the merits of the case sure
there are large numbers of arguments that can be made in the European Court of Human Rights
against Assange's extradition that this would violate his
basic human rights under a variety of provisions of the European Convention. Now if you look at the
Memorandum I submitted against this treaty to the Senate for [inaudible]
That was unrebutted by any expert on the side of the British.
I outlined all the objections to the treaty for
violating the International Covenant on Civil and Political Rights
to which both the United States and Britain are parties to
The United States is not subject to the jurisdiction of European Court of Human Rights
So I certainly was not going to argue that to the United States Senate
but the protections in the
International Covenant on Civil and Political Rights are
pretty much the same protections as
found in the European Convention on Human Rights and I go through article by article, human right by human right there
as a road map for all the rights, his rights that would be violated.
And of course, you know, you have officials in the United States government. They've threatened to kill him.
so tried treason or something like that. Well, he's not a citizen of the United States.
He owes no loyalty to the United States. But again, this is really for his
British lawyers to decide how best to proceed here and then they also have to consider this
deportation to Australia escaping the jurisdiction of European Court and
then you'd be in Australia, and you know right now they have a right-wing government there too so who knows what would happen in Australia.
[JL]: Yeah We see here clearly the relations between the U.S. and
and two of their five eyes partners Britain and Australia, especially when you describe how it doesn't work
In the same way both ways in other words when the U.S.
asks for somebody they almost always get him and when Britain asks for someone they don't necessarily
get who they want. The Lorri Love case I think is the one you ...
[FB]:But again I do want to point out we almost always got everyone we've asked for
even the Brits tried to sell this as anti- terrorism and the Bush people did.
But what happened is we used it to go after
all their of City of London fraudsters
And we got all them not
Even though we said originally we weren't interested in these types of people, we were just into terrorists.
I have no brief for City of London fraudsters. Banksters or
Financial swindlers or anything like that. We got all these people and
The first exception is what I sent you and that's it.
[JL]: But you did mention one case. Where the UK?
denied an extradition request and that was for, I believe, Laurie Love who was a hacker who was wanted in the U.S.
So that was a great victory
But the Assange case of course is far different than that because of all the implications of the many many government secrets
He's revealed and many many very angry
powerful people around the world who want to get him.
[FB]:Right. Let me elaborate. Yes. That's an important precedent
But as you correctly pointed out the political dimensions of this problem do not compare
You know as far as the United States government is concerned
Assange and Snowden are
public enemies number one and two and
you know a hacker is a hacker
regretfully one way or the other but the political implications there are almost nil
So this, you know, the political pressure here
I suspect on the British Supreme Court
Would be you know, authorize the extradition of Assange.
[JL]: I'm a complete layman here so forgive me if this is an obvious question but
does someone have to be actually in custody in order to be extradited to another country what I'm saying is if he's arrested on this
bail skipping charge it's unlikely he can get more than a few months for that
That's really a minor charge. Could his lawyers
wait it out and that he's freed from that and could not be then extradited or would the British authorities
Take that into consideration when sentencing him if indeed, he's convicted? He's not even been charged yet. But if he's convicted for bail skipping.
[FB]: The moment they have custody of him
the U.S. can to file that extradition charge and that will be that
and they'll just waive any prosecution for bail skipping.
Right now it seems to me
Assange's best strategy, again I defer to his British lawyers
is to wait it out in that Ecuadorean embassy.
hopefully, the Tory government will fall
Corbyn will come to power
A Labour government, there will be a Labour Home Secretary and then a campaign
Could be brought to bear
on the Labour Home Secretary
not to extradite Assange.
That might be the best strategy.
[JL]: So you mean when the U.S. files an extradition request he could be held in the UK under
those conditions under a U.S. prosecution he could be held in the UK pending extradition
[FB]: That's right. The moment he
walks out of that embassy, that's correct, and he is actually physically taken into custody by
a British law enforcement authority. Yes.
[JL]: So he could stay there until the this is resolved one way or the other the extradition request
now if they go to Europe, you know, I think that thirty European MPs
last week filed a petition or a statement in support of Julian Assange
So given that there's that's not a lot thirty
But it's more than we have in the UK and certainly in here in the US Congress
is the political atmosphere in Europe sufficiently different in your opinion to give him a chance to win in the European Court Human Rights.
[FB]: You know this is something I
discuss with my students in my international human rights of law course and
today I think you'd get a fairer shot certainly in the European Court of Human Rights
than you would either in the United States Supreme Court or the U.K. Supreme Court.
It wasn't always that way, but I believe it is today
and even if it would first perhaps start on with a panel and
Then they could move for a grand chamber of all the judges
And and at that point certainly when it gets into the European Court of Human Rights. I think you're going to need a
grassroots public relations campaign
not only in the UK, but also
In the EU and in the European Parliament, yeah
in support of Assange because he has been so thoroughly vilified
that Public opinion needs to be educated and turned around
Including the judges. Yes that has to be done, I mean, all judges everywhere in these supreme courts
read the pages of the newspapers and pay attention to public opinion polls.
But right now I believe
he's going to get a much fairer shot in the European Court of Human Rights than he would in the
UK Supreme Court
And certainly not in the US Supreme Court where you know you have five federal society
judges on there the 'Five Horsemen of the Apocalypse' so,
Obviously you have to appeal there, but you're not going to get anywhere. They couldn't get diddly squat about
[inaudible]
let alone Assange's Human Rights.
[JL]: Frances I just want to ask you one more thing before we let you go
I don't know how much expertise you may have in the Espionage Act
But as we probably can assume he's been he has been charged. The US government has admitted that they're not releasing the details yet
That's tied up in a court here in Alexandria, Virginia where I am
so we may or may not get to see what the details of the
Indictment or criminal complaint.
But it's been assumed that it's under the Espionage Act
and my reading of the Act is from the original 1917 Act and the Wilson administration
It made clear that only acts committed on US
Territory or the high seas could be prosecuted that unfortunate changed in 1961 in an amendment that made it global
So this could be anywhere in the world because Assange of course committed acts of publishing outside the United States
And there's also something in the original Act
which says that even mere possession and/or dissemination of classified material is
actionable can be prosecuted. Of course. Julian has never been accused or of stealing the documents himself, but only of
Accepting them and publishing them
but the Espionage Act has never been used against a journalist for political reasons because it would, it appears to
conflict with the sentiment at least of the First Amendment
There were some of course after the Pentagon Papers case the Nixon administration could have gone after
Both the Post, The Times, Senator Mike Ravel who published it in a book. They could not do prior restraint
That's what the Supreme Court decided but after publication
They could have prosecuted but they didn't because politically it would not be the right image for
The administration to go after journalists like that and there have been similar cases like that. So I want to know
am I correct in saying that he can be legally charged under the Espionage Act as
abominable as that Act is the way it's written and
For the political reasons have stopped him but the Trump administration being so anti media
Maybe they would actually do this which the Nixon administration wouldn't do
[FB]: Well, again I, this is speculation what they're going to do
I don't know if they would request his extradition for prosecution under the Espionage Act
for the reasons you have given
and because it then would open up this whole
can of worms to their respect so they might request his extradition
for common ordinary garden-variety crimes
theft misuse of things of this nature and
He in theory then could be
extradited for that type of prosecution
however If I remember correctly under this treaty the British government could waive
the requirement of specialty and the requirement of specialty is that
You can only be prosecuted for the crime for which you are extradited.
So they could get him over here
under a variety of common ordinary
Federal crimes that I'm sure they could concoct without any problem
Uh, and then once he's over here the British government could waive speciality
and then in theory prosecute the violation of the
Espionage Act now
I haven't studied the Espionage Act in a long time because I havn't been involved in cases under but as we all know
It was originally intended to do with spying
during the First World War
Spies conducting themselves
During war time to get secrets. Uh
Well, okay fine. We can agree on that. The First World War fine. The Second World War
It was never intended to go after journalists.
practicing journalism and yet there has been a history of
Administrations using and perverting the
Espionage Act to go after journalists and
to try to use them as a cudgel
over their head and
You know given the Trump administration
That very well might might be what tey decide to do. They would want to set a precedent
to use against
investigative journalists, first-rate journalists
whistleblowers and things of that nature
So we cannot rule this out at all Joe.
but if we get this issue in the United States courts
I'm afraid given the current Supreme Court
the five Federal Society Horsemen of the Apocalypse
We'll probably lose. So there it is
what can I say so I agree with what you're saying, but actually winning these issues in the United States Court will be,
Given the right wing nature of US courts these days
It's going to be very difficult to make progress
with those types of arguments.
[JL]: You know, the Act makes it clear that the death penalty
Penalty can only be imposed in the time of war
So I could see that stretching out that the Afghan war cables and the Iraq
Collateral damage videos was a time of war and that was actually exposing war crimes by the US.
That's correct. And so the British lawyers will have to demand that
The British government get a guarantee in writing
That Assange will not be prosecuted
for
What will will not be sentenced to death. It's that simple that is even if he is convicted
They'll have to get that guarantee and indeed. If not, they can go to the
European Court of Human Rights and get that guarantee
Get the European Court to order
the British government to get that guarantee
yes, but
indeed this treaty so bad that
If you read it that someone can be extradited to face the death penalty
But could not be executed
So, no this this was done deliberately and Imaliciously, Joe.
So they could be over here, you know sitting on death row for the rest of their lives
Right, although even then the European Court of Human Rights
There's a very famous case Soaring[?] saying the death row phenomenon constitutes cruel inhuman degrading treat
So they they could stop that too at the European Court of Human Rights
So these are you know large numbers of issues.
I want to clear I have not
Investigated any of them with respect to Mr. Assange because I am not
working on his case. A good friend of mine Mike Raitner did represent
Assange in this country, and I you know, I told Mike I'd be happy to work on this case if he wanted me to
Unfortunately, Mike is going on to his reward
But I told his successors at the Center for Constitutional Rights. So it's a highly
complicated, highly charged, highly politicized
situation but my best best advice is
keep him out of the United States at all costs and
Tie this thing up over there
at the European Court of Human Rights at least until the
Corbyn administration gets in there and then launch a public relations campaign
with Corbyn and Labour Party
on behalf of Assange, right
Thank you. Very, very much. Francis for spending some time with us tonight.
Well, thank you. I'm sorry. I can't be more enlightening. I'm just sort of giving you off the top of my head
And well, we'll have to see what happens.
I found a very enlightening Thank You Francis.
Thanks, bye-bye now
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