“Extraneous considerations A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that— (a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his… political opinions, or (b) if extradited he might be prejudiced at his trial… by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
“Human rights (1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of theHuman Rights Act 1998 (c. 42). (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”
“104 Court’s powers on appeal under section 103 (1) On an appeal under section 103 the High Court may- (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that- (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that- (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. (5) If the court allows the appeal it must- (a) order the person’s discharge; (b) quash the order for his extradition. …” (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. (a) order the person’s discharge; (b) quash the order for his extradition. …”
“25. The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the applicant. The words “ought to have decided a question differently” (our italics) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. … 26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. …The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”
“Court’s powers on appeal under section 108 (1) On an appeal under section 108 the High Court may— (a) allow the appeal; (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that— (a) the Secretary of State ought to have decided a question before him differently; (b) if he had decided the question in the way he ought to have done, he would not have ordered the person’s extradition. (4) The conditions are that— (a) an issue is raised that was not raised when the case was being considered by the Secretary of State or information is available that was not available at that time; (b) the issue or information would have resulted in the Secretary of State deciding a question before him differently; (c) if he had decided the question in that way, he would not have ordered the person’s extradition. (5) If the court allows the appeal it must— (a) order the person’s discharge; (b) quash the order for his extradition.” (a) allow the appeal; (b) dismiss the appeal. (a) the Secretary of State ought to have decided a question before him differently; (b) if he had decided the question in the way he ought to have done, he would not have ordered the person’s extradition. (a) an issue is raised that was not raised when the case was being considered by the Secretary of State or information is available that was not available at that time; (b) the issue or information would have resulted in the Secretary of State deciding a question before him differently; (c) if he had decided the question in that way, he would not have ordered the person’s extradition. (a) order the person’s discharge; (b) quash the order for his extradition.”
“(b) Whoever, for the purpose [of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation], copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any… document… connected with the national defense; or (c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document… of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document… relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or (e) Whoever having unauthorized possession of, access to, or control over any document… relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or … Shall be fined under this title or imprisoned not more than ten years, or both. (g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”
“The applicant submitted several diplomatic cables in which the US diplomatic missions in the respondent State, Germany and Spain had reported to the US Secretary of State about the applicant’s case and/or the alleged CIA flights and the investigations in Germany and Spain. These cables were released by WikiLeaks (described by the BBC on7 December 2010 as “a whistle-blowing website”) in 2010.”
“the applicant, handcuffed and blindfolded, was taken from the hotel and driven to Skopje Airport. Placed in a room, he was beaten severely by several disguised men dressed in black. He was stripped and sodomised with an object. He was placed in a nappy and dressed in a dark blue short-sleeved tracksuit. Shackled and hooded, and subjected to total sensory deprivation, the applicant was forcibly marched to a CIA aircraft (a Boeing 737 with the Tail No.N313P), which was surrounded by Macedonian security agents who formed a cordon around the plane. When on the plane, he was thrown to the floor, chained down and forcibly tranquillised. While in that position, the applicant was flown to Kabul (Afghanistan) via Baghdad.”
“(a) It is unprecedented in law. (b) It cuts clean across established principles of free speech. (c) To deal with that, the applicant anticipates a trial at which he, as a foreigner, can be denied reliance on the First Amendment. (d) Indeed, a trial outwith the protections of the US Constitution altogether, and (e) Is accompanied by exposure to a grossly disproportionate sentence.”
“Political and Military Offenses 1. Extradition shall not be granted if the offense for which extradition is requested is a political offense. … 3. …extradition shall not be granted if the competent authority of the Requested State determines that the request was politically motivated...”
“Subject to any restrictions imposed by primary legislation, the general rule is that the power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the courts... Lord Coleridge CJ said that the Queen acts throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority: Rustomjee v The Queen(1876) 2 QBD 69 , 74. This principle rests on the so-called dualist theory, which is based on the proposition that international law and domestic law operate in independent spheres. The prerogative power to make treaties depends on two related propositions. The first is that treaties between sovereign states have effect in international law and are not governed by the domestic law of any state. As Lord Kingsdown expressed it in Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moo PC 22, 75, treaties are governed by other laws than those which municipal courts administer. The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.”
“Mr Jones was unable to show any previous authority in the United Kingdom which suggested that the 1972 Treaty, standing alone, created personal rights enforceable by its individual citizens. The treaty specified the circumstances in which the governments of the United Kingdom and US agreed that extradition would, or would not, take place and they bound themselves to a series of pre-conditions which would govern the extradition process. Thereafter, the rights of citizens of the United Kingdom were governed by domestic legislative arrangements which ensured that the extradition process should be subject to judicial oversight, in an appropriate case, extending as far as the House of Lords in its capacity as the final appellate court. The treaty reflected the relationship agreed between the United Kingdom and the US for the purposes of extradition, rather than the municipal rights of United Kingdom citizens, enforceable against their own government. In brief, therefore their rights were provided and guaranteed, not by treaty, but by domestic legislation.”
“Decision not to prosecute Julian Assange in 2013 We now know that a decision was made under the Obama administration not to prosecute Julian Assange in 2013 on the very same evidence that was relied on to indict him in 2018. … … there was no prosecution under the Obama administration because it was still thought wrong to prosecute the media for either receiving or publishing state secrets from a government official…. Yet the principled and consistent stand taken under the Obama administration was reversed under the present Trump administration from early 2017 onwards. The reason for that lies primarily in the nature of Julian Assange’s disclosures to the world and the nature of his political opinions, which inevitably attracted the hostility of the Trump administration and the CIA.”
“No punishment without law 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
“The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.”
“252. I am satisfied that the flagrant denial threshold has not been reached in this case. This is primarily because Mr. Assange’s Article 7 rights are protected in America by the US Constitution and, in particular, by the Fifth Amendment. 253. The Fifth Amendment, inter alia, prohibits a person from being deprived of their liberty without due process of law (“due process clause”). It states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. 254. Pursuant to this constitutional protection, two related but distinct doctrines have been developed by US courts; (i) the doctrines of “vagueness”, which is directed at lack of sufficient clarity and precision in a statute; and (ii) the doctrine of “overbreadth” which invalidate statutes which “infringe on expression to a degree greater than justified by the legitimate governmental need” (see United States v. Morison, 844 F.2d 1057). The vagueness doctrine is premised on the principle that due process of law requires the government to provide potential defendants with fair warning that their conduct may be proscribed, and that vague statutes may encourage arbitrary and discriminatory enforcement (see US v Rosen). As the court in Morison (above) stated, “[i]t is sufficient... to satisfy requirements of ‘reasonable certainty’ that while the prohibitions of a statute may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.”
“it has been repeatedly stated that a statute which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”
“..in any event, it is settled beyond controversy that if one is not of the rare “entrapped” innocents but one to whom the statute clearly applies, irrespective of any claims of vagueness, he has no standing to challenge successfully the statute under which he is charged for vagueness. Parker v. Levy, supra,417 U.S. at 756. Finally, the statute must be read in its entirety and all vagueness may be corrected by judicial construction which narrows the sweep of the statute within the range of reasonable certainty.” 258. In relation to the claim of overbreadth, the court acknowledged that the doctrine is an exception to the “traditional” rules of practice not recognised outside the context of the First Amendment; however, it was a “strong medicine” to be applied. 259. The court ultimately rejected Mr. Morrison’s claims under both doctrines. It found the statute itself to be both constitutionally overbroad and vague, however considered that this was remedied by the trial judge limiting the scope of the term “information relating to the national defence” in its directions to the jury. The court concluded: “The notice requirement insures that speakers will not be stifled by the fear they might commit a violation of which they could not have known. The district court’s limiting instructions properly confine prosecution under the statute to disclosures of classified information potentially damaging to the military security of the United States. In this way the requirements of the vagueness and overbreadth doctrines restrain the possibility that the broad language of this statute would ever be used as a means of punishing mere criticism of incompetence and corruption in the government. Without undertaking the detailed examination of the government’s interest in secrecy that would be required for a traditional balancing analysis, the strictures of these limiting instructions confine prosecution to cases of serious consequence to our national security.” 260. The case demonstrates the approach a US court would take if these arguments were advanced by Mr. Assange. It shows that courts have long been alive to the issues of vagueness and overbreadth in relation to 18 U.S.C. §793 and have already interpreted it as subject to limitations which have confined its ambit. 261. It is difficult to see how Mr. Assange will be exposed to a real risk of suffering a violation of his Article 7 right in the US. A US court will make a principled determination of any vagueness and overbreadth in relation to the provisions of 18 U.S.C. §793 and the CFAA. It will take account of the ambit of the provisions themselves and any refinements to their interpretation from judicial rulings (for example which occurred in Morrison, above). If, on the basis of its analysis, it finds the language of the statute so broad or vague that it does not meet the standards of accessibility and foreseeability, it will find the provisions unconstitutional and therefore unenforceable. If need be any lower court rulings will be reviewed by the senior courts. 262. For this reason, there is no need for an extradition court to embark on the detailed discussion on accessibility and foreseeability invited by the defence. A US court is well equipped to interpret its own legislation and reach a conclusion that is compatible with Mr. Assange’s constitutional rights. Through this process, I am satisfied that his Article 7 rights will be fully protected. … 266. The defence has not discharged its burden to establish a real risk of a ‘flagrant denial’ of Mr. Assange’s Article 7 rights if he is extradited to face trial in America. “ “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. “it has been repeatedly stated that a statute which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”
“Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case… Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state… Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: … the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111: “The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state.” “The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state.”
“publishing leaked national security information was (and is) commonplace because it is conduct protected by entrenched principles of free speech, principles which are as familiar to the First Amendment as they are toArticle 10 ECHR ”
“…the protection afforded byart 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection ofart 10 of the Convention , is not confined to the contents of information which is collected and/or disseminated by journalistic means. That concept also embraces the lawfulness of the conduct of a journalist, and the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.”
“The Court further reiterates that all persons, including journalists, who exercise their freedom of expression undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see, for example, Handyside v United Kingdom (1979-80) 1 EHRR 37 at [49]). Thus, notwithstanding the vital role played by the press in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (see, for example, Bladet Tromsø and Stensaas v Norway(2000) 29 EHRR 125 at [65], and Monnat v Switzerland, no 73604/01 at [66].”
“…journalists who exercise their freedom of expression undertake “duties and responsibilities”… Article 10 does not guarantee a wholly unrestricted freedom of expression, even with respect to media coverage of matters of serious public concern. In particular, and notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence… In other words, a journalist cannot claim exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions…”
“Protection of freedom of expression in the workplace thus constitutes a consistent and well-established approach in the case-law of the Court, which has gradually identified a requirement of special protection that, subject to certain conditions, ought to be available to civil servants or employees who, in breach of the rules applicable to them, disclose confidential information obtained in their workplace. Thus, a body of case-law has been developed which protects “whistle-blowers”, although the Court has not specifically used this terminology.”
“The Court emphasises that in cases concerning situations in which employees claim the special protection to which whistle-blowers may be entitled after disclosing information to which they gained access in the workplace, notwithstanding the fact that they were under an obligation to observe secrecy or a duty of confidentiality, the public interest capable of serving as a justification for that disclosure cannot be assessed independently of the duty of confidentiality or of secrecy which has been breached. It also reiterates that, under Article 10 § 2 of the Convention, prevention of the disclosure of information received in confidence is one of the grounds expressly provided for permitting a restriction on the exercise of freedom of expression. In this connection, it is appropriate to note that many secrets are protected by law for the specific purpose of safeguarding the interests explicitly listed in that Article. This is the case with regard to national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, maintaining the authority and impartiality of the judiciary or the protection of the reputation or rights of others. The existence and content of such obligations usually reflect the scope and importance of the right or interest protected by the statutory duty of secrecy. It follows that the assessment of the public interest in the disclosure of information covered by a duty of secrecy must necessarily have regard to the interests that this duty is intended to protect. This is particularly so where the disclosure involves information concerning not only the employer’s activities but also those of third parties.”
“well over one hundred people were placed at risk from the disclosures and approximately fifty people sought and received assistance from the US. For some, the US assessed that it was necessary and advisable for them to flee their home countries and that they, their spouses and their families were assisted in moving to the US or to safe third countries. Some of the harm suffered was quantifiable, by reference to their loss of employment or their assets being frozen by the regimes from which they fled, and other harm was less easy to quantify. It is alleged that Mr. Assange was well-aware of the danger to these informants; examples of his comments from 2010 are included above. In addition, it is alleged that his disclosures harmed national defence by deterring informants willing to trust the government to keep their details safe in the future.”
“in stark contrast to Mr. Assange’s final, indiscriminate disclosure of all of the data, newspapers who had worked with him from both sides of the Atlantic condemned his decision. These traditional news media outlets contrasted their own careful editorial decisions not to publish these names, with what they describe as a “data dump” carried out by Mr Assange. The Guardian published the following report on2 September 2011 …: “WikiLeaks has published its full archive of 251,000 secret US diplomatic cables without redactions, potentially exposing thousands of individuals named in the documents to detention, harm or putting their lives in danger. The move has been strongly condemned by the five previous media partners, the Guardian, the New York Times, El Pais, Der Spiegel and Le Monde who have worked with WikiLeaks publishing carefully selected and redacted documents. …. We deplore the decision of WikiLeaks to publish the unredacted State Department cables which may put sources at risk, the organisations said in a joint statement… We cannot defend the needless publication of the complete data. Indeed, we are united in condemning it.” “WikiLeaks has published its full archive of 251,000 secret US diplomatic cables without redactions, potentially exposing thousands of individuals named in the documents to detention, harm or putting their lives in danger. The move has been strongly condemned by the five previous media partners, the Guardian, the New York Times, El Pais, Der Spiegel and Le Monde who have worked with WikiLeaks publishing carefully selected and redacted documents. …. We deplore the decision of WikiLeaks to publish the unredacted State Department cables which may put sources at risk, the organisations said in a joint statement… We cannot defend the needless publication of the complete data. Indeed, we are united in condemning it.”
“From the beginning, we agreed that in our articles and in any documents we published from the secret archive, we would excise material that could put lives at risk. Guided by reporters with extensive experience in the field, we redacted the names of ordinary citizens, local officials, activists, academics and others who had spoken to American soldiers or diplomats. We edited out any details that might reveal ongoing intelligence-gathering operations, military tactics or locations of material that could be used to fashion terrorist weapons… [The applicant] was angry that we declined to link our online coverage of the War Logs to the WikiLeaks Web site, a decision we made because we feared — rightly, as it turned out — that its trove would contain the names of low-level informants and make them Taliban targets…. As for the risks posed by these releases, they are real. WikiLeaks’s first data dump, the publication of the Afghanistan War Logs, included the names of scores of Afghans that The Times and other news organizations had carefully purged from our own coverage. Several news organizations, including ours, reported this dangerous lapse, and months later a Taliban spokesman claimed that Afghan insurgents had been perusing the WikiLeaks site and making a list. I anticipate, with dread, the day we learn that someone identified in those documents has been killed.”
“the prosecution may or may not make this argument before the court. If they do, it appears to relate to the application of the First Amendment rather than to the general application of the US Constitution; the argument may be limited to the application of the First Amendment only so far as it applies to national defence information; and in any event, it will be for a court to determine on its merits. None of this raises a real risk that a court would find that Mr. Assange will not be protected by the US Constitution in general or by the due process clause of the Fifth Amendment in particular.”
“To be clear, the United States has arguments against these potential challenges to the superseding indictment, and does not believe that they would have any merit; otherwise, it would not have proceeded with the charges. Without binding the United States to any position here, however, we could advance a number of arguments in response to those challenges. …Concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information, and even were they so entitled, that Assange’s conduct is unprotected because of his complicity in illegal acts and in publishing the names of innocent sources to their grave and imminent risk of harm… Concerning any void-for-vagueness claim, the United States could point out that courts are not to expect statutes to provide “[p]erfect clarity and precise guidance.”
“Right to a fair trial 1. In the determination of… any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law… 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. …”
“…it would appear that plea bargaining is more common in the United States than in the United Kingdom or other Contracting States. However, it is a common feature of European criminal justice systems for a defendant to receive a reduction in his or her sentence for a guilty plea in advance of trial or for providing substantial co-operation to the police or prosecution (for examples of plea bargains in the Court’s own case law see Slavcho Kostov v Bulgaria (28674/03) November 27, 2008 at [17]; Ruciński v Poland (33198/04) February 20, 2007 at [12]; Albo v Italy(2006) 43 EHRR 27 at [22], February 17, 2005; Erdem v Germany(2002) 35 EHRR 15 ). Often, early guilty pleas will require the prosecution and the defence to agree the basis of that plea. For that reason, the fact that the prosecution or trial judge indicates the sentence which the defendant would receive after pleading guilty at an early stage and the sentence the defendant would receive if convicted at trial cannot of itself amount to oppressive conduct. Therefore, there is nothing unlawful or improper in that process which would raise an issue underart.6 of the Convention .”
“112. It certainly seems alien to English criminal procedure that the sentence for one offence can be enhanced by reference to matters so serious as those engaged here without a trial, and that is a matter which had concerned the Supreme Court, in the context of mandatory increases above the standard statutory range. 113…It is possible to disagree with its merits or effects, but the approach is a legitimate one to what constitutes punishment for the offence of which someone has been convicted. In a domestic US case, in which the same procedure is adopted, they are clearly seeking to punish the defendant for the crime of which he has been convicted. The fact that they can take a broader approach to what is relevant to sentencing than the UK Courts might do, and adopt a different procedure for determining facts does not mean that there is a breach of specialty. They are still punishing the defendant, and certainly on their legitimate perception, for the offence for which the defendant has been tried, the extradition offence in an extradition case.”
“[t]his cannot be the case.”
“‘...Other Wikileaks’ publications could form part of this ‘relevant conduct’ including publication of the Detainee Policies in 2012, revelations of US espionage against European leaders including Chancellor Merkel and President Sarkozy, the 2015 revelations of espionage against the European Commission, the European Central Bank and French industry, and the 2017 publication of US spying during the French presidential election campaign. The publication of the DNC emails during the 2016 US presidential election may also be considered. If the US government believes that publishing leaked documents is a crime, as is evident from its indictment of Mr Assange, then it seems reasonably likely that it will seek to enhance his sentence with evidence of similar conduct...’.”
“Death penalty (1) The Secretary of State must not order a person’s extradition to a category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the category 2 territory. (2) Subsection (1) does not apply if the Secretary of State receives a written assurance which he considers adequate that a sentence of death- (a) will not be imposed, or (b) will not be carried out (if imposed).” (a) will not be imposed, or (b) will not be carried out (if imposed).”
“Capital Punishment When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the executive authority in the Requested State may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out.”
“Pursuant to the terms of the Council of Europe Convention on the Transfer of Sentenced Persons (COE Convention), to which both the United States and Australia are parties, if Mr Assange is convicted in the United States, he will be eligible, following conviction, sentencing and the conclusion of any appeals, to apply for a prisoner transfer to Australia to serve his U.S. sentence. Should Mr. Assange submit such a transfer application, the United States hereby agrees to consent to the transfer. Transfer will then follow, at such time as Australia provides its consent to transfer under the COE Convention.”
“a court hearing an extradition case, whether at first instance or on appeal, has the power to receive and consider assurances whenever they are offered by a requesting state… If, however, a court were to refuse to entertain an offer of assurances solely on the ground that the assurances had been offered at a late stage, the result might be a windfall to an alleged or convicted criminal, which would defeat the public interest in extradition. Moreover… a refusal to accept the assurances in this case, on the ground that they had been offered too late, would be likely to lead only to delay and duplication of proceedings: if the appeal were dismissed on that basis, it would be open to the USA to make a fresh request for extradition and to put forward from the outset the assurances now offered in this appeal, subject, of course, to properly available abuse arguments.”