All right, y'all, welcome to the Scott Horton Show.
I am the Director of the Libertarian Institute, Editorial Director of Antiwar.com, author of the book Fool's Errand, Time to End the War in Afghanistan, and I've recorded more than 5,000 interviews going back to 2003, all of which are available at scotthorton.org.
We can also sign up for the podcast fee.
The full archive is also available at youtube.com slash scotthorton show.
All right, you guys, introducing Marjorie Cohn.
She is Professor Emerita at the Thomas Jefferson School of Law and the former president of the National Lawyers Guild.
And she's got a really important one here at consortiumnews.com, Assange's indictment on political offense runs counter to extradition treaty.
Welcome back to the show.
Marjorie, how are you?
I'm fine, Scott.
Thanks for having me.
Very happy to have you here.
And as always, you do such important work and right down to the brass tacks on the law here.
Let's start with where is Julian Assange in the process in the extradition?
I know he's in custody in Great Britain right now.
Yes, he is in custody in Great Britain serving a sentence for bail jumping after Sweden dismissed the investigation against him.
He's serving a sentence of 50 weeks in jail.
And meanwhile, the United States, the Trump administration indicted him for 17 counts of violating the Espionage Act and conspiracy with Chelsea Manning to crack a password on a defense department computer.
And he faces 175 years in prison.
So on Monday, the 24th of February, his extradition hearing will begin in the courtroom of Judge Vanessa Baratzer in London, and it will take place in two parts, first in February and then the second part will take place in May.
And the Trump administration is arguing that he should be extradited to the United States for trial on this indictment.
But the 2003 extradition treaty between the United States and the UK says that extradition shall not be granted if the offense for which extradition is requested is a political offense.
And it's up to the UK judge to determine whether or not his indictments under the Espionage Act are politically motivated.
Now there is no clear definition of political offense, but it routinely includes treason, sedition, and espionage, as well as offenses directed against state power.
And Assange is being charged under the Espionage Act for making public information, true information from a whistleblower, that's Chelsea Manning, which makes the charges against him political in nature rather than criminal.
Now the Obama administration did not indict Julian Assange because it did not want to, in the words of Charlie Savage of the New York Times, establish a precedent that could chill investigative reporting about national security matters by treating it as a crime.
And the Obama administration could not make a distinction between what WikiLeaks did and what news media organizations like the Times do routinely, soliciting and publishing information they obtain that the government wants to keep secret, according to Charlie Savage.
And many of the documents that WikiLeaks released were published in collaboration with the Times, the Guardian, Le Monde, El Pais, and Der Spiegel, and the outlets published articles based on documents WikiLeaks had released, including logs of significant combat events in the wars in Afghanistan and Iraq.
Now I think it's important, Scott, to talk a little bit about exactly what these documents were that WikiLeaks published.
In 2010 and 2011, WikiLeaks published these classified documents provided by Chelsea Manning, who was a U.S. Army intelligence analyst at the time, and they contained 90,000 reports about the war in Afghanistan, including what are referred to as the Afghan war logs, and they documented more civilian casualties by coalition forces than the U.S. military had been reporting.
WikiLeaks also published almost 400,000 field reports about the Iraq war, which contained evidence of U.S. war crimes, and as well as over 15,000 previously unreported deaths of Iraqi civilians, and the systematic murder, torture, rape, and abuse by the Iraqi army and authorities that were ignored by U.S. forces.
WikiLeaks also published the Guantanamo files, which were 779 secret reports that revealed the U.S. government's systematic violation of the Convention Against Torture and other cruel, inhuman, and degrading treatment or punishment, and the Geneva Conventions by abusing nearly 800 men and boys ages 14 to 89.
Now perhaps one of the most notorious releases that has been broadcast widely that WikiLeaks released was the 2007 collateral murder video, which showed a U.S. Army Apache helicopter target and fire on unarmed civilians in Baghdad, and more than 12 civilians were killed, including two Reuters reporters and a man who came to rescue the wounded in a van.
Two children in the van were injured, and then a U.S. Army tank drove over one of the bodies, cutting it in half.
And those actions constitute three separate war crimes, which are prohibited by the Geneva Conventions and the U.S. Army Field Manual.
Now there's another basis for denying extradition to Assange, extradition of Assange to the United States, and that is under the Convention Against Torture and other cruel, inhuman, or degrading treatment or punishment.
When Chelsea Manning was arrested in 2010, she was held in solitary confinement for 23 days, 23 hours a day for 11 months, and she was forced to stand nude during daily inspections.
And the former U.N.
Special Rapporteur on Torture said that that treatment was cruel, inhuman and degrading, and possibly constituted torture.
And the Convention Against Torture has a provision called non-reformant, and that forbids the extradition of a person to a country where there are substantial grounds to believe he would be in danger of being tortured.
Now since Manning was tortured by being held in solitary confinement for 11 months, it's likely that Assange would face a similar fate if he were extradited to the United States.
And Niles Meltzer, the U.N.
Special Rapporteur on Torture, who investigated the Assange case, said recently at a rally in London that if Assange were extradited to the U.S., he would be tortured until the day he dies.
And also, there were U.S. court files that Assange's lawyers saw that revealed that if he were extradited, Assange would be subject to special administrative measures.
They're known as SAMs.
And a report by Yale University Law School and the Center for Constitutional Rights called SAMs the darkest corner of the U.S. federal prison system, combining the brutality and isolation of maximum security units with additional restrictions that deny individuals almost any connection to the human world.
The net effect is to shield this form of torture from any real public scrutiny.
There are two other provisions which should prevent Julian Assange's extradition to the U.S.
First of all, a country has a duty to refuse extradition when it would violate fundamental rights, including the right to be free from torture and cruel treatment.
And the Johannesburg principles of national security, freedom of expression, and access to information, which are widely cited by judges, lawyers, journalists, academics, and civil society, provide no person may be punished on national security grounds for disclosure of information if the public interest in knowing the information outweighs the harm from the disclosure.
Now, there have been letters and statements by judges and academics and former heads of state opposing the extradition of Assange.
More than 80 lawyers and legal academics, as well as at least 12 former heads of state, have signed a letter that will be sent to the UK Home Secretary, and it states the fact that the charges are brought under the Espionage Act further reveals that this is a matter of a pure political offense.
There is broad international consensus that such offenses should not be subject to extradition.
And Veterans for Peace and the National Lawyers Guild, both my organizations, have endorsed a petition urging Judge Baratzer to deny extradition because Assange is charged with a political offense.
And that petition says, the essence of Assange's crime, crime as in quotes, is that he published documents and videos which revealed the reality of US military and political actions.
So we'll see what happens.
We'll see, Scott, whether this judge follows the law and denies extradition or succumbs to political pressure that the United States government levies and agrees to extradite Julian Assange to the United States, which Julian's father has said would, in essence, amount to a death sentence for him.
All right.
Now, so there's a lot to follow up there, and I know you don't have time to go back over all of it, but I wanted to clarify a couple of things here.
Is the U.S. able to make its own case in their court, or is the U.K. government taking the U.S. government's side in this and arguing to the court that he should be extradited?
Well, the U.K.
Home Secretary had to make a determination before even setting the extradition hearing that Julian Assange, even though it's possible to get the death penalty under the Espionage Act, that he would not be charged with the death penalty, because the U.K., which doesn't have the death penalty, would refuse to extradite someone to a country where he could face the death penalty.
So the U.K.
Home Secretary basically cleared this hearing on extradition.
But we'll see what happens.
Certainly there will be representatives from the U.S. government in the extradition hearing, and even if the judge allows extradition, that will be appealed through the British system, through the Council of Europe, the European system, and Julian Assange could raise those same issues when he gets to the U.S. in U.S. courts.
Now the Council of Europe warned that the prosecution of Assange sets a dangerous precedent for journalists and called for his immediate release, and just yesterday over 1,000 journalists from nearly 100 countries united to demand that Julian Assange not be extradited.
They said his imprisonment and the court proceedings are a gross miscarriage of justice, and if governments can use espionage laws against journalists and publishers, they're deprived of their most important and traditional defense of acting in the public interest.
And journalists in other places, in other parts of the world, could be extradited as well.
So there's a lot at stake here.
And the other thing to keep in mind is that Julian Assange has been ...
First of all, he was granted asylum in the Ecuadorian embassy in 2012 after Sweden convinced the U.K.
Supreme Court to extradite him to Sweden on alleged rape and sexual molestation charges, which have now been dropped.
There weren't any charges.
There was an investigation.
Those were dropped.
A lot of them were trumped up.
In fact, there was not enough evidence to prosecute on any of them.
But he was given asylum for seven years, and then a new president was elected in Ecuador, and the Ecuadorian government revoked his asylum and allowed the U.K. authorities to enter the embassy and arrest him, and then Sweden dropped its investigation.
But what happened when Julian Assange was in the Ecuadorian embassy is that the U.K. government denied him permission to go to a hospital for treatment, and so he has very serious medical conditions that were exacerbated by not having them treated all that time.
The U.K. government basically cooperated with the U.S. in mistreating Julian Assange and holding him in this maximum security prison, and before, when he was at the embassy, denying him permission to leave the embassy and not be arrested, and then arresting him once they were given the okay from the Ecuadorian government.
I don't know how independent this judge is or whether she will buckle under to political pressure, but there are many steps to go between now and then.
Is this the same judge that's been holding him in solitary confinement for the last year, almost, up until just a couple weeks ago?
I don't think so.
I could be wrong about that, but I don't think so.
But in May of last year, the U.N.
Special Rapporteur Niles Meltzer said that Assange had exhibited signs of prolonged exposure to psychological torture, and of course talked about the medical conditions, and he said, this is the U.N.
Special Rapporteur, in 20 years of work with victims of war, violence, and political persecution, I have never seen a group of democratic states, I would have put democratic in quotes, but democratic states, and I think he's talking about the U.S., the U.K., and Sweden, ganging up to deliberately isolate, demonize, and abuse a single individual for such a long time, and with so little regard for human dignity and the rule of law.
That's the U.N.
Special Rapporteur.
He just gave a really in-depth interview a couple of weeks ago.
It'll be in the show notes here.
I'm sorry, I forget if it was for Dizit or one of these things, where he explained his entire investigation of the false allegations in Sweden and all the rest of it, how he began the investigation kind of reluctantly in the first place and the rest of that, so that's really important.
That'll be in the show notes.
But let me ask you a couple of things from just worst-case scenario here.
Pretend that instead of considering Julian Assange to be a persecuted, heroic journalist he was actually just like, was it the Walker family in the U.S. Navy that was turning over nuclear secrets to the Soviet Union, something like that, and for money, right?
Just straight-up traitors with no public interest in mind or excuse or anything like that.
Would that still count as a political crime that, hey, we have a traitor who's selling our nuclear secrets, he somehow got to England, but now they can't send him back because it's a political crime that he's wanted for espionage or even treason, which are both death penalty offenses, as you said?
Well, if he is charged with offenses that could get the death penalty, and treason is one of those, certainly in the United States, and if he was in a country like a country in the EU or the UK that didn't have the death penalty that refuses to extradite people to the countries where they might get the death penalty, then he would presumably stay in custody if there was grounds to hold him in custody in the state that was being requested.
I conflated two different things there, the political crime and the death penalty thing.
So what about just the former?
Well, if it's a political offense, it depends.
You see, we're talking here about a specific treaty, a 2003 extradition treaty between the US and the UK, and that says that extradition won't be granted if the request is a political offense.
Now, this is a pretty standard clause in extradition treaties, but there are countries that don't have extradition treaties.
Russia and the US don't have an extradition treaty, so all bets are off, basically, and it would depend upon other things besides the terms of the treaty.
If there is a treaty between the two countries, then certainly that would be the case.
But if we're talking about your scenario, and if it was in the US, we might be talking about the Whistleblower Protection Act, although treason would probably trump that.
But we wouldn't have the journalism aspect that we have with Julian Assange and WikiLeaks, which makes this a different kind of case.
So it really would depend on what countries were involved and whether there was an extradition treaty between the requesting country and the requested country, what the offense was, etc.
And just one more on the worst-case scenario thing, I mean, and again, it's beyond question that they're twisting the meaning of espionage to apply to journalism in this case, because they really hate this journalist, and that's already established.
But again, assuming that it was a case of espionage, more clear-cut, not really a question of journalism, something that I've had a hard time understanding is how the US can charge him for this act of espionage, quote-unquote, from a third country, when he didn't really — it was, everyone agrees, it was Manning that did the actual breaking in and liberating of the secrets here, or taking of the secrets, and Assange received them.
But he wasn't in the United States at the time, and so he's — I wonder how that works in international law, and if that sets a crazy new precedent, or could set a crazy new precedent for, say, for example, Russia and China indicting American journalists for what they write about their secrets, or something like that.
No, you're absolutely right.
It could set that kind of a precedent.
And this would be a brand-new precedent, then?
Well, you know, I don't know.
I mean, I don't know that a precedent is only important when a country follows it, but they certainly could argue, look, you know, you did it with Assange, and we can do it.
But this is not a traditional kind of a thing to happen.
It's not.
It's not.
It's very unusual.
And as I said, and as Charlie Savage wrote in the New York Times, you know, all of these other media outlets also did the same thing that WikiLeaks did, so they're really singling him out.
And yes, Chelsea Manning pled guilty to, you know, taking those documents, but what Julian Assange is charged with, and he should not be charged under the Espionage Act.
This is not espionage.
This is not classic espionage at all, and this is political persecution, there's no doubt about it.
You know, 175 years he's charged with, and meanwhile, 50 weeks for bail-jumping, I mean, that's also, I mean, I did criminal defense work for years, and failure to appear, there's no way you're going to get 50 weeks.
So the U.K. judicial system is working hand-in-glove with the U.S. government, and the Trump administration wants to make an example of him that if you publish information that is critical of U.S. policy and exposes U.S. war crimes, you know, all bets are off, and we're going to come after you.
Even the Obama administration didn't do that.
President Obama brought more charges under the Espionage Act than anyone else.
He went after more whistleblowers than all presidents before him combined, but he was very worried about the precedent that it could set, charging Assange for what WikiLeaks released and published, and so Obama didn't even bring these charges.
But the Trump administration, you know, doesn't think about things like that.
They just, you know, full speed ahead any criticism of the president or the government, and you know, squelched.
Right.
And Obama actually did cross the line from sources into journalists, because he went after that Fox News journalist on that South Korea story, right?
So, I don't think he used the Espionage Act, but he was willing to definitely cross lines as far as that goes.
So it wasn't that he was shy, he just really thought he couldn't do it.
Well, he did.
I mean, he did go after whistleblowers in an unprecedented way.
There's no doubt about it.
And, you know, it was his administration that prosecuted Chelsea Manning.
Chelsea Manning got a 35-year sentence, and as Obama was leaving office, he commuted it after seven years.
You know, she never should have served seven years, but at least he commuted it after.
She didn't have to serve all of the 35 years.
I'm sorry, Marjorie, I know you're short on time, but can you give us a word real quick about Manning sitting in the pen right now for refusing to testify against Assange in this case?
Yes.
In May of 2019, she was jailed for refusing to answer questions before a grand jury about Assange and WikiLeaks, and she remains in custody.
And she actually, well, Niles Meltzer, the same U.N.
Special Rapporteur, said in December of last year that he had serious concern about the coercive measures against Manning, particularly given the history of her previous conviction and ill-treatment and detention.
He said it amounted to torture and she should be released without delay.
But two days later, Manning pledged to stay the course, stating heroically, my longstanding objection to the immoral practice of throwing people in jail without charge or trial for the sole purpose of forcing them to testify before a secret government-run investigative panel remains strong.
She's still in custody, being tortured, incredibly courageous, and she should be released immediately as well.
Yeah.
Well, and by the way, for people who think that that might be abuse of the term torture, let them sit in solitary confinement.
The fact that this is a widespread practice in America doesn't mean it's not torture.
It just means that torture is a widespread practice in America.
That's all.
Well, I edited and contributed to a book called The United States and Torture, and one of the chapters in that book talks about solitary confinement and why it amounts to torture, because people in solitary confinement can suffer hallucinations, it can lead to suicide, and it is now widely thought to be torture, solitary confinement.
She was held for 11 months in solitary confinement, 23 hours a day, Chelsea Manning, when she first went into custody, and now she's back in custody.
She could go testify and get out of custody, but she's standing on principle.
And I think, you know, when I was introduced to the concept, I thought the idea was, this is for the psychopathic murderers that are such psychopathic murderers that none of the other prisoners can be around them at all.
They're just not safe to be around anyone, and it's the absolute last resort.
There's no other choice, in other words, rather than, oh, yeah, no, they pass out time in the hole like it's candy.
Well, it's severely overused, and people should not be in solitary confinement, period.
Torture is illegal.
I don't care what kind of mental problems people have.
The Convention Against Torture says no exceptional circumstances, including a state of war, can ever be used to justify torture.
So there's no justification or rationalization for torture, ever.
And to the extent that the U.S. government, both at the national level and the local level, engage in torture, that's illegal and immoral as well.
All right, you guys, that is Marjorie Cohn.
She is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild.
Find this extremely important article at ConsortiumNews.com.
Assange's indictment on political offense runs counter to extradition treaty.
Thank you so much for your time, Marjorie.
Thank you, Scott.
