Patriot Realm

The way in which Julian Assange has been persecuted by the US, aided and abetted by the UK, Sweden and more lately Ecuador,and abandoned by his own country, Australia, is disheartening.

In days of yore, we were all mates or cobbers.

Those were the days when we all spoke Strine, except those few who copied the US accent during WWII were known as “WoolloomoolooYanks”, when you could leave your car with its crank handle unlocked with the key in the ignition all night with no worries, when we rolled Jaffas down the aisle during the afternoon matinee at the pictures, when there was no television or internet, and when the United Nations and globalisation was still a bad dream.Actually, Assange’s birth surname is Hawkins, which is as dinki-di Aussie as you can get.

Prime Minister Scott Morrison is on record as saying in relation to Assange’s extradition to the US:“It's got nothing to do with us, it is a matter for the US.”

That about sums it up.

I make the following observations in support of Julian Assange:

Echelon

From the 1970s, the US developed a network of antenna installations which were used to intercept satellite communications passing between Russia and its allies during the Cold war.

By the start of this century, the US had established a global network of antennas, which were like “giant vacuum cleaners” in intercepting every phone call or email or other communication worldwide transmitted from satellites above. It was not confined to the military or to matters of security, but to everyone. Even as I write this and upload it to the cloud, it is being intercepted. Computers then scour the millions of interceptions for keywords, which identify and record communications of interest to the powers-that-be.

The existence of the global network was made known in 2011 and 2012, together with thousands of other secret National Security Agency “NSA”documents, by Edward Snowden, a CIA computer security expert,Snowden fled to Russia in 2013 and is now a Russian citizen.

The network is known as “Echelon” and has antenna banks worldwide, including the US, Britain, Japan, Brazil, Australia, New Zealand and India. These afford the US access to every electromagnetic communication and facilitates invasion of privacy and industrial espionage.

The antennas themselves are housed in giant weather-proof balls known as “radomes” which allow passage of the electromagnetic waves through their walls.

For the US to seek to extradite Assange for being a party to hacking and publishing secret information, is the pot calling the kettle black

Julian Assange

Julian Assange was born in Townsville Queensland in 1971 and had an unsettled childhood, moving house and changing schools on many occasions. He studied computer programming, mathematics and physics at the Universities of Central Queensland and Melbourne, without obtaining a degree.

He developed an early interest in computer hacking which is the unauthorized act of accessing computer systems to steal, modify, or destroy data. In 1993 he assisted the Victorian Police in identifying publishers of child pornography, and in 1996 he was released on a good behaviour bond for unauthorised hacking. During that time, he was heavily involved in the emerging website technology which was taking the world by storm.

In 2006, Assange and some associates established WikiLeaks, which is described on its website as follows:

WikiLeaks is a multi-national media organization and associated library. It was founded by its publisher Julian Assange in 2006. WikiLeaks specializes in the analysis and publication of large datasets of censored or otherwise restricted official materials involving war, spying and corruption. It has so far published more than 10 million documents and associated analyses.WikiLeaks is a giant library of the world's most persecuted documents. We give asylum to these documents, we analyze them, we promote them and we obtain more. - Julian Assange, Der Spiegel Interview

WikiLeaks has contractual relationships and secure communications paths to more than 100 major media organizations from around the world. This gives WikiLeaks sources negotiating power, impact and technical protections that would otherwise be difficult or impossible to achieve. Although no organization can hope to have a perfect record forever, thus far WikiLeaks has a perfect in document authentication and resistance to all censorship attempts.

Following the founding of WikiLeaks, the servers were soon moved to Sweden which has strong free-press laws, and where most of the hacking and publishing was carried out by volunteers. Assange travelled widely, promoting WikiLeaks for the first three to four years.It appears to be uncertain where his place of residence was, but it certainly was not the US. It was probably the UK.

In 2010, following a visit to Sweden, Assange is alleged to have committed two sexual offences against women of the “Me Too” variety, following which Sweden issued an international warrant for his arrest. Assange denies the allegations which are mirrored by those being made in Australia today.

In 2012, following the failure of his appeal against an extradition order to Sweden, Assange breached bailand sought refuge in the Ecuadorian Embassy in London,where he was subject to diplomatic immunity. He was to remain there until 2019, during which time he continued his association with WikiLeaks, having internet access. He became a citizen of Ecuador in 2017 until its revocation in 2019.

During his sojourn in the Embassy, the CIA installed secret cameras to observe Assange, and the Ecuadorian president Rafael Correa used agents located outside the Embassy to observe all comings and goings.

Details of the revelations published by WikiLeaks are beyond the scope of this article, but among others include:

Drone strikes in Yemen;
Corruption across the Arab world;
Arbitrary executions by Kenyan police;
Tibetan unrest in China;
A nuclear accident at the Iranian Natanz nuclear facility in 2009, possibly the result of a joint cyber-attack by the US and Israel;
Emails sent or received by presidential candidate Hillary Clinton while she was Secretary of State; and
Thousands of Iraq and Afghanistan War Logs and videos of US air-strikes in Baghdad and Afghanistan, provided by intelligence analyst Bradley (aka Chelsea) Manning.

All of the above revelations, and all others,were in the interest of justice and for the good of humanity in this deteriorating world.

The Manning revelations set the cat among the pigeons, and there were calls for Assange to be charged under the US Espionage Act 1917 and extradited to the US to stand trial. The NSA under the Obama Administration refused to prosecute Assange because the WikiLeaks disclosures were no more than journalism and all subsequent publishers would have to be prosecuted, with which the New York Times concurred. To his credit President Obama said that any prosecution would be unconstitutional and declined to act. Manning was sentenced to 35 years imprisonment but released by Obama after serving 7 years.

When Donald Trump became president, Assange was pursued with a vengeance for reasons which are unclear.

After much to-ing and fro-ing in the UK, Sweden dropped its extradition bid against Assange, and following a meeting between the Trump Secretary of State Mike Pompeo and the then Ecuadorian president Lenin Moreno in 2019, in which re-financing of Ecuador’s foreign debt was on the agenda, Assange was arrested by the Metropolitan Police and removed from the Embassy. He was charged with breaching his bail conditions and sentenced to 50 weeks imprisonment.

While Assange was still in prison, the Trump Administration struck and sought his extradition on 18 countsof alleged criminal conduct, and finally served a Second Superseding Indictment dated June 2020 which contained the second set of amendments to the first indictment. Page 1 of its 49 pages is as below. The indictment is made up of general allegations followed by descriptions of the separate 18 counts of alleged illegal actions.

The judge at first instance refused the extradition of Assange not on any point of law, but because he was a suicide risk if extradited. This ruling was overturned on appeal to the High Court and leave to apply to the Supreme Court was refused “because the application does not raise an arguable point of law.” This is discussed below.

The US has undertaken to allow Assange to serve his sentence in Australia if convicted, and should Australia so request.

Legalities

The indictment deals with only the Manning disclosure for the following two reasons. First, any hacking and publishing counts against Assange by reasons arising from the activities of WikiLeaks would most probably be thrown out by a US superior court for the reasons stated by the Obama Administration. Second, the Extradition Treaty entered into in 2007 between the UK and the US forbids any extradition which is politically motivated. Clearly there would have to be a political motive to prosecute Assange, but not to prosecute any of the myriad of media which re-published the WikiLeaks data.

As is apparent from the first page of the indictment reproduced above, all of the 18 counts arise under Section 371 of 18USC “United States Code Title 18” which deals with “conspiracy to commit offense to defraud United States” and Section 793 of 18USC which deals with “gathering, transmitting or losing defence information.”

The indictment also states: “Assange is charged with conspiracy with Manning to obtain classified information, and actually communicating such information to the entire world.”

Here is the crunch. Assange is not charged with breach of any international law, but only breach of a US Statute –18USC which is the principal federal criminal code of the US, so there is no United Nations convoluted gobbledegook involved.

So for all anyone knows, Assange could have been sipping coffee in the Strand, while communicating with Manning via his iPad and posting information relayed to his iPad by Manning up into the cloud. The US was far away.

The judge at first instance considered the UK Extradition Act 2003 which provides in the first three Sub-Sections of Section 83A:

(1) The extradition of a person (“D”) to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice.

(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge—

(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and

(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.

(3) These are the specified matters relating to the interests of justice—

(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;…..

The forum is a place having jurisdiction to try the offence. For some reason the lawyers for Assange did not rely upon Section 83A,despite the fact that most of Assange’s relevant activity probably occurred in the UK, and for the reason given below the US has no jurisdiction to try Assange, and hence is not an appropriate forum.

In her judgment, the judge at first instance stated:

151. Mr. Assange does not seek to argue that his extradition is barred by operation of section 80, section 83 or section 83A of the EA 2003. However, he does raise challenges under section 81 and section 82 of the EA 2003.

A leading US case which could have been relied upon by Assange in relation to forum is:

What the case is authority for is that the US “forum state”may exercise personal jurisdiction over an out-of-state defendant, so long as that defendant has "sufficient minimum contacts" with the forum state, from which the complaint arises, such that the exercise of jurisdiction "will not offend traditional notions of fair play and substantial justice . . .”.

The court broke down the types of contact that a defendant can have with a state into "casual" contact and "systematic and continuous" contact. In cases with only casual contact, the claim must be related to the contact in order for the state to have jurisdiction.

Assange had not even casual contact with the US in relation to the 18 counts brought against him. He merely talked to someone up in the cloud. The extradition application should have been dismissed and he should have been released. However, Section 83A was not pleaded and there’s the rub.

Morrison should ask Biden to discontinue the extradition application.

Postscript

It is clear from the above that the US claims jurisdiction over electronic communications across the entire world. However, that dystopian view is shared also by Victoria which claims jurisdiction “in or outside Victoria”, ergo everywhere.

Julian Assange - Abandoned by His Country