Due to the BBC article you may read here, a British Court confirmed that the U.S. Government had provided assurances to the Court which the legal team of Wikileaks founder Julian Assange requested within his case of extradition.
Following the formulations used in BBC article, the assurance Mr. Assange and his legal team accepted consists of the following grounds:
that Mr Assange would not receive the death penalty in the US and on two other grounds
that Mr Assange would be able to rely on the first amendment to the US constitution - which protects free speech
that his Australian nationality would not count against him
Looking at the wording of the grounds and assuming that these formulations from the article indeed reflect the legal points and essence of the assurance which the legal team of Mr. Assange received and accepted from the U.S. Government, it is not surprising that the U.S. easily provided such an assurance because actually it means nothing due to vague and legally pointless formulations except one related to death penalty.
So, let’s go through…
Would Mr. Assange be able to rely on the First Amendment to the U.S. constitution - which protects free speech? Of course, he would even without assurance or permission from anyone. The defendant is responsible for his defense himself and may rely on whatever he or she wants. Moreover, Mr. Assange can even rely on any other Amendments of the U.S. Constitution as well as on Constitutions of any other Countries, for example, on Russian Constitution if he thinks that it helps him.
However, the pivotal question is - whether such a reliance helps? In other words, whether the U.S. Constitution (as well as any other Constitutions of any Countries) protects all people in the world, or maybe it protects only the U.S. citizens or people who are within the boundaries of the U.S.? To my opinion, the First Amendment is not applicable to Mr. Assange since he is an Australian citizen, not a citizen of the U.S.
Meanwhile, there is a possibility that the First Amendment may be applicable but only if he was in the United States at the time of the classified information were released by him publicly, in other words, at the time of committing the alleged crime.
However, the rights under any of the Amendments of the U.S. Constitution are not absolute. In the United States there are legal doctrines developed usually by the Supreme Court’s decisions for many years the requirements of which should be met in case of reliance on one or another provision of the U.S. Constitution.
Moreover, as far as I know, the crux of the matter is not his opinion or speech about something but specificly - a publication of the classified documents. Publication of the classified documents and expression of the opinion even over classified documents without disclosure of the classified information containing in it it is not the same thing at all. The First Amendment is not applicable to the unauthorized publication of the documents at all because the First amendment is about opinion or free speech (excepting extreme speech) but not about exposing the classified information.
For example, one thing if a journalist received from somewhere documents and was shocked by the information and created an article exposing by his own words the matters without names and exact information. Even if he or she mentioned that his article relies on the classified documents he received, his or her own opinion without publication of the documents themselves would fall under the journalist’s opinion and investigation protected by the First Amendment (if the journalist is a citizen or within the US). But publication of the documents that are classified (if the accusation about this – I don’t know exactly) it is not an opinion at all.
Similarly, if some journalist during his or her journalist investigation of the drug cartels wrote the article that the cartels are good – it would be not popular but still opinion. Meanwhile, if he or she started selling drugs by him or herself it is not an opinion about that business and a First Amendment of the United States Constitution would not help him or her, even if he or her is a journalist. Because selling drugs it is not a personal opinion but commitment of a crime.
So, the First Amendment is not absolute protection even for people and even for journalists who are in the U.S. or citizens of the U.S. and it is more likely completely irrelevant to the defense of Mr. Assange. What might be really relevant, it is international treaties, declaration of Human Rights, and other international grounds that the U.S. signed and ratified.
However, here, there is also not everything so positive in case if Mr. Assange will be prosecuted and sued in the U.S. …
The U.S. Constitution is promulgated the Supreme Law of all land within the U.S. and the Supreme Court has been repeatedly upholding the denial of the self-execution of the international treaties. Rather the U.S. Courts in their decisions rely on the U.S. law which developed in pursuance of the Constitution and in accordance with the pertaining international treaties. The U.S. Courts has been denying all reliance on the International treaties without referring them to the U.S. law.
Notably, the U.S. is criticized repeatedly by the United Nations for their approach to the international treaties.
However, in Mr. Assange case the U.S. law is against him. Because even the U.S. Presidents had troubles only for storaging classified documents in not appropriate place. There are no doubts that for exposing such documents the accountability is fatally higher.
Backing to the grounds of the U.S. assurance – the ground allowing Mr. Assange to rely on the First Amendment to the U.S. Constitution more likely means nothing, because he can rely on anything that he considers may help him to defend his case and nobody can make him rely or not rely on anything. Therefore, it is a very weird ground the U.S. Government was requested by his legal team.
As to the second ground in the assurance, it makes also no sense at all and therefore, it was easy to be given, because the second ground means also nothing. Indeed, just imagine such a situation that the U.S. Court while rendering the verdict would say “Mr. Assange found not guilty but because he is an Australian citizen – he is guilty” what a joke it is!
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Mr. Assange’s Australian nationality would not count against him even without U.S. assurance, because Mr. Assange will be prosecuted under the U.S. law about exposing classified documents but not because he is or he is not the U.S. citizen. His Australian citizenship neither aggravates nor helps to defend his case at all.
Moreover, if the legal team of Mr. Assange implied that even though Mr. Assange is not the U.S. Citizen, the U.S. Government (Prosecutor) will allow him to rely on the First Amendment, no Federal Court will admit it. Because in the U.S. the Constitution is created by “the People of the United States” and all the U.S. Federal Government is a creature of the Constitution not vice versa. Moreover, by the Article 6 of the U.S Constitution all Federal Government is bound by oath or affirmation to support it. This means that any document signed by the U.S. Government representative not in pursuance of the U.S. Constitution, the U.S. Court will definitely find irrelevant because it is not the Government authority to change the Supreme Law of the Land or to assure someone that the U.S. Constitution will suddenly protect someone who is not entitled to this protection. This, so crucial to know and consider for Mr. Assange’s legal team that not knowing it will gravely damage Mr. Assange defense life.
Actually, the only way to alleviate Mr. Assange’s future accountability is to bring this analysis before the British Court in order to insist on denial of the extradition of Mr. Assange to the U.S. at all on the basis that the U.S. disregards the Human Rights declaration as self-executed authorities for the U.S. Federal Courts that will deprive Mr. Assange of almost any defense since the U.S. Constitution is more likely not applicable to him and, in case the lawsuit will be in the U.S., he cannot rely on the United Nations Declaration of Human Rights alone. Simultaneously, they should negotiate with the U.S. government the lawsuit in British Court because in British Court Mr. Assange would have UN Declaration at least to rely on its provisions. The other way to be not extradited is to win the political asylum case for Mr. Assange in Britain that, as far as I understood they failed to win already.
So, I hope the legal language of the assurance that Mr. Assange and his legal team received from the US Gov was different to one mentioned in BBC article otherwise they got nothing in Mr. Assange favor or for his protection.
This is my legal opinion…
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