By Dr Binoy Kampmark
Another slot of judicial history, another notch to be added to the woeful record of legal proceedings being undertaken against Julian Assange. The ailing WikiLeaks founder was coping as well as he could, showing the resourcefulness of the desperate at his Monday hearing. At the Westminster Magistrates Court, Assange faced a 12-minute process, an ordinary affair in which he was asked to confirm his name, an ongoing ludicrous state of affairs, and seek clarification about an aspect of the proceedings.
Of immediate concern to the lawyers, specifically seasoned human rights advocate Gareth Peirce, was the issue that prison officers at Belmarsh have been obstructing and preventing the legal team from spending sufficient time with their client, despite the availability of empty rooms. “We have pushed Belmarsh in every way – it is a breach of a defendant’s rights.” Three substantial sets of documents and evidence required signing off by Assange before being submitted to the prosecution, a state of affairs distinctly impossible given the time constraints.
A compounding problem was also cited by Peirce: the shift from moving the hearing a day forward resulted in a loss of time. “This slippage in the timetable is extremely worrying.” Whether this shows indifference to protocol or malice on the part of prosecuting authorities is hard to say, but either way, justice is being given a good flaying.
The argument carried sufficient weight with District Judge Vanessa Baraitser to result in an adjournment till 2 pm in the afternoon, but this had more to do with logistics than any broader principle of conviction. As Baraitser reasoned, 47 people were currently in custody at court; a mere eight rooms were available for interviewing, leaving an additional hour to the day. In her view, if Assange was sinned against, so was everybody else, given that others in custody should not be prevented from access to counsel. (This judge has a nose for justice, albeit using it selectively.)
As things stand, Peirce is aiming to finalize the exhibits for submission to the prosecution by January 18. The government deadline for responding to those documents will be February 7. The case proceeding itself was adjourned till January 23, and Assange will have the choice, limited as it is, of having the hearing at the Westminster Magistrates Court or Belmarsh.
Supporters outside the court were also of same mind regarding the paltry amount of time awarded Assange. The rapper M.I.A, showing how support for the publisher can at times be sketchy, managed to have a dig at the state while also acknowledging thanks from it. (An announcement had just been made that she would be receiving an MBE in the Queen’s Birthday Honours List.) “I think it is important to follow this case. I am off to get a medal at Buckingham Palace tomorrow and I think today is just as important. To give somebody an hour to put their case together is not quite right.” Assange supporters would agree with her view that, for “a case of this scale, having only access to two hours to prepare, is illegal in itself.”
The atmosphere around the proceedings has thickened of late, and the WikiLeaks argument here about CIA interference and surveillance conducted by the Spanish firm Undercover Global S.L. while Assange was in the Ecuadorean embassy in London is biting. Prior to Christmas he gave testimony to Spanish judge Jose de la Mata claiming he was not aware that cameras installed by the company in the Ecuadorean embassy were also capturing audio details.
Leaving aside the broader issues of free speech, an argument has been made that CIA meddling might well be the fly in the ointment that impairs the prosecution’s case. This might be wishful thinking, but this is a line of inquiry worth pursuing. The WikiLeaks legal team is keen to press the matter in February during the extradition hearing.
In the well-considered view of James C. Goodale, former Vice Chairman and General Counsel for The New York Times, “After reading El Pais’s series, you would have to be a dunce not to believe the CIA didn’t monitor Assange’s every move at the Ecuadorean embassy, including trips to the bathroom.”
Goodale cites the Pentagon Papers case as an example that the defense may well draw upon. Daniel Ellsberg, who leaked classified Pentagon reports to The Washington Post and The New York Times, had the office of his psychiatrist broken into by President Richard Nixon’s notorious “plumbers”, led by former CIA agent E. Howard Hunt. The conscience stricken analyst was also facing charges under the Espionage Act of 1917. When it came to the trial judge’s attention that government misconduct, including the FBI’s interception of Ellsberg’s telephone conversations with a government official had characterised the entire effort against the whistleblower, the case was dismissed with prejudice. Ellsberg’s treatment had “offended a sense of justice” and “incurably infected the prosecution”.
As with Assange, the footprint of the CIA in Ellsberg’s case was far from negligible. It assisted in the muddled break-in. It penned a clumsy psychiatric profile of Ellsberg and assembled a full identification ensemble for the plumbers: Social Security cards, disguises, drivers’ licenses, speech alternation devices. As Goodale rhetorically poses, “Can anything be more offensive to a ‘sense of justice’ than an unlimited surveillance, particularly of lawyer-client conversations, livestreamed to the opposing party in a criminal case?” It remains for the British courts to consider whether that degree of offensiveness has been achieved in this case.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: email@example.com