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Tag Archives: whistleblowers

Case Mismanagement in London: Julian Assange, Political Offences and Surveillance

While Australian journalists bonded and broke break in condemning national security legislation that some of them had previously supported, one figure was barely mentioned. Julian Assange was making his first public appearance since April for a case management hearing at the Westminster Magistrates Court.

Those in attendance were disturbed. Craig Murray professed to being shaken. “Every decision was railroaded through over scarcely heard arguments and objections of Assange’s legal team, by a magistrate who barely pretended to be listening.” His condition had deteriorated: receding hair, premature ageing, lost weight. Some cognitive impairment seemed to have set in: incoherent trains of thought, a trouble to articulate and recall events.

By the end of the session, we were left with a few points of consideration. The first, as ever, remains that British justice is, at best, a ceremonial cloak that continues to operate in the shadows of power. Observe formalities, but do away with the substantive matters.

The second is an unfolding international dimension that links private security firms, the US intelligence services, and Ecuador in what can only be described as a political effort to eliminate a one of the most recognisable figures of publishing in recent memory. He must be done away with, mentally and physically eroded as person and being. Spiritually, he must be snuffed out.

With odds firmly against him, Assange’s defence team were keen to impress district magistrate Vanessa Baraitser on two grounds: that they be granted a preliminary hearing on the issue of whether the extradition might fall foul of the US-UK Extradition Treaty of 2003; and that they be granted a postponement of the February 24, 2020 full extradition hearing.

The latter point was based on two grounds: Assange’s acute legal isolation in Belmarsh prison and emerging evidence arising from a Spanish investigation currently underway into a surveillance operation on Assange when resident in the Ecuadorean embassy in London. The material gathered there might prove critical to the defence, not least of all its evident illegality.

When Assange was asked by the magistrate whether he had understood what had transpired, he gave the sort of reply that one would justifiably expect from a bruised, ailing political prisoner. “I don’t understand how this is equitable. This superpower had 10 years to prepare for this case and I can’t access my writings. It’s very difficult where I am to do anything but these people have unlimited resources… They are saying journalists and whistleblowers are enemies of the people. They have unfair advantages dealing with documents. They [know] the interior of my life with my psychologist. They steal my children’s DNA. This is not equitable what is happening here.”

Magistrate Baraitser was not exactly feeling generous, though she did relent in granting a two months extension to Assange’s defence team, ostensibly to give them time to consult evidence emerging from Spanish investigative proceedings.

The Spanish angle on this is critical, concerning, in the words of the WikiLeaks press release, “clandestine operations against Assange, his lawyers and doctors and Assange’s family, including at the Ecuadorean embassy.” These centre on the conduct of David Morales, owner of UC Global SL, a Spanish security company charged with protecting the Ecuadorean embassy in London when Assange was its famous tenant.

Morales is being investigated by the Audiencia Nacional, Spain’s High Court, for allegedly ordering the surveillance of Assange’s conversations in the embassy, including those with his lawyers, and passing on material to US intelligence services. Morales, keen on being as comprehensive as possible in this endeavour, specifically requested his team to list “the Russian and American citizens” visiting Assange, material of which was sent to a File Transfer Protocol server in the company’s mother ship location in Jerez de la Frontera. The storage material there comprises data from phones, details on professions, and matters of nationality. Rather damnably, employees who worked for Morales’ company have revealed that the Central Intelligence Agency had access to the server.

The case being presented against Morales is a true cocktail of breaches: privacy violations, the violation of lawyer-client privilege, bribery, misappropriation, money laundering, and the criminal possession of weapons.

Morales was arrested in Jerez de la Frontera on September 17, but as the investigation is under seal, relevant material had not surfaced till this month. That said, the rather seedy resume of UC Global SL was already common knowledge, with an investigation by El País revealing the existence of a surveillance apparatus created by the company with the specific purpose of targeting Assange.

While Baraitser permitted the defence extra time to incorporate material arising from these revelations, she refused to postpone the date set for the full extradition hearing, scheduled for February 24, 2020. The matter will, however, be revisited during the December 19 case management hearing.

What the magistrate did not discuss was the evident intransigence of British authorities who have frustrated efforts by the investigating Spanish Judge José de la Mata to question Assange. On September 25, the judge sent a European Investigation Order (EIO) requesting a video conference with Assange, who would be a witness in the case against UC Global SL. The EIO process, which came into force in Spain in 2018, is designed to ease the laborious processes behind the customary transfer of evidentiary material from one EU state to another. But the United Kingdom Central Authority (UKCA) has decided to stonewall the application, claiming that “these types of interview are only done by the police” in the UK. Nor was the request by De la Mata clear, either in grounds or on the assertion of jurisdiction.

Baffled, De la Mata has pressed the issue in determined fashion, citing previous examples of international cooperation treaties, and noting that restrictions on videoconferencing only apply to the accused, not a witness. “We also provided a clear context for our case, describing all the events and crimes under investigation.” On jurisdiction, the matter was also clear: the suspect was Spanish, the victim (Assange) had filed a complaint and the crimes in question (unlawful disclosure of secrets and bribery) were also crimes in the UK. Quod erat demonstrandum.

The district magistrate also cold-shouldered hearing preliminary arguments as to whether the extradition request was barred by the 2003 US-UK Extradition Treaty. Lawyers representing Assange noted in their court submission that the Extradition Treaty “was at the time contentious, reducing the number of safeguards that might prevent extradition, in particular safeguards from the UK to the US.” Despite much weakening on the subject of citizen protections, one section in the treaty remains unaltered. Article 4(1), retained in the 2007 ratified version, makes the point that, “Extradition shall not be granted if the offence for which extradition is requested is a political offence.”

The US prosecution is positively larded with political implications. Each of the 18 charges against Assange has, at its core, an allegation of intent, namely to obtain or disclose US state secrets in such a way as to damage the security of the United States. Given that state of affairs, the defence sought to advance three grounds: that the court had jurisdiction to determine the issue of whether the charges were political in nature; that the court rule that the offences were such, pursuant to Article 4 of the Extradition Treaty, and “for that reason alone, extradition should be refused in the case.” The magistrate was not so obliging, either in listening to the grounds or giving reasons for her refusal.

Back in Assange’s home country, the editors of News Corp, Fairfax, the ABC, SBS and The Guardian, held hands in their damning campaign dubbed “The Right to Know”. Death to cultures of secrecy, they proclaimed. Onwards transparency warriors. But as with much in journalism, it is slanted, specific and skewed, ignorant of some of the most far reaching changes in the industry in the last decade. Assange remains indigestible to their sensitive palettes. Should he be extradited and convicted, their campaign will come to naught, a mere sliver of after-the-fact protest.

Perhaps fittingly, Australia has produced two notorious figures associated with journalism. They lie at two extremes of the information spectrum: Rupert Murdoch (yes, the same man behind News Corp), who continues to traffic in tits-and-bum titillation and demagoguery, influencing elections through such organs of demerit as The Sun; and Assange, who prefers revealing official secrets through WikiLeaks and, his accusers sneer, influencing elections.

At least some Australian politicians have taken the very public step of not only supporting Assange, but suggesting he return to Australia. It took some time, but this cross-party group have realised that behind the Imperium’s quest to punish the human face of WikiLeaks is a political purpose marked by the ugly, ghastly visage of the national security state.

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A Coalition of Support: Parliamentarians for Julian Assange

Australian politicians, and the consular staff of the country, are rarely that engaged on the subject of protecting their citizens. In a couple of notorious cases, Australian authorities demonstrated, not only an indifference, but a consciously venal approach to its citizens in overseas theatres.

Mamdouh Ahmed Habib, a dual Australian-Egyptian national, was detained in Pakistan in October 2001 and subsequently sent to Guantánamo Bay via Bagram in Afghanistan and Egypt. His subsequent detention till 2005 in a chapter of that sinisterly framed Global War on Terror was without charge and heavy with speculation. In April 2002, the Australian Security Intelligence Organisation formed the view that Habib had not been involved in the planning of future terrorist attacks, a point deemed insufficient in securing his early release. On his release, he initiated federal court proceedings against the Australian government over their complicity in the matter. The case was settled in 2010.

The squalid affair is worth nothing for the essential connivance of Australian officials in the ongoing detention of Habib. Even intelligence assessments within the intelligence fraternity pointing to his innocence were dismissed. In a joint media statement from the Attorney-General and the Minister for Foreign Affairs on January 11, 2005, the standard line was reiterated: “it remained the strong view of the United States that, based on information available to it, Mr Habib had prior knowledge of the terrorist attacks on or before 11 September 2001.” What the US suspected, went.

In a wordy and not particularly illuminating report on the case by the Australian Inspector-General of Intelligence and Security, it was “found that communication to the Habib family in respect of Mr Habib’s welfare was not adequate and recommends that an apology be made.” Stress was made that Australian intelligence officials were not directly involved in his rendering to Guantánamo Bay, though it was noted that “ASIO should have made active enquiries about how Mr Habib would be treated in Egypt before providing information which may have been used in his questioning in Egypt.”

An even more notable case of crude, dismissive abandonment can be found in the plight of David Hicks, another Australian who found himself facing an array of charges brought forth by the “war” on terror. His role in US legal history in fighting that dubious category of “unlawful combatant” and military commissions is assured, but what stood out in the case was an abject refusal on the part of Prime Minister John Howard and his foreign minister Alexander Downer to engage in anything resembling assistance.

In May 2003, with rumours thick that some detainees from Guantánamo Bay were being released, Downer was quick to scratch Hicks from the list. “After all, remember David Hicks was somebody who was allegedly involved with both al-Qaeda and the Taliban, the Taliban being the political articulation of the view of al-Qaeda.”

When pressed by ABC Radio on Australian contributory negligence, Downer merely swatted the allegation, insisting on cryptic and inchoate legal categories. “He’s being held though, let me just make this clear, he’s being held as an unlawful combatant, as somebody who was detained initially by the Northern Alliance and subsequently by the United States”.

Amnesty secretary general Irene Khan, in an open letter to Australian prime minister John Howard, made the case that Hicks had been abandoned. Even after the finding by the US Supreme Court that specifically established military commissions were unconstitutional, the Australian government remained approving of that most curious of aberrations. “They have not taken any effort to ensure that he gets a fair trial.”

In every sense, the Australian response to Julian Assange’s detention, both during his time in the Ecuadorean embassy and in Belmarsh, betrays an unhealthy tendency to regard the controversial citizen as a menace best distanced. Let another country deal with him, and if that country be the United States, all the better.

In recent days, a sense of momentum is gathering suggesting that Australia’s political classes might be tiring of this view. Nationals MP Barnaby Joyce has been shooting off his mouth for reasons more constructive than usual. “Whether you like a person or not, they should be afforded the proper rights and protections and the process of justice, as determined by an Australian parliament, not another nation’s parliament.”

Grounds for extradition to the United States from the UK, argued Joyce, had not been made out. “If a person is residing in Australia and commits a crime in another country, I don’t believe that is a position for extradition.”

Independent Tasmanian MP Andrew Wilkie is also mucking in, hoping to cobble together a coalition of supporters in the Australian parliament to support Assange’s return to Australia. “The only party I’m having to work extra hard on getting members of the group is Labor.”

The more traditional front, however, is being maintained by the Treasurer, Josh Frydenberg. “He [Assange] ultimately will face the justice for what he’s been alleged to have done, but that is a legal process that will run its course.” Rather weakly, Frydenberg made a lukewarm concession: that “we will continue, as a government, to provide him with the appropriate consular services.”

If there was a time to fight legal eccentricity and viciousness, it is now. Just as Hicks and Habib faced complicity and a range of stretched and flexible legal categories, Assange faces that most elastic of instruments designed to stifle publishing and whistleblowing: the US Espionage Act of 1917. Should he be extradited from the United Kingdom and face the imperial goon squad in Washington, we will be spectators to that most depraved of state acts: the criminalisation of publishing. Australia’s parliamentarians, never the sharpest tools in the political box, are starting to stir with that realisation.

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Fly United?

Bill Shorten has said “The only thing standing in the way of Tony Abbott winning another term in 2016 is our ability to stand together.”

I disagree.

I don’t want to just be part of a group standing there waiting for Abbott to implode. I want to rage against every injustice.  I want to expose the lies and hypocrisy.  I want to discuss what we must do to protect vulnerable people and a vulnerable planet.  Instead of the future of the budget, I want vision for the future of society to become the narrative.  I want our priorities reassessed.

The increasing level of government secrecy is very concerning. They have given themselves the right to snoop on all of us at the same time as legislating to convict journalists and whistleblowers who report on things that might embarrass our government, now called “special intelligence operations”, and designated as such by a politician.

This was supported by both major parties, as was the dismissal of the need for any form of federal ICAC.

Free Trade Agreements will be negotiated in secret but other countries’ private discussions will be bugged, not that we can report on that anymore.

Buying entry to a Minister’s office is acceptable.  Running campaigns is a costly business and if we didn’t get the money from developers and lobby groups then the public would have to pay for us to run.

Corruption? What corruption?  We don’t need no stinkin’ oversight!

We have seen this government’s willingness to circumvent high court rulings in cases regarding asylum seekers and school chaplains. Environmental protections are falling faster than old growth trees.

If the law is to be ignored, or changed without debate, and the journalists are silenced, we have created a fertile environment for exploitation.

Speaking of which, did you hear the one about companies paying tax? No?  Neither did I.

Both major parties want to decrease company tax. Gillard delayed it when the mining tax raised less than expected but Hockey is not only giving up the revenue from the mining tax, he also said in his budget speech

“To improve business opportunities, we are cutting company tax by 1.5 percentage points for around 800,000 businesses.”

One wonders why both parties consider this a priority when a recently released report shows companies gave themselves a far bigger cut by hiring good accountants. The report claims up to $80 billion was foregone by the taxman between 2004 and 2013.

“Almost 60 per cent of the ASX 200 declare subsidiaries in tax havens. For example, global broadcaster 21st Century Fox has 117 and logistics group Toll Holdings 72 in low-tax jurisdictions, including Bermuda, the British Virgin Islands and Singapore.

Nearly a third of companies have an average “effective tax rate” of 10 per cent or less.

James Hardie pays an effective rate of 0 per cent tax, Sydney Airport 2 per cent and Echo Entertainment – owner of Sydney’s Star Casino – a mere 5 per cent.”

When asked about the report this morning, Finance Minister Mathias Cormann said Australia had some of the toughest anti-tax avoidance laws in the world.  Oh really?  I can tell you from personal experience, they pursue someone who gets overpaid on Family Tax Benefit far more assiduously than they do our big players who are being offered an amnesty if they just come home…all’s forgiven.  Taking on a team of lawyers and accountants is far harder than pursuing someone who underestimated their future yearly earnings by $1000.

But the most disappointing display of bipartisanship for me is watching Richard Marles compete with Scott Morrison for the credit for the “PNG solution”. I refuse to believe there is no better way.  Why can’t we process people in Indonesia and Malaysia and fly them here?  If this is about “breaking the business model of the people smugglers”, who’s going to pay to risk their lives on a leaky boat if they can fly Qantas?

Instead we send families and unaccompanied children to Nauru who are officially out of cash.

“Nauru’s finance minister says the country is out of money and services will soon start shutting down, including those for refugees.”

Or Cambodia whose corrupt officials are rubbing their hands together at the promise of $40 million to take 5 people on trial.

Or PNG where they are supposed to resettle peacefully with the locals who beat one of them to death and sent many more to hospital.

Foreign Aid has morphed into bribes to absolve ourselves of our responsibility as a signatory to the Refugee Convention.

So Mr Shorten, there are a few reasons why I cannot currently stand together with you. At the moment I see us flying united in the wrong direction for the wrong reasons.  If you would like to take a step or two towards integrity then perhaps we can meet somewhere and talk turkey.

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