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extradition_skeleton_argument [2020/02/26 10:42] – add [PAGE 38 and 39] editor116extradition_skeleton_argument [2020/02/26 13:17] – editor9367251490216
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 +
 +  * "WikiLeaks has published its full archive of 251,000 secret US diplomatic cables, without redactions, potentially exposing thousands of individuals named in the documents to detention, harm or putting their lives in danger. The move has been strongly condemned by the five previous media partners -- the Guardian, New York Times, El Pais, Der Spiegel and Le Monde -- who have worked with WikiLeaks publishing carefully selected and redacted documents. 'We deplore the decision of WikiLeaks to publish the unredacted state department cables, which may put sources at risk,' the organisations said in a joint statement. 'Our previous dealings with WikiLeaks were on the clear basis that we would only publish cables which had been subjected to a thorough joint editing and clearance process. We will continue to defend our previous collaborative publishing endeavour. We cannot defend the needless publication of the complete data -- indeed, we are united in condemning it. The decision to publish by Julian Assange was his, and his alone.' Diplomats, governments, human rights charities and media organisations had urged WikiLeaks' founder, Assange, not to publish the full cache of cables without careful source protection. The newly published archive contains more than 1,000 cables identifying individual activists; several thousand labelled with a tag used by the US to mark sources it believes could be placed in danger; and more than 150 specifically mentioning whistleblowers. The cables also contain references to people persecuted by their governments, victims of sex offences, and locations of sensitive government installations and infrastructure."
 +
 +149. The New York Times published on 25 July 2010:
 +
 +  * "The Times and other news organizations agreed at the outset that we would not disclose -- either in our articles or any of our online supplementary material -- anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromised American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site."
 +
 +150. The New York Times magazine published on 26 January 2011:
 +
 +  * "Assange was openly contemptuous of the American government and certain that he was a hunted man. He told the reporters that he had prepared a kind of doomsday option. He had, he said, distributed highly encrypted copies of his entire secret archive to a multitude of supporters, and if WikiLeaks was shut down, or if he was arrested, he would disseminate the key to make the information public. While we assumed we had little or no ability to influence what WikiLeaks did, let alone what would happen once this material was loosed in the eco chamber of the blogosphere, that did not free us from the need to exercise care in our own journalism. From the beginning, we agreed that in our articles and in any documents we published from the secret archive, we would excise material that could put lives at risk. Guided by reporters with extensive experience in the field, we redacted the names of ordinary citizens, local officials, activists, academics and others who had spoken to American soldiers or diplomats. We edited out any details that might reveal ongoing military intelligence gathering operations, military tactics or locations of material that could be used to fashion terrorist weapons. He was angry that we declined to link our online coverage of the War Logs to the WikiLeaks Web site, a decision we made because we feared -- rightly, as it turned out -- that its trove would contain the names of low-level informants and make them Taliban targets."
 +
 +https://www.nytimes.com/2010/07/26/world/26editors-note.html
 +
 +https://www.nytimes.com/2011/01/30/magazine/30WikiLeaks-t.html
  
 === PAGE 33 === === PAGE 33 ===
 +
 +  * "As for the risks posed by these releases, they are real. WikiLeaks' first data dump, the publication of the Afghanistan War Logs, included the names of scores of Afghans that The times and other news organizations had carefully purged from our own coverage. Several news organizations, including ours, reported this dangerous lapse, and months later a Taliban spokesman claimed that Afghan insurgents had been perusing the WikiLeaks site and making a list. I anticipate, with dread, the day we learn that someone identified in those documents has been killed. As for our relationship with WikiLeaks, Julian Assange has been heard to boast that he served as a kind of puppet master, recruiting several news organizations, forcing them to work in concert and choreographing their work. This is characteristic braggadocio -- or, as my Guardian colleagues would say, bollocks. Throughout this experience we have treated Assange as a source."
 +
 +151. The aforegoing contrasts the actions of the defendant with those of reputable media outlets. He is described as a source. He was warned not to publish the names of informants and others in danger if they were identified. He, according to his former media partners, deliberately chose to do so (in contradistinction to what any self-respecting and professional journalist would do).
 +
 +==== C. Abuse of Process - Zakrzewski ====
 +
 +152. If it is alleged that the particulars contained in an extradition request are materially inaccurate, the Supreme Court has accepted it may amount to an abuse of process. However, even this narrow area of discretion operates so as to preclude the extradition Court from adjudicating upon disputed matters of fact going to the conduct alleged in the requesting state.
 +
 +153. Thus, in Zakrzewski v. Regional Court in Lodz, Poland [2013] 1 W.L.R 324 the Supreme Court (per Lord Sumption at §13, emphasis added) set out the conditions in which the Court's abuse jurisdiction may be invoked in relation to the description of the conduct:
 +  * 153.1 Firstly, the jurisdiction "is exceptional". The statements in the [warrant] Request must comprise "statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally)".
 +  * 153.2 Secondly, the true facts required to correct the error or omission "must be clear and beyond legitimate dispute". The abuse of process jurisdiction "is not therefore to be used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant, this being a matter for the requesting court".
 +  * 153.3 Thirdly, the error or omission must be material to the operation of the statutory scheme.
 +  * 153.4 Fourthly, the sole juridical basis for the inquiry into the accuracy of the particulars in the [warrant] Request is abuse of process. The materiality of the error in the warrant will be of critical importance.
 +
 +154. There appear to be three areas of potential Zakrzewski abuse:
  
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 +
 +
 +168. Such acts are "illegal and not protected by the constitution” [§§7-9].
 +
 +169. The defendant's extradition is requested for agreeing to assist Manning in cracking a
 +password hash [§166], in order to obtain unauthorised access to an account in a which
 +would have allowed Manning to log onto a classified DOD account in a manner which
 +would make it more difficult for investigators to identify her [§168, 171].
 +
 +170. The superseding indictment is brought on the basis of the rule of law and not to prosecute the defendant for his political opinions. A motion for selective prosecution (which could be brought on the basis that the prosecution was brought for a discriminatory purpose) may be filed if the defendant wishes to challenge this [§l 7, §68].
 +
 +171. lf extradited, the defendant may challenge the charge against him at first instance with one appeal as of right, and further discretionary appeals as far as the Supreme Court [§67].
 +
 +172. lf extradited, the defendant may challenge the indictment on the basis that his conduct
 +was protected by the free speech provisions of the First Amendment, or that the charges
 +are “void for vagueness”, although the US prosecutors are of the View that such arguments would have no merit [§69-71].
 +
 +I73. Bias among potential jurors is remedied by a robust jury selection process (far more
 +rigorous than that which would be afforded to the defendant in England) and by the large
 +Size of the Jury pool in Northern Virginia [§§72-81].
 +
 +174. After the guilty pleas of Ms. Manning, a "providence enquiry" was initiated to ensure that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts which Manning had chosen to admit and Manning was not subjected to exhaustive questioning about the offences or surrounding circumstances [§§ 142-3]. Thereafter, Mrs. Manning refused to testify before a grand jury and has as a consequence been incarcerated [§§ 145-156].
 +
 +175. Mr. Boyle’s assertions to the continued incarceration of Ms. Manning and the nature of
 +her summons before the grand jury are disputed and have already been litigated unsuccessfully, in America [§§ 157-165].
 +
 +176. Even if, therefore it were perrmissible litigate an alternative construction of the US law
 +under which the defendant is indicted, the scope of American criminal law in this case is not clear beyond legitimate dispute and could not therefore amount to a __Zakrzewski__ abuse.
 +
 +177. The first head of __Zakrzewski__ abuse identified by the defendant must fail because, **first**
 +this court should not entertain rival constructions of US law under the heading of abuse
 +of process and, **second**, because the facts relied on by the defendant are not clear beyond
 +legitimate dispute.
 +
 +2. **Most Wanted**
  
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 +
 +178. As to the most wanted lists, the defence contention is a simple evidential dispute, of a
 +type that the extradition courts should not, indeed cannot, entertain.
 +
 +179. The defendant submits that the allegation that Ms Manning’s disclosure was given in
 +response to the Wikileaks “most wanted" lists is contradictory to the evidence given in Ms Manning‘s Court Martial.
 +
 +180. This assumes that the US prosecution is somehow bound to accept the account given by Ms Manning in her own defence or mitigation. As need hardly be said, this is not the
 +position. After Ms Manning's guilty pleas. a “providence enquiry” was initiated to ensure
 +that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts
 +which Ms Manning had chosen to admit and she was not subjected to exhaustive
 +questioning about the offences or surrounding circumstances [Kromberg l §§142-3].
 +Thereafter Ms. Manning refused to testify before a grand jury and has been found to be
 +in contempt [§§145—156].
 +
 +181. The second affidavit of Gordon Kromberg (§§12 and 13) maintains the factual position
 +of the prosecution Ms. Manning __is__ alleged to have responded to requests made in the
 +most wanted list.
 +
 +182. Therefore:
 +
 +182.1 The defendant’s submissions as to this issue amount to an evidential dispute of the
 +kind that is irrelevant in extradition proceedings.
 +
 +182.2 Because the defendant’s submissions represent an evidential dispute there is no
 +matter of fact relied on by the defendant in furtherance of the abuse argument
 +which is clear beyond legitimate dispute (Zakrzewski [supra]).
 +
 +3. **Other areas**
 +
 +183. The final area of Zakrzewski abuse identified in the SOI is that there are “other areas”
 +which could be “undermined by hard evidence”. These are not identified and so cannot
 +be responded to with precision; however, it will be noted by the Court that the mere
 +assertion that prosecution allegations can be “undermined” is a formulation of the sort of 
 +evidential dispute which the extradition courts cannot consider.
 +
 +4. **Eller**
 +
 +184. Should the defendant seek to rely on the witness statement of Mr. Eller (and his exhibits) to argue that an extradition offence is not made out or in furtherance of a __Zakrzewski__ abuse argument, any such argument must also fail. For the reasons set out below, Mr. Eller’s statement and exhibits are relevant, if at all, to evidential dispute at trial. This precisely the sort of evidence Lord Sumption warned the Court not to consider in __Zakrzewski__ [§13].
  
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  • extradition_skeleton_argument.txt
  • Last modified: 2020/02/27 00:33
  • by editor9367251490216