“..one of the things that the British courts don’t understand is the U.S. doctrine of separation of powers..”
• US Issues Assurances on Assange (Lauria)
The United States Embassy on Tuesday filed two assurances with the British Foreign Office saying it would not seek the death penalty against imprisoned WikiLeaks‘ publisher Julian Assange and would allow Assange “the ability to raise and seek to reply upon at trial … the rights and protections given under the First Amendment,” according to the U.S. diplomatic note. Assange’s wife Stella Assange said the note “makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a U.S citizen. Instead,” she said, “the US has limited itself to blatant weasel words claiming that Julian can ‘seek to raise’ the First Amendment if extradited.” The note contains a hollow statement, namely, that Assange can try to raise the First Amendment at trial (and at sentencing), but the U.S. Department of Justice can’t guarantee he would get those rights, which is precisely what it must do under British extradition law based on the European Convention on Human Rights.
The U.S. Department of Justice is legally restricted to assure a free speech guarantee to Assange equivalent to Article 10 of the European Convention, which the British court is bound to follow. But without that assurance, Assange should be freed according to a British Crown Prosecution Service comment on extraditions. In USAID v. Alliance for Open Society, the U.S. Supreme Court ruled in 2020 that non-U.S. citizens outside the U.S. don’t possess constitutional rights. Both former C.I.A. Director Mike Pompeo and Gordon Kromberg, Assange’s U.S. prosecutor, have said Assange does not have First Amendment protection. Because of the separation of powers in the United States, the executive branch’s Justice Department can’t guarantee to the British courts what the U.S. judicial branch decides about the rights of a non-U.S. citizen in court, said Marjorie Cohn, law professor and former president of the National Lawyers’ Guild.
“Let’s assume that … the Biden administration, does give assurances that he would be able to raise the First Amendment and that the [High] Court found that those were significant assurances,” Cohn told Consortium News‘ webcast CN Live! last month. “That really doesn’t mean anything, because one of the things that the British courts don’t understand is the U.S. doctrine of separation of powers,” she said. “The prosecutors can give all the assurances they want, but the judiciary, another [one] .. of these three branches of government in the U.S., doesn’t have to abide by the executive branch claim or assurance,” Cohn said. In other words, whether Assange can rely on the First Amendment in his defense in a U.S. court is up to that court not Kromberg or the Department of Justice, which issued the assurance on Tuesday. “The United States has issued a non-assurance in relation to the First Amendment,” said Stella Assange.
