Exit Notes – bile from the bench

There is a smug claim that camouflages a political economy of exploitation, deception, criminality, plunder and war. It goes like this. Democracy and the rule of law are fundamental to the freedom and sovereignty of the people of the US and the UK. These ideals are zealously guarded by a vigilant press which exposes skulduggery, holds power to account and enables the public to see that justice has been done.

Sadly the mantra that the system is unassailably fair is not true. In 2014 the American Political Science Association published a paper by respected academics Martin Gilens and Benjamin Page. Here’s how they summarised their findings.

Despite the seemingly strong empirical support in previous studies for theories of majoritarian democracy, our analyses suggest that majorities of the American public actually have little influence over the policies our government adopts. Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if still contested) franchise. But we believe that if policymaking is dominated by powerful business organizations and a small number of affluent Americans, then America’s claims to being a democratic society are seriously threatened.

Put bluntly the US is an oligarchy. Britain is little different. The electorate only gets to choose the brand of austerity to be inflicted. UN Special Rapporteur Professor Phillip Alston says “it seems patently unjust and contrary to British values” that that a fifth of the population (14 million people including 4 million children) now live in poverty while 1,5 million are simply destitute.

The experience of the United Kingdom, especially since 2010, underscores the conclusion that poverty is a political choice. Austerity could easily have spared the poor, if the political will had existed to do so. Resources were available to the Treasury at the last budget that could have transformed the situation of millions of people living in poverty, but the political choice was made to fund tax cuts for the wealthy instead.

John Wight writes:

Here, set out above in bold relief, is the barbarism that walks hand in hand with free market capitalism. It is the same barbarism that was responsible for pushing post-Soviet Russia into a decade-long economic and social abyss in the 1990s, and the values that have pushed 14 million people in the UK into the same economic and social abyss in our time...And this is what the ruling class of the fifth largest economy in the world, a country that parades itself on the world stage as a pillar of democracy and human rights, considers progress. The values responsible for creating such a grim social landscape are compatible with the 18th not 21st century. They are proof positive that the network of elite private schools – Eton, Harrow, Fettes College et al. – where those responsible for this human carnage are inculcated with the sense of entitlement and born to rule ethos that defines them, are Britain’s hotbeds of extremism.

Wight’s accusations of hypocrisy and cold-blooded greed will not induce the ruling class to confess. And so on 11 April, when Wikileaks publisher Julian Assange was dragged by police from the Ecuadorian embassy in London where he had sought asylum almost 7 years earlier, Home Secretary Sajid Javid accused him of illegally “undermining the UK….and the values we stand for”. Not one to bear a grudge, Javid promised Assange access to a legal system world-renowned for its fairness. Hours later Assange was cynically jailed by a judge and branded a narcissist by Britain’s free press.

No British institution markets an ethically elevated set of values more enthusiastically than the BBC whose mission famous is to inform, educate and entertain. The public broadcaster puts trust, independence, impartiality, honesty, truthfulness and integrity at the heart of its reportage which is guided by an exacting editorial code and driven by public purposes identified in its Royal Charter. Boris Johnson, as Secretary of State for Foreign and Commonwealth Affairs confirmed the output of the World Service was based on “British Values of accuracy, impartiality, and fairness.”

The BBC, supported by the government, makes a huge effort to export its public broadcasting model founded on these sacrosanct values to the rest of the world. Going by the BBC’s coverage of Assange’s predicament importers should beware.

A piece – chosen at random-  published on the BBC News website on 12 April is headed, “Julian Assange: Why is the Wikileaks co-founder a wanted man?” You learn that Sweden issued an arrest warrant following claims he had raped one woman and sexually molested and coerced another; that he took refuge in Ecuador’s embassy to avoid being questioned in Sweden; that the claims of molestation and coercion were time-barred in 2015 and the rape allegation was dropped in 2017 because Swedish prosecutors were unable to formally notify Assange of the allegations. He remained at the embassy as he still faced a charge of failing to surrender to a court.

There is a link to “Julian Assange: Campaigner or Attention-Seeker” which begins: “To his supporters, Julian Assange is a valiant campaigner for truth. To his critics, he is a publicity-seeker who has endangered lives by putting a mass of sensitive information into the public domain.”  The reader is also informed that Sweden reopened the rape allegation on 13 May and that ten days later the US filed 17 new charges against Assange for violating the Espionage Act.

There is no need to quibble about inaccuracy, omission, misrepresentation or the dagger of impartiality as the weapon of choice. The most cursory of checks would have shown that the ‘rape’ allegations lacked any basis in fact and begged serious explanation. The crucial question is how such a lavishly resourced broadcaster missed and continues to ignore the real story  –  the Washington directed conspiracy to punish Assange and deter whistle-blowers. The superficial treatment of this onslaught on democracy is clearly in breach of the BBC Values and especially the trust afforded Aunty Beeb.

But defending the BBC Values is a perilous undertaking. In Maistry v BBC – a dispute over the exercise of journalistic conscience – the BBC claimed its  Values were no more than a “mission statement”  rather than a belief.  In public the BBC Management Board continued to tout the BBC Values as inviolable, a blatant contradiction which the tribunal refused to consider.

A month-long trial about journalism in which ten BBC managers gave evidence went unreported by the free press. The NUJ reneged on its agreements, declined to help  and did not bother to send an observer. In the absence of scrutiny the tribunal scrapped an earlier judgment, tainted the evidence, ignored submissions, conjured findings out of fallacy, blocked cross-examination, laundered dodgy statements, subverted the law and shamelessly concluded the claimant had no credibility. It vindictively imposed the highest penalty for ‘maliciously’ pursuing a claim sanctioned and set-down for trial by a judge. Further up the appeal chain nine points of law were dismissed in two lines without a word about their merits or deficiencies.

The matter was finally resolved in the Court of Appeal on 9 July 2014 in favour of the BBC. If Lord Justice Underhill’s judgment is followed it will be necessary to prove the impossible to secure protection of freedom of thought and conscience in newsrooms. This is a breach of the  European Convention on Human Rights which does not appear to perturb the Strasbourg court. Lord Underhill’s reasoning that only senior managers can be assumed to subscribe to the BBC Values and that no such presumption of nobility attaches to ordinary employees ostensibly reflects British values.

The war on Assange waged by mainstream journalists benefits from the bile that flows from the bench. Following his arrest, and swift conviction for ‘skipping bail’, he was branded a narcissist by a British judge. Alan Macleod in a piece for FAIR headed “Media Cheer Assange’s Arrest” says “the narcissist accusation is a common trope thrown at enemies of the US establishment… suggesting it is a convenient putdown rather than a good-faith description of anti-establishment figures.”

By way of illustration, ‘The Sydney Morning Herald‘ blared ‘Narcissist’: Assange found guilty of bail breach, faces extradition to US.

His lawyer, Dan Walker, claimed there had been a conflict of interest in earlier hearings before Senior District Court Judge Emma Arbuthnot, whose husband Tory Lord Arbuthnot had been targeted by WikiLeaks. But District Judge Michael Snow said that claim was “laughable” and “shameful”, noting that Assange did not have the “courage to place himself before the court for cross examination” on Thursday. “He has had throughout senior judges who have looked at his case with great care and his assertion that he has not had a fair hearing is laughable and, I’m afraid, the behaviour of a narcissist who cannot see beyond his own self interest,” he said.

In February 2018 Lady Arbuthnot denied an application to cancel the European Arrest Warrant – under which Assange had been bailed. A Swedish prosecutor had belatedly interviewed Assange in 2016 before extradition proceedings were terminated a year later. Arbuthnot ruled that Assange would have to appear in court to explain his failure to surrender and his reasonable cause for doing so. In short she dared him to leave the sanctuary of the Ecuadorian embassy and be arrested by the waiting police.

Lady Arbuthnot was forced to stand-down in a case involving Uber when her husband’s links to the company were exposed by the Observer. However she is prepared to flaunt judicial ethics by refusing to recuse herself from presiding over Assange’s extradition hearing in February next year. “This is what class-justice looks like” says Thomas Scripps in an incisive analysis for the World Socialist Web Site.

Her husband, James Norwich Arbuthnot, is a Conservative member of the House of Lords. He is intimately connected with the British armed forces and security services, whose criminal operations were exposed by WikiLeaks... He is currently co-chair of the UK advisory board for defence manufacturer Thales and is an advisory board member of the Royal United Services Institute for Defence and Security Studies (RUSI). Lord Arbuthnot is also a former director ( he remains a consultant) at security and intelligence consultancy firm SC Strategy, where he worked for two years alongside co-directors Lord Carlile ( a prominent defender of MI5) and Sir John Scarlett (former head of MI6)…The activities of Lord Arbuthnot and his colleagues were the subject of thousands of WikiLeaks disclosures. There are almost 2,000 references in the WikiLeaks’ database to Thales and nearly 450 to RUSI. Lord Arbuthnot himself can be found in over 50 entries. As Assange’s legal team and UN Rapporteur on Torture Nils Melzer have argued, this “strong conflict of interest” requires Lady Arbuthnot to stand down from Assange’s case. Her husband’s entire political life has been dedicated to crushing the sort of transparency and accountability advocated by WikiLeaks.

Judge Snow’s notion that the appellate courts were established to indulge narcissists is nonsense and arguably a contempt. More importantly the discretion of British judges has been severely curtailed by the ideology of “mutual recognition” that underpins the European Arrest Warrant.

This device – based on the assumption of legal parity across all member states  – was created to fight terrorism and fast-track the extradition of migrants spurred across borders by the market. It has undermined the right to a fair trial and consigned thousands of victims to pre-trial detention.

No surprise then that the High Court in November 2011 dismissed Assange’s appeal after finding that Swedish prosecutor Marianne Ny had accurately described the sexual encounters that formed the basis of her allegations and it was not unreasonable for her to  insist on questioning Assange in Sweden.  This was confirmed in May 2012 when the Supreme Court held by a 5-2 majority that Ny could be considered a judicial authority competent to issue an EAW.  Craig Murray, a former British ambassador wrote:

Assange’s initial appeal up to the UK Supreme Court was in large part based on the fact that the warrant did not come from a judge but from a prosecutor, and that was not a judicial authority. I have no doubt that, if any other person in the UK had been the accused, the British courts would not have accepted the warrant from a prosecutor. The incredible and open bias of the courts against Assange has been evident since day 1. My contention is borne out by the fact that, immediately after Assange lost his case against the warrant in the Supreme Court, the British government changed the law to specify that future warrants must be from a judge and not a prosecutor. That is just one of the incredible facts about the Assange case that the mainstream media has hidden from the general public.

The changes to the law affecting Assange were cited in representations to the United Nations Working Group on Arbitrary Detentions.

In brief, the United Kingdom has now concluded:
(i) By virtue of a binding decision of the UK Supreme Court in 2013, that the UK will no longer, where a request is made under a European Arrest Warrant, permit the extradition of individuals where the warrant is not initiated by a judicial authority. It has determined that the requirement of a “judicial authority” cannot be interpreted as being fulfilled by a prosecutor as is the case in relation to Mr. Assange.
(ii) By virtue of legislation in force since July 2014, that the UK will no longer permit extradition on the basis of a bare accusation (as opposed to a formal completed decision to prosecute and charge) as is the case in relation to Mr. Assange.
(iii) By virtue of the same legislation now in force, that the United Kingdom will no longer permit extradition under a European Arrest Warrant without consideration by a court of its proportionality (Mr. Assange’s case was decided on the basis that such consideration was at that time not permitted).

In 2015 UN WGAD found that Assange had been arbitrarily detained by Sweden and the United Kingdom since his arrest in London on 7 December 2010, as a result of the legal action against him by both Governments. In a public statement, the expert panel called on the Swedish and British authorities to end Assange’s deprivation of liberty, respect his physical integrity and freedom of movement, and afford him the right to compensation.

Liora Lazarus, associate professor of law at Oxford University says the decision was met with almost universal ridicule from a line of British officials, academics and the press while the arguments which persuaded the  Working Group were buried.

The most compelling grounds were those based on proportionality. In short, there could have been another, less restrictive way of proceeding. Before issuing a European Arrest Warrant, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room. After Assange, sought asylum in the Ecuadorian embassy they could have questioned Assange by video link. He could have been provided the chance to respond to the allegations against him, or provided with an assurance related to his refoulment to the US….There is still no charge against Mr. Assange. He has, under international, European, and domestic law, the right to be presumed innocent until proven guilty. He has offered to respond to the process in other ways, and would co-operate fully if he had a further guarantee of non-refoulment….Moreover, were the current UK safeguards on the EAW to be applied to Mr. Assange retrospectively, in particular the question of ‘judicial authority’ and ‘proportionality’, it is arguable that the existing EAW would be invalidated and the conditions resulting in Mr. Assange’s continued confinement would shift.

Although a UN WGAD ruling is the highest expression of the review of arbitrary detention that can be made by a human rights body, Britain -which argued that the changes to the law do not apply retrospectively to Assange -refused to comply.

On 1 May Judge Deborah Taylor sentenced Assange to 50 weeks – a fortnight short of the maximum- in a high-security prison for a bail offence relating to a dud EAW. She said he had evaded justice, necessitated the expenditure of £16 million of taxpayers money and had not surrendered willingly.

Whilst you may have had fears as to what may happen to you, nonetheless you had a choice and the course of action you chose was to commit this offence in the manner and with the features I have already outlined…You were not living under prison conditions, and you could have left at any time to face due process with the rights and protections which the legal system in this country provides.

The conflation of asylum with self-confinement is self-serving. Liora Lazarus noted three years earlier:

The conceptual grounds for describing Assange’s conditions as a form of deprivation of liberty are arguable. This doesn’t only relate to the length of time that Assange has remained in the Ecuadorian embassy. It also relates to Assange’s ongoing circumstances. Simply put, liberty must be capable of being realized in actuality. Where the exercise of such liberty would have significantly coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice. To argue that Assange has been ‘self-confined’… is to argue that he has chosen his conditions of residence in the Ecuadorian Embassy by his free will. But such an assertion would be to ignore the conditions which resulted in his decision to seek asylum in the Ecuadorian Embassy in the first place, and in his decision to remain there. He is not free to leave of his own will. The fact that Assange is resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation.

The next part of this note explores why the public lynching of a single and innocent man is vital to the defence of the most powerful and aggressive nation on the planet.

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