On the 16th April 2024, the US Embassy in London responded to the Appeals Court Judges request for assurances regarding the treatment of Julian if extradited to the US. The response specifically excluded First Amendment and hence freedom of expression under article 10 of the European Convention to Julian Assange.
A decision as to the applicability of the First Amendment is exclusively within the purview of the U.S. Courts
Embassy of the United States of America London,England. April 16, 2024
Full communication:
2024-610_Extradition_Julian_Paul_ASSANGE__ASSURANCES_Editors Note:
A simple overview of the separation of powers.
The United States Congress ( Senate and House of Representatives) make the laws,
The Administration ( Executive under the President) enacts and operates within these laws.
The Judiciary interpret laws.
The prosecution is under direction of the Department of Justice which is part of the administration. They cannot make assurances ( ie tell the Judiciary how to run a case)
Also as there is no case before the Judiciary, they cannot make a ruling on the applicability of a First Amendment defence
The fact that the US constitution only offers protection to United States citizens is central to allowing the excesses of he US administration such as Guantanamo Bay, extrajudicial extradition, Abu Ghraib
The following issues are still of concern
1. European Convention on Human Rights
The note issues an empty statement, namely, that Assange can try to raise the First Amendment at trial, but the U.S. Department of Justice can’t guarantee he would get it, which is precisely what it must do under British extradition law based on the European Convention on Human Rights.
The U.S. 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. However without that assurance, Assange should be freed according to a British Crown Prosecution Service comment on extraditions.
2. UK Courts cannot enforce assurances
The US assurances mean nothing because if Julian gets to a US court there is nothing UK courts can do to enforce them. They cannot guarantee his safety in any way whatsoever.
Notes:
1. USAID v. Alliance for Open Society, the U.S. Supreme Court ruled in 2020 that non-U.S. citizens outside the U.S. do not possess constitutional rights.
2. 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