There’s speculation about a plea deal for WikiLeaks founder Julian Assange, who’s facing extradition to the US and up to 175 years in jail.
But John Shipton, Assange’s father, explains there are problems with such an arrangement. A former political detainee, freed from US incarceration after such a deal was agreed, has also outlined the pitfalls.
In the name of the father
Journalist Glenn Greenwald interviewed Shipton about a plea deal.
Shipton talked about a possible “diplomatic arrangement” between the US and Australia. He suggested that if the US department of justice agreed to drop the espionage charges, that would just leave the charge of computer intrusion. That charge carries a maximum term of five years, which approximates with Assange’s incarceration at Belmarsh.
Shipton added, however, that a diplomatic arrangement would only work if there was a cast-iron guarantee of no further charges raised once Assange has been repatriated.
The Hicks solution?
Then there is the so-called David Hicks solution.
Hicks was held in Guantanamo Bay for five and a half years. This was after he was handed over to the US military by the (Afghan) Northern Alliance.
At Guantanamo he was provisionally charged with attempted murder, even though he was never a combatant. Hicks explained that under new US laws anyone who was near someone who tried to shoot someone from, for example, the Northern Alliance, could be charged with this offence. Hicks was also charged with conspiracy, though to what was never made clear. A third charge was aiding the enemy – though arguably that was nonsensical as Hicks is not a US citizen.
Later, after a very reluctant intervention by a pressured Australian government, Hicks was told that if he pleaded guilty to providing material support for terrorism he would spend just a further 60 days in Guantanamo, followed by seven months in an Australian prison. This kind of arrangement is known as an ‘Alford Plea’, by which Hicks agrees to plead guilty, while at the same time asserting innocence on the grounds he would not get a fair trial.
Hicks made it clear he didn’t want to plead guilty to anything, but agreed in the end so as to get back to Australia.
Hicks pointed out that the deal had conditions: a one year gagging order, no legal challenge to the conviction, that any travel outside Australia could see him re-arrested, and that profits from anything he wrote about his experiences in Guantanamo will go to the US government, etc. Hicks agreed and he was repatriated.
Hicks subsequently published a book, Guantanamo: My Journey, about his experiences. The book showed that:
Hicks was not an Islamic terrorist but a socially-alienated, politically naïve young man looking for adventure.
In July 2012 the Australian Director of Public Prosecutions ruled that Hicks could retain profits from the sale of the book.
In 2015 the US Court of Military Commission Review quashed Hicks’ conviction for providing material support to terrorism.
Deal or no deal?
Hicks’ warning about a plea deal and its conditions could well apply to any deal offered by the US to Assange.
US constitutional attorney Bruce Afran argues the ideal approach would be if Assange:
pleads while in the U.K., we resolve the sentence by either an additional sentence of seven months, such as David Hicks had, or a year to be served in the U.K. or in Australia or time served.
Afran added that one scenario could see Assange:
plead simply to mishandling official information or even, in the worst case scenario, conspiracy to mishandle official information, a far lesser charge. That would also resolve the case and probably give the U.S. its satisfaction and would allow Julian essentially to hold his head up high after all these years.
He further added that the plea could be by Assange’s lawyers to the US department of justice, from the UK.
However, Assange lawyer Jennifer Robinson reminds us:
We say no crime has been committed and the facts of the case don’t disclose a crime. So what is it that Julian would be pleading to?
Meanwhile an appeal lodged by Assange’s legal team with the European Court of Human Rights is yet to conclude.
Australian government accused of acting unlawfully
There’s another perspective.
In a 2021 paper, Australian law professor Michael Head argued that the Australian government has, as with the Hicks case, spectacularly failed to protect Assange:
Australian governments have unlawfully declined to intervene with the British and US authorities to secure the release of Assange or protect him from being extradited to the United States…
the government has a duty to lawfully consider an application for diplomatic protection in similarly serious circumstances. On the facts of Assange’s case, he may have been wrongly denied diplomatic intervention, due to government responses displaying irrelevant considerations, improper purpose, unreasonableness or perceived bias.
In October, Australian prime minister Anthony Albanese is due to meet with US president Joe Biden. Reporters Without Borders (RWB) comment that this meeting could present an opportunity for a diplomatic solution to enable Assange’s release.
Perhaps the threat of litigation against the Australian government, for failing to provide Assange with diplomatic protection, may help spur things on.
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