Observers comment on Assange extradition hearings

My thanks to Assange Defense Boston for organizing the Massachusetts State House rally on February 20 (above). Assange Defense Boston posted on X a couple of clips of me (below). Read more about "Me and Julian Assange" and see my images from the event.

Here (and embedded below) is a webinar from the European Association of Lawyers for Democracy and World Human Rights about the February 20 and 21 hearings in the UK High Court of Justice. And here (and embedded below) are discussions of journalists, diplomats, and others who were in the room for parts of the hearings.

"..it's not partisanship...this is about government accountability. You can not form coherent policy positions...unless you have the info on which to base them. That's what Julian Assange is about. That's what resisting his extradition is about"
Prof. Rick Peltz-Steele @UMassLaw pic.twitter.com/9ONm9RDxVz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

"[Assange]developed this amazing idea abt freedom of information absolutism...When he founded WikiLeaks..to make the best use of this new democratizing instrument on the internet" Prof. Richard Peltz-Steele @UMassLaw, co-signee letter to @TheJusticeDepthttps://t.co/RJLoxdBue7
2/ pic.twitter.com/umiT9FAvQz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

Western myopia marginalizes war in Sudan, Ecuador

My prayers, especially over the recent holidays, have admittedly felt cliché, if not comical, being dominated by desire for "world peace."

In case Ricky Gervais is right and prayer works like a democratic election (jk; it doesn't), I've focused on the conflicts of the world that my otherwise-trusted David Muir & co., reporting on Israel and Ukraine, seem quick to forget: Sudan and Ecuador.

I've written previously about Sudan (Apr. 2023, Sept. 2023). The New York Times in December reported a death toll in excess of 10,000 and displaced persons rounding 6 million. My friend from Khartoum remains safe abroad, but it looks increasingly like there will be nothing to come home to. I just read in Christianity Today that hospitals have been targeted and destroyed by the warring generals in the unscrupulous scorched-earth struggle.

I'm the last to rush to judgment with the r-word, but is there another explanation for seeming western indifference to this ongoing tragedy?

And then there's Ecuador, which in recent weeks also has entered a chaotic kind of civil war. It's a country dear to me for personal history there, but also of professional interest for fascinating and groundbreaking developments in constitutional law in recent years.

The Daniel Noboa Administration declared war on organized crime after drug lords were broken out of prison, almost certainly with the help of corrupt insiders. As Noboa cracked down, the country was besieged by retaliatory violence, especially in the Guayaquil Canton.

Efforts to remedy the desperate situation are closely related to the social and economic prosperity Ecuador experienced in recent decades. Ecotourism, again especially in Guayaquil, an access point for the Galápagos, had been an engine of economic and social development, precipitating recognition of rights of indigenous people and of nature with which the nation's courts were experimenting.

When I was last in Guayaquil about a dozen years ago, it was safe enough to walk around, for me, at least, by day. Security and the economy were on the upswing. On January 9, 2024, in contrast, the world was horrified to see armed terrorists, some of them teenagers, holding guns to the heads of journalists in a Guayaquil news station broadcasting live. My friend Ugo Stornaiolo Silva, an Ecuadorean lawyer living and working in Poland, reports that his family in Ecuador is safe, but the hatches are battened down. Domestic travel is out of the question.

Elected only in November 2023, Noboa promised to get a grip on drug trafficking and restore the rule of law. In a sense, then, the present violence is a promising sign of a much needed reckoning. Yet it remains to be seen whether the cause is winnable. Observers predict a bloody road ahead, or maybe worse if Noboa wavers in his resolve.

Ecuador's problem is part of the wider narrative of drug trafficking and human migration through Colombia and Central America, driven by the wealth, demand, and relative opportunities of the United States. America's backyard is declining into a mega-narco-state, while neither of our only choices of political party has demonstrated the will or ability to tackle the problem even in its domestic dimension.

Say what you will about China, the PRC recognizes that stability in its neighborhood is essential to the country's own national security. The means to the ends of course are problematic, exemplified by Nauru's recent change of alignment from Taiwan to China. But that matter again demonstrates the ascendancy of Chinese foreign policy over America's apparent appetite for isolationism.

Pray for world peace, as a spiritual matter. Know that it will only happen with American commitment, as a political matter.

*     *     *

As often happens in the course of the school year, my personal blogging in the fall semester had to yield to professional workload. I have been logging matters I'm eager to share and will endeavor to catch up in the coming months.

Chinese aid in foreign development, Taiwan's dwindling number of allies warrant Western concern

Honduras severed ties with Taiwan and doubled down on ties with China just days before House Speaker Kevin McCarthy met in California with the president of Taiwan.

The severing of diplomatic relations between Honduras and Taiwan is an important sign for global security, well beyond the bilateral significance. The People's Republic of China (PRC) has been executing a methodical campaign to isolate Taiwan from the world, a potential preliminary step to an assertion of control that would test the U.S. pledge to defend the disputed territory.

Chinese development policy is a fascinating subject; I take it up each year in one hour with my Comparative Law class.  Evidence abounds to support disparate theories on what the PRC means to achieve with its foreign aid packages. From well meaning humanitarian goals to Machiavellian world domination: it's anybody's guess what's being said in the highest levels of Beijing briefings. I'll paste below the reading list my class used this year to get a handle on this wide-ranging sub-subject. The discussion always is the best of the course.

Around the world, I have seen the vast reach of renminbi. The infrastructure projects alone are simply stunning. Chinese flags boast of telecommunication investment in distant and dusty towns in West Africa and South America. Bridges soar in Croatia and Montenegro; dams in Thailand and Sudan. Glassy government buildings adorn capitals such as Windhoek and Harare. And then there are the ports, from Togo to Sri Lanka to Peru. That's just a sampling of what I've seen with my own eyes.

A Dutch friend working in the aid sector in the Middle East was puzzled when I first asked for his appraisal of Chinese objectives. It's obvious, he opined. They just don't say it.

He and I were in the remote Indian Ocean island nation of the Maldives in March, where I witnessed Chinese-funded projects: a shining national museum, a bridge connecting the capital to the airport island across open ocean, and a massive new airport under construction. 

The Sinamalé Bridge, or China-Maldives Friendship Bridge, links capital Malé to Hulhulé Island.
RJ Peltz-Steele CC BY-NC-SA 4.0

Velana International Airport at left; the new Maldives airport under construction at right.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Maldives National Museum, Malé, opened in 2010.
RJ Peltz-Steele CC BY-NC-SA 4.0

The list of countries that have severed ties with Taiwan upon PRC quid pro quo has grown so long that it's difficult to track, and countries in Latin America and the Caribbean are well represented. I was in Paraguay last year not long after it asked Taiwan for $1bn to remain friends. Typically of countries in the mix, Paraguay is trying to play both sides for the best deal, which, in the end, probably means just using Taiwan as leverage to get the best deal from the PRC. Heritage reported in late February that Paraguay was one of only 14 remaining countries, then, still maintaining ties with Taiwan. 

Last week, Honduras renounced that club. NPR contextualized the move:

Honduras had asked Taiwan for billions of dollars of aid and compared its proposals with China's, Wu said. About two weeks ago, the Honduran government sought $2.45 billion from Taiwan to build a hospital and a dam, and to write off debts, he added....

Taiwanese President Tsai Ing-wen said her government would not "engage in a meaningless contest of dollar diplomacy with China." ....

For decades China has funneled billions of dollars into investment and infrastructure projects across Latin America. That investment has translated to rising power for China and a growing number of allies.

In Honduras, it has come in the form of construction of a hydroelectric dam project in central Honduras built by the Chinese company SINOHYDRO with about $300 million in Chinese government financing.

Honduras is the ninth diplomatic ally that Taipei has lost to Beijing since the pro-independence Tsai first took office in May 2016.

Taiwan still has ties with Belize, Paraguay and Guatemala in Latin America, and Vatican City. Most of its remaining partners are island nations in the Caribbean and South Pacific, along with Eswatini in southern Africa.

As Reuters put it in a headline yesterday, "US, Taiwan seen powerless to stem island's diplomatic losses in Latin America."

When Taiwan President Tsai Ing-wen met with McCarthy in California, she was on her way back from visiting Belize and Guatemala. Media reports tended to spin the meeting as a show of tough-on-China Republican policy. I rather assumed the view I heard from one commentator, that meeting in California was a way not to meet in Taiwan, thus, not to poke the dragon as Nancy Pelosi did.

Schooled on 1970s détente, I'm not much of an American imperialist, and these days, I'm not much of an American exceptionalist. But I do worry that we will one day wake up to find ourselves a quirky outpost of remnant democracy in a world of purported harmony under authoritarian paternity.

Here's your Comparative Law homework for two hours on law and development, including a discussion of the PRC.

Historical and theoretical:

• John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457 (1977).

• Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat'l L. 477 (2012).

Policy:

• Nic Cheeseman, Why There's a Case for Giving Foreign Aid to Authoritarian Regimes, The Conversation (Jan. 14, 2019).

Cheeseman here summarizes his remarks at a University of Birmingham debate in 2019. The whole debate is on video on YouTube, so you can watch it if you like (cued to Cheeseman, who spoke first).

PRC:

• Stephen Paduano, China's Investments in Rwanda Raise Familiar Questions About Debt, The Atlantic (Aug. 3, 2019)Deborah Brautigam & Meg Rithmire, The Chinese "Debt Trap" Is a Myth, The Atlantic (Feb. 6, 2021).

• Keith Bradsher, In Global Slowdown, China Holds Sway Over Countries' Fates, N.Y. Times, (Oct. 7, 2022).James McBride, Noah Berman, & Andrew Chatzky, China's Massive Belt and Road Initiative, Council on Foreign Relations (last updated Feb. 2, 2023).

If you'd like to dig into the numbers of Chinese development aid, have a look at the Global China Initiative at Boston University, especially its recent (Jan. 2023) policy brief.

The older BRI exists alongside more recent, if less extravagant, Chinese policies in the Global Security Initiative (GSI) and the Global Development Initiative (GDI).  The GSI and GDI raise analogous questions. If you would like comparable overviews, I recommend Michael Schuman for The Atlantic (July 13, 2022) on the GSI; Joseph Lemoine and Yomna Gaafar for New Atlanticist (Aug. 18, 2022) on the GDI (pro-Western perspective); and Professor Amitrajeet A. Batabyal for The Conversation (Aug. 4, 2022) on the GDI.

If you would like to learn more about the Chinese debt cancellations in Africa mentioned in the N.Y. Times article, there's a good and fairly even-handed article from Voice of America News (Aug. 25, 2022). One thing I have not given you here is any of the abundant statements from Chinese authorities and state-sponsored media defending Chinese policy; you can find them readily online yourself if you wish to get a flavor.

Conclusion:

Engage with this compelling perspective piece authored by a Harvard law student in 2018. Attorney Sabrina Singh is now an associate in the ESG group at Latham & Watkins in New York City.

• Sabrina Singh, Development Versus Anti-Development: Your Choice Matters, Harv. L. & Int'l Dev. Soc'y (May. 13, 2018).
  

A thanks to my Dutch friend (whom I'm not naming for security) for joining the class from the Middle East via Teams to discuss the delivery of humanitarian aid in conflict zones.

Assange defense group plans Boston/online panel

In connection with Student Press Freedom Day, featuring nationwide virtual events, Boston Area Assange Defense will host a live and streaming program on Thursday, February 23, 6:30-8:30 p.m., on the prosecution (persecution?) of WikiLeaks information activist Julian Assange.

Accused of hypocrisy, the Biden Administration still seeks Assange's extradition from the UK to face charges of espionage in the United States. Assange presently is appealing approval by the British home secretary of the extradition request.

Having co-founded WikiLeaks in 2006, Assange long advocated for absolutism in the freedom of information. But when WikiLeaks received a trove of records from U.S. soldier Chelsea Manning, Assange did enlist the help of journalists to filter the material for public consumption in an effort to protect people, such as confidential informants whose lives would be at risk if they were named as collaborators with western forces.

Nevertheless, the subsequent publication of records in 2010 and 2011 outraged the West.  The records included secret military logs and cables about U.S. involvement in Iraq and, as Al Jazeera described, "previously unreported details about civilian deaths, friendly-fire casualties, U.S. air raids, al-Qaeda’s role in [Afghanistan], and nations providing support to Afghan leaders and the Taliban." Especially damaging to western interests was a video of arguably reckless U.S. helicopter fire on Iraqis, killing two Reuters journalists.

Manning was court-martialed for the leaks. President Obama commuted her sentence in 2017.

Thursday's program is titled, "The Future of Gen Z Journalism Depends on Julian Assange's Freedom." From Boston Area Assange Defense, here is the description.

Boston Area Assange Defense invites you to attend a panel discussion on how the U.S. prosecution of Julian Assange impacts the future of journalism. This event is part of the Student Press Freedom Day 2023 initiative: "Bold Journalism/Brave Advocacy." 

The reality is that "Bold Journalism" has landed Julian Assange in a supermax prison for publishing the most important journalistic work of this century. Our First Amendment rights are threatened by this unconstitutional prosecution of a journalist and gives the US government global jurisdiction over journalists who publish that which embarrasses the US or exposes its crimes.

Prestigious international lawyer Prof. Nils Melzer (appointed in 2016 as UN Special Torture Rapporteur) authored, The Trial of Julian Assange, A Story of Persecution. The book is a firsthand account of having examined Assange at Belmarsh prison and having communicated with four "democratic" states about his diagnosis of Assange exhibiting signs of persecution. He wrote, "I write this book not as a lawyer for Julian Assange but as an advocate for humanity, truth, and the rule of law." "At stake is nothing less than the future of democracy. I do not intend to leave to our children a world where governments can disregard the rule of law with impunity, and where telling the truth has become a crime." Melzer stated, "If the main media organizations joined forces, I believe that this case would be over in ten days."

Boston Area Assange Defense platforms this experienced panel of journalists for a lively conversation about the Assange prosecution, its threat to journalism and the rule of law. Also, a short video clip narrated by Julian Assange's wife will be streamed for informational and discussion purposes.

Students and citizens alike are entitled to a free press so that we can make informed decisions.

A free press is the cornerstone of our democracy.

We must fight against censorship and the criminalization of journalism.

We must show "Brave Advocacy" to end the prosecution of Julian Assange!

Please join us February 23rd for this important "Bold Journalism/Brave Advocacy" event.

Students are invited so kindly share this event with your students!

Online Zoom link. 

Community Church of Boston's YouTube. 

People will also gather at the Community Church of Boston, 565 Boylston St., near Copley Square.

An Assange information table will be set up with literature and petition to MA senators. Boston Area Assange Defense will be present to answer questions....

Guest speakers:

• Jeremy Kuzmarov, Author and Educator, Managing Editor, Covert Action Magazine 
• Esther Iverem, Journalist, Producer, Radio Host, "On the Ground: Voices of Resistance from the Nation's Capital," nationally syndicated on the Pacifica Network
• Sam Carliner, Journalist; Sam's Jan. 2021 article covering the Dept of Justice DC rally during Assange's extradition hearing
• Tarang Saluja, Student, Activist, Journalist

Shoe on other foot as US claims sovereign immunity in foreign court for firing Malaysian embassy worker

The U.S. Embassy in KL commemorates flight MH17 in 2014.
(Embassy photo, public domain, via Flickr)

Malaysian courts have been wrestling with the big bear of foreign sovereign immunity in an ursa minor case arising from the dismissal of a security guard from the U.S. Embassy in Kuala Lumpur.

As a torts and comparative law teacher, I'm interested in how courts manage foreign sovereign immunity. But most of the cases I read are about foreign-state respondents in U.S. courts. I suppose the inverse, the United States as respondent in a foreign court, happens often. But it doesn't often make my newsfeed.

Well, this story did. The shoe is on the other foot with the United States seeking to evade the hearing of an employment grievance in Malaysian courts.

Consistently with international norms, in the United States, the Foreign Sovereign Immunities Act (FSIA) (on this blog) generally codifies sovereign immunity for foreign states in U.S. courts. But an exception pertains for "commercial activity." 

The commercial exception, also consistent with international norms, only makes sense. When a foreign country is acting like any other commercial actor, say, buying toilet paper for the mission restroom, it should not be able to claim sovereign immunity to override its obligation to pay for the toilet paper (contract), nor to escape liability for its fraud in the transaction (tort). Sovereign immunity is rather reserved for when a state acts as a state, doing things only states can do, such as signing treaties and, however unfortunately, waging war—usually.

The exception is easier understood in the abstract than in application. In a case bouncing around the Second Circuit, and reaching the U.S. Supreme Court in 2018 on a related but different question, Chinese vitamin makers claim immunity from U.S. antitrust law. The respondent makers say that they are agents of the Chinese state insofar as they are compelled by Chinese economic regulations to fix prices. U.S. competitors see the cut-rate pricing as none other than anti-competitive commercial activity. The question arises under trade treaty, but the problem is analogous to the FSIA distinction.

Also regarding China, the commercial activity exception was one of the ways that state lawsuits against the People's Republic over the coronavirus pandemic tried to thread the needle on sovereign immunity. In the lawsuit filed in 2020 by the State of Missouri against the PRC filed in 2020, the Missouri Attorney General characterized the Chinese lab in Wuhan as a commercial healthcare enterprise. The district court disagreed in July, and the AG is appealing.

In the Malaysian case, according to the allegations, the U.S. Embassy gave no reason when it terminated a security guard in 2008 after about a decade's service. The security guard probably would not be owed any explanation under U.S. law. But the Malaysian Industrial Relations Act is not so permissive, authorizing complaints to the labor authority upon dismissal "without just cause or excuse."

The opinion of the Malaysian Court of Appeal in the case hints at some bad blood in the workplace and a bad taste left in the mouth of the dismissed guard: "He said he had been victimised by another staff named Rama who had tried to tarnish his good record as he had raised the matter of unreasonable management of the security post.... He said he could not believe that the US Embassy that is recognised the world over as the champion of human rights could have done this to a security guard like him."

Inexplicably, "a long languishing silence lasting some 10 years" followed the administrative complaint, the Court of Appeal observed. "Nobody involved and interested in this case heard anything from anyone. It is always difficult to interpret silence. That silence was broken with a letter from the DGIR [labor authority] calling for a conciliation meeting [in] September 2018.... There was no settlement reached.

"Unbeknown to the workman, the Embassy had [in] March 2019 sent a representation to the DGIR arguing that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court." The United States thereafter succeeded in having the case removed to the Malaysian high court, a general-jurisdiction trial court.

The high court dismissed the case on grounds of U.S. foreign sovereign immunity. The Court of Appeal reversed, holding that the case should not have been removed. The Court of Appeal remanded to the Industrial Court, a specialized labor court, to take evidence on the immunity question. The Malaysian Federal Court recently affirmed the remand, lawyers of Gan Partnership in Kuala Lumpur have reported (Lexology subscription).

Like the FSIA, Malaysian law on foreign sovereign immunity distinguishes commercial activity, jure gestionis, from state action, jure imperii. The dismissed guard argues that his was a simple employment contract, so the United States was acting in a commercial capacity and is not entitled to sovereign immunity. The United States argues that the security of its embassy is a diplomatic matter entitled to the exercise of sovereign discretion.

The case in the Court of Appeal was Letchimanan v. United States (May 18, 2021). Gan Khong Aik and Lee (Ashley) Sze Ching reported the Federal Court affirmance to the International Law Section of the American Bar Association for Lexology on August 30 (subscription). Khong Aik and Sze Ching wrote about the Court of Appeal decision, United States v. Menteri Sumber Manusia (Minister of Human Resources) Malaysia, in July 2021 (Lexology subscription), and with Foo Yuen Wah, they wrote about the high court decision in August 2020 (Lexology subscription).

U.S. White Paper on 'Schrems II': Emperor still clothed

A new U.S. white paper on data protection means favorably to supplement the record on U.S. surveillance practices that, in part, fueled the European Court of Justice (ECJ) decision in "Schrems II," in July, rejecting the adequacy of the Privacy Shield Framework to secure EU-to-US data transfers.

From the U.S. Department of Commerce, Department of Justice, and Office of the Director of National Intelligence, the white paper suggests that the ECJ ruling was interim in nature, pending investigation of U.S. national security practices to better understand whether they comport with EU General Data Protection Regulation norms, such as data minimization, which means collecting only data necessary to the legitimate purpose at hand.  The paper states:

A wide range of information about privacy protections in current U.S. law and practice relating to government access to data for national security purposes is publicly available.  The United States government has prepared this White Paper to provide a detailed discussion of that information, focusing in particular on the issues that appear to have concerned the ECJ in Schrems II, for consideration by companies transferring personal data from the EU to the United States. The White Paper provides an up-to-date and contextualized discussion of this complex area of U.S. law and practice, as well as citations to source documents providing additional relevant information. It also provides some initial observations concerning the relevance of this area of U.S. law and practice that may bear on many companies’ analyses. The White Paper is not intended to provide companies guidance about EU law or what positions to take before European courts or regulators. 

Armed with this additional information, then, the message to the private sector seems to be, Keep Calm and Carry On, using the very same "standard contractual clauses" (SCCs) that the ECJ invalidated.  Yet if the information featured in the white paper has been publicly available, why assume that the ECJ was ill informed?  (Read more about SCC revisions under way, and their likely shortcomings, at IAPP.)

Unfortunately for the U.S. position, the ECJ opinion was not, to my reading, in any way temporary, or malleable, pending further development of the record.  The white paper comes off as another installment in the now quarter-century-old U.S. policy that the emperor is fully clothed.

I hope this white paper is only a stop-gap.  As I said in a Boston Bar CLE recently, no privacy bill now pending in Congress will bridge the divide between the continents on the subject of U.S. security surveillance.  A political negotiation, which might involve some give from the American side at least in transparency, seems now to be our only way forward.

The white paper is Information on U.S. Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems II (Sept. 2020).