Assange Extradition Ruling: Briefing Notes

Jan 29, 2021

Assange Extradition Ruling: Briefing Notes

In summary:

  • On 4 January 2021, a UK judge ruled that it was unsafe to extradite Julian Assange to the United States, and that if an extradition is ordered, this would likely result in his death.
  • The United States wants to prosecute Assange for common journalistic practices after he published documents containing evidence of US war crimes in 2010. He faces up to 175 years in prison.
  • The decision to prosecute Assange has been universally condemned by free speech groups, newspapers and experts as an unprecedented threat to press freedom everywhere, including in the UK.
  • Assange is an unconvicted “remand” prisoner in Belmarsh high security prison. He has been there for 22 months. He faces incredibly difficult conditions of isolation, which are compounded by the COVID pandemic. 97 prisoners in Assange’s house block had tested positive for COVID by the end of December, including the prisoners in the cells on either side of Assange. There have been a number of COVID deaths, suicides and murders at Belmarsh during the time that Assange has been there.
  • If the new US Administration’s Department of Justice drops the charges, this would put a sudden and definitive end to this extraordinary political prosecution and end the gravest attack on press freedom in living memory.
  • RSF and other press freedom groups have written that “Our government must ensure the UK is a safe place for journalists and publishers to work. ​Whilst Julian Assange remains in prison facing extradition, it is not​.”
  • Assange is not being prosecuted for publishing bulk databases.
  • UK courts have consistently described Julian Assange as a journalist and Wikileaks as a media organisation since 2011. The US government’s position on his status is therefore irrelevant from the UK perspective (he is also a member of his journalism union in Australia since 2006 and has won numerous top journalism prizes).
  •  Assange is not being prosecuted for “putting lives at risk”. The “criminal acts” Assange is being accused of is possessing, receiving and disseminating (publishing) classified information which the US government says was harmful to US national interests.
  • The US admits under oath there is no evidence that any person has been harmed as a result of WikiLeaks publications​.
  • The single computer misuse charge makes up only 5 years of the 175 year potential sentence. The US does not claim that Julian Assange “hacked” anything. The US theory is that Assange and Manning tried to hide Chelsea Manning’s identity. The ​US does not claim the purpose was to access classified information​. Indeed, it cannot because the chronology shows that Manning had already provided Wikileaks with the material and had full authorised access by the time this alleged conversation took place.
  • Cryptome.Org was the first to publish the unredacted US State Department cables. Cryptome is a well-known website. The US does not dispute that Cryptome published a full day before WikIiLeaks. Cryptome’s owner has not been prosecuted and has not even been served with a takedown notice.
  • A 75-minute phone call between Assange and the US State Department was leaked over the Christmas period. The phone call took place a full week before Cryptome published the unredacted 250,000 US State Department cables and demonstrates that the US case is not only unfounded, but profoundly misleading. In the conversation Assange warns the State Department that third parties would release the unredacted cables onto the Internet, and advised the US government on how to stop it or mitigate it. (​https://assangedefense.org/2021/01/01/assanges-call-to-the-state-department/​)

Extradition judgment– 4 January 2021

On January 4, 2021, a British judge ruled to block the US extradition oin WikiLeaks publisher Julian Assange on grounds that medical evidence that his Autism Spectrum Disorder, combined with his psychiatric history and the prospect of US imprisonment resulted in a high likelihood of suicide.

The United States is attempting to extradite Assange in order to prosecute him for publishing evidence of war crimes in 2010. For almost two years, Assange has been detained in London’s highest security prison — HMP Belmarsh — as he fights extradition.

The U.S. Justice Department is requesting extradition on charges that legal scholars testified would “radically rewrite the First Amendment” by criminalizing the soliciting, possession, and publishing of government information, regardless of its public interest value. If sent to and tried in the United States, a conviction would be all but guaranteed, as Assange would not be allowed to argue in court that his actions were justified. For publishing stories that won numerous journalism awards, Assange faces up to 175 years in prison.

Assange’s hearing focused on three main arguments: that the indictment of Assange is an unprecedented and dangerously overbroad attempt to criminalize basic journalistic activity; that the prosecution — which Obama declined to introduce and which the media-hostile Trump made its “priority” — is politicized; and that sending Assange to the US, when he has Asperger’s syndrome and clinical depression and where experts testified would most likely be placed in solitary confinement in a Supermax prison for the rest of his life, would endanger his life and put him at grave risk of suicide. The judge accepted this last point.

  • whether it would be unjust or oppressive to send Assange to the U.S;
  • whether extradition would result in the flagrant violation of Assange’s human rights, including his right to freedom of expression, his right to a fair trial and his right to be free from inhuman and degrading treatment;
  • whether the extradition request amounts to an abuse of process for misrepresenting the facts to justify his extradition, including false and unsubstantiated accusations that Assange deliberately and recklessly causing harm;
  • whether the indictment alleges “political” offences and whether it is an abuse of process for the US to seek to extradite Assange for such alleged offences when the U.S.-U.K. Extradition Treaty prohibits extradition for political offences.

The magistrate delivered a lengthy decision recounting the US government’s claims, the defense’s responses, and which aspects she agrees with before ultimately ruling on whether to approve the extradition request.

It is important to note that the UK magistrate makes no findings of fact. US prosecutors arguments are presumed to be true, and the defence cannot cross-examine those claims.

High court Appeal

The US government, having lost at the Magistrate’s court, has asked for permission to appeal the decision to the High Court. If the High Court agrees to hear the appeal, that hearing is expected to take place before the Summer. If the High Court rejects the US request to hear the appeal, Julian Assange will be free.

Appeal process after the High Court

If the High Court accepts to hear the appeal, the losing party can also appeal the High Court’s decision to the U.K.’s Supreme Court and/or to the European Court of Human Rights (the UK Supreme Court can choose to hear the appeal or refuse).

How long could it take?

If President Biden decides to drop the charges, in keeping with Obama’s policy not to prosecute Assange and grant clemency to Chelsea Manning, Julian Assange will immediately walk free.

If the High Court rejects the US request to appeal, Julian Assange could walk free within weeks.

If the final decision comes from an appeal at the High Court, it will most likely be a matter of months.

If the case goes through each stage of appeal to the European Court, the process could take several years.

Implications for Press Freedom

The indictment and extradition request for Assange raises grave and extraordinary concerns for press freedom:

  • The indictment criminalises public interest journalistic activity: legal scholars testified at the Assange hearing that his prosecution on this indictment would put an end to national security journalism and “radically rewrite the First Amendment” by criminalizing the soliciting, possession, and publishing of government information, regardless of its public interest value;
  • The US is seeking to exercise jurisdiction over a foreign publisher and journalist, while at the same time claiming that Assange will not benefit from constitutional free speech protections because he is a foreigner (an Australian citizen), opening the door for the US to extradite other journalists and publishers without offering them free speech protections;
  • Accepting US arguments about double criminality under the Official Secrets Act in the UK means that UK court is locking in the Trump administration’s approach to the prosecution of journalists under the law in this UK, making republication of a document that has previously published a crime, and accepting for the first time the prosecution of a publisher or media worker for clearly newsworthy information.

There has been widespread concern expressed by international organisations and media organisations across the political spectrum about the free speech implications of the extradition and prosecution of Assange.

 

By way of example:

“[The Council of Europe] consider that the detention and criminal prosecution of Mr Julian Assange sets a dangerous precedent for journalists… he must be promptly released”

​“The US government’s unrelenting pursuit of Julian Assange… is nothing short of a full-scale assault on the right to freedom of expression”

“[The] indictment is the latest in a long series of moves by the US government … to divert public attention from the extremely serious press freedom implications of his case”

“Assange’s extradition to the United States would establish a dangerous precedent with regard to the prosecution of journalists in this country”

The charges “contain a real threat to press freedom for journalists and media outlets around the world”​(MEAA is the Australian equivalent of the NUJ)

”This sets an extremely dangerous precedent for journalists, media​ ​organizations and freedom of the press” ​(International Federation of Journalists (IFJ) is the global journalists’ union)

​“This case now represents a threat to freedom of expression and, with it, the resilience of American democracy itself.”

​

“The US case against the WikiLeaks founder is an assault on press freedom​ ​and the public’s right to know”

More details from quotes expanded here in link. 

 

Possibility of a Presidential Pardon

There has been widespread reporting and public discussion about whether the incoming US president will put an end to this extraordinary prosecution. Biden could issue a preemptive pardon, or he could simply drop the indictment and extradition request. Assange’s defence team have laid out extensive reasons for them to do so given the implications for press freedom. There is a time sensitive political opportunity for the US to resolve this case and avoid the catastrophic implications for press freedom – in the US and in the UK, and around the world. Pardon Application in link.

Prison Conditions in the UK

Assange remains detained in HMP Belmarsh, a high security prison. There have been constant issues with his prison conditions, which have been compounded by the further restrictions imposed during the COVID pandemic. There have been 97 cases of COVID in Belmarsh alone, with several deaths reported. There is currently a COVID outbreak in Assange’s prison block, where he is at serious risk of contracting COVID and suffering serious medical complications because of his existing respiratory issues.

For example, before COVID, his legal team reported:

  • Difficulties in access to visits to Assange for the purposes of preparing their case;
  • Difficulties in ensuring Assange had adequate facilities for preparing his defence, including delays in legal papers reaching Assange by post, not being permitted to physically deliver him legal papers, delay in the provision of a laptop to enable him to be able to review the extensive material required for his defence, and so on; and
  • His isolation within the prison and being kept in his prison cell up to 23 hours a day.

Since COVID, his situation in prison has become more difficult, including:

  • No in-person legal visits due to COVID restrictions
  • No videoconferencing because of the risk of COVID transmission (when videoconferencing has been permitted during COVID, the waiting list is approximately 6 weeks)
  • No social visits due to COVID restrictions, which meant Assange was completely isolated from contact with his partner, their small children and his family and friends between late March- mid August and November 2020 – .
  • Due to the COVID outbreak in his prison block, he has for long periods been kept in his cell 24/7, unable to leave his cell to exercise or to shower.

The judge refused a bail application made in early 2020 despite the concerns raised by Assange’s lawyers in relation to the risk of COVID in prison and his ability to properly prepare his defence. Since her decision, there have been several COVID related deaths at Belmarsh prison. After winning his case at the Magistrates Court on 4 January, Assange applied for bail. Bail was refused in spite of the ruling in his favour in relation to US extradition.