The curious case of Julian Assange
Wikileaks founder granted leave to appeal after US fails to give assurances
Julian Assange was granted permission to appeal this morning against a decision to send him for trial in the United States on charges of conspiracy to obtain and disclose national defence information.
The curious thing about the case is that the US government failed to provide the diplomatic assurances that would have put an end to the Wikileaks founder’s appeal against extradition.
It felt almost as if someone senior in the US wanted to stop the case ever coming to trial but didn’t want the embarrassment of withdrawing the extradition request. Last month, President Biden said he was considering a request from Australia to drop the case against Assange.
This morning, Dame Victoria Sharp and Mr Justice Johnson delivered a brief extempore judgment after a hearing lasting less than two hours. They gave Assange leave to appeal against the decision of the district judge to send his case to the home secretary on two grounds:
whether his extradition was compatible with the right to freedom of expression under article 10 of the European Convention on Human Rights; and
whether his extradition was barred by section 81(b) of the Extradition Act 2003 on the ground that he might be prejudiced at his trial or punished by reason of his nationality.
There will now be a full hearing, not expected before the autumn.
At an earlier hearing in March, the two judges held that only three of the several grounds he had raised were arguable. The first two were the ones on which he was given leave today. The third was that there was inadequate protection against the risk that he might face other charges for which he might be sentenced to death.
Death penalty
The US gave a clear assurance on the third point. It said:
A sentence of death will neither be sought nor imposed on Assange. The United States is able to provide such assurance as Assange is not charged with a death-penalty eligible offence, and the United States assures that he will not be tried for a death-eligible offence.
That assurance was accepted by Assange’s lawyers. He was therefore refused leave to appeal on that point.
Discrimination and free speech
If he is tried in the US, Assange will rely on the First Amendment to the US constitution, which protects freedom of speech. The court had received five sworn statements from Gordon Kromberg, a federal prosecutor.
Kromberg said:
Concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defence information and, even were they so entitled, that Assange’s conduct is unprotected because of his complicity in illegal acts and in publishing the names of innocent sources to their grave and imminent risk of harm.
If Assange was not protected by the First Amendment, there would arguably be a breach of his right to freedom of expression under article 10 of the human rights convention. Incompatibility with human rights is a statutory bar to extradition.
In March, Sharp and Johnson invited the US authorities to meet the court’s concerns by providing assurances. All they could manage on freedom of expression was this:
Assange will not be prejudiced by reason of his nationality with respect to which defences he may seek to raise at trial and at sentencing. Specifically, if extradited, Assange will have the ability to raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the constitution of the United States.
A decision as to the applicability of the First Amendment is exclusively within the purview of the US courts.
“This is a blatantly inadequate assurance,” said Assange’s counsel, Edward Fitzgerald KC. The assurance was not that Assange could “rely” on first amendment rights but “merely that he can seek to raise” them.
Kromberg had done nothing to allay the concerns that the prosecutor himself had raised, Fitzgerald said. US prosecutors commonly gave assurances in similar circumstances, Fitzgerald told the court. Kromberg’s silence was “noticeable and significant”.
According to Fitzgerald, there was still a real risk that Assange would suffer discrimination on grounds of his nationality because there was nothing to prevent a US court from denying him the rights enjoyed by a US citizen. “The US court could still take the point,” he said.
In written submissions on behalf of the US government, James Lewis KC said:
The position of the US prosecutor is that no-one, neither US citizens nor foreign citizens, are entitled to rely on the First Amendment in relation to publication of illegally obtained national defence information giving the names of innocent sources to their grave and imminent risk of harm…
The conduct in question is simply unprotected by the First Amendment. There can be no “serious possibility” of prejudice on the basis of nationality when the issue of nationality (or even citizenship) is not dispositive and may, in fact, never factor into a US court’s legal analysis.
There was no application for bail after the judges had delivered their ruling and so Assange will remain in custody while he waits for his appeal to be heard. He did not attend the hearing, even remotely, for what his barrister described as “health reasons”.