The Assange Case: A Flicker of Hope in the UK High Court
It was faint, but there was more than just a flicker of hope. In the tormented (and tormenting) journey the WikiLeaks founder and publisher, Julian Assange, has endured, May 20, 2024 provided another pitstop. As with many such stops over the years, it involved lawyers. Many of them.
The occasion was whether the UK High Court of Justice would grant Assange leave to appeal his extradition to the United States to face 18 charges, 17 hewn from the monstrous quarry that is the Espionage Act of 1917. He is wanted for receiving and publishing classified US government materials comprising diplomatic cables, the files of those detained in Guantanamo Bay, and the wars in Iraq and Afghanistan. Any computed sentence, glacially calculated at 175 years, would effectively spell his end.
News on the legal front has often been discomforting for Assange and his supporters. The US has been favoured, repeatedly, in various appeals, chalking up the lion’s share of victories since successfully overturning the decision by Judge Vanessa Baraitser to bar extradition in January 2021 on mental health grounds. But Justice Johnson and Dame Victoria Sharp of the High Court of Justice in London promised to keep matters interesting.
A key sticking point in the proceedings has been whether the First Amendment would protect Assange’s publishing activity in the course of any trial in the US. The attitude from the central US prosecutor in the extradition proceedings, Gordon Kromberg, and former Secretary of State and ex-CIA director Mike Pompeo, has been one of hearty disapproval that it should.
Pompeo’s remarks in an infamous April 2017 address as CIA director to the Center for Strategic and International Studies openly branded WikiLeaks “a hostile intelligence service” that proselytised in the cause of transparency and aided such powers as Russia. Assange “and his kind” were “not in the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedom shield them from justice.” They were “wrong” to have thought so.
On January 17, 2020, Kromberg submitted an affidavit to the UK district court that was eye opening on the subject. The following remains salient: “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 defense 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.”
In March 2024, the High Court curtly dismissed six of the nine arguments submitted by Assange in part of his effort to seek a review of the entire case. The judges, anchoring themselves in the initial reasoning of the district court judge, refused to accept that he was being charged with a political offence, something barred by the US-UK Extradition Treaty, or that the CIA had breached lawyer-client privilege in having spied on him in the Ecuadorian embassy in London, not to mention the serious thought given to abduction and assassination.
The judges gave the prosecution a heavy olive branch, implying that the case for extradition would be stronger if a number of assurances could be made by the US prosecution. These were, in turn, that Assange be offered First Amendment protections, despite him not being deemed a journalist; that he not be prejudiced, both during the trial and in sentence, on account of his nationality, and that he not be subject to the death penalty. The insistence on such undertakings had a slightly unreal, woolly-headed air to them.
On April 16, the US State Department filed the fangless assurances in a diplomatic note to the Crown Prosecution Service (CPS). “Assange will not be prejudiced by reason of nationality with respect to which defenses he may seek to raise at trial and at sentencing.” If extradited, he could still “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.”
The US authorities further undertook to avoid seeking or imposing the death sentence. “The United States is able to provide such assurance as Assange is not charged with a death-penalty eligible offense, and the United States assures that he will not be tried for a death-eligible offense.” This can only be taken as conjecture, given the latitude the prosecution has in laying further charges that carry the death penalty should Assange find himself in US captivity.
In court, Edward Fitzgerald KC, representing Assange, explained with cold sobriety that such an assurance made no guarantee that Assange could rely on the First Amendment at trial. “It does not commit the prosecution to take the point, which gave rise to this court’s concerns, i.e. the point that as a foreign citizen he is not entitled to rely on the First Amendment, at least in relation to a national security matter.” In any case, US courts were hardly bound by it, a point emphasised in the statement given by defence witness and former US district judge, Professor Paul Grimm. It followed that the assurance was “blatantly inadequate” and “would cause the applicant prejudice on the basis of his nationality.”
Written submissions to the court from Assange’s legal team also argued that discrimination “on grounds that a person is a foreigner, whether on the basis that they are a foreign national or a foreign citizen, is plainly within the scope of the prohibition [against extradition under the UK Extradition Act 2003]. ‘Prejudice at trial’ must include exclusion on grounds of citizenship from fundamental substantive rights that can be asserted at trial. On the US argument, trial procedures could discriminate on grounds of citizenship.”
In response, the US submitted arguments of a headshaking quality. Through James Lewis KC, it was submitted that the High Court had erred in its March judgment in equating “prejudice on grounds of foreign nationality with discrimination on grounds of foreign citizenship”. The UK Extradition Act mentions “nationality” in preference to “citizenship”. These terms were not “synonymous”.
According to Lewis, Article 10 of the European Convention of Human Rights (ECHR) protecting journalists and whistleblowers was qualified by conduct “within the tenets of reasonable and responsible journalism”. One factor in this context “whether it is reasonable and responsible is where the publication took place – inside a member state’s territory or outside a member state’s territory.”
The prosecution’s written submissions summarise the points. The First Amendment’s applicability to Assange’s case depended on “the components of (1) conduct on foreign (outside the United States of America) soil; (2) non-US citizenship; and (3) national defense information”. Assange, Lewis elaborated, “will be able to rely on it but that does not mean the scope will cover the conduct he is accused of.”
The prosecution suggested that former US Army whistleblower Chelsea Manning, a vital source for WikiLeaks, had been unable to rely on the First Amendment, limiting the possibility that its protections could extend to covering Assange.
Mark Summers KC, also representing Assange, was bemused. “The fact that Chelsea Manning was found in the end to have no substantial First Amendment claims tells you nothing at all. She was a government employee, not a publisher.”
He also made the point that “You can be a national without being a citizen [but] you cannot be a citizen without nationality.” It followed that discrimination arising out of citizenship would result in discrimination based on nationality, and nothing adduced by the prosecution in terms of case law suggested otherwise.
Unconvinced by the prosecution’s contorted reasoning, Dame Victoria Sharp agreed to grant leave to Assange to appeal on the grounds he is at risk of discrimination by virtue of his nationality, in so far as it affects his right to assert protections afforded by Article 10 of the ECHR and the First Amendment.
It remains to be seen whether this legal victory for the ailing Australian will yield a sweet harvest rather than the bitter fruit it has. He remains Britain’s most prominent political prisoner, held in unpardonable conditions, refused bail and subject to jailing conditions vicariously approved by those in Washington. In the meantime, the public campaign to drop the indictment and seek his liberation continues to ripen.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com. Read other articles by Binoy.
FILE PHOTO: A supporter of WikiLeaks founder Julian Assange posts a sign on the Woolwich Crown Court fence, ahead of a hearing to decide whether Assange should be extradited to the United States, in London, Britain
The High Court’s decision to permit Julian Assange to appeal his pending extradition is an important, if partial, victory. The judges are only too aware that, in reality, he has no case to answer. The US charge of ‘espionage’ is blatant nonsense. The fact that it hasn’t already been dismissed and Julian released is a sign of the UK’s generalized subordination to American interests.
Full credit must be given to the international campaign to free Julian – in particular the steely determination of his wife Stella Assange – and to Nils Melzer’s forensic and unanswerable deconstruction of this whole sordid affair. The otherwise slavish Australian political class has voted to demand his release. Even the New York Times and Guardian, both barometers of obsequious opinion, have acknowledged the absurdity of the charges. (‘History’, wrote Engels, ‘is made in such a way that the final result always arises from conflicts between many individual wills, of which each in turn has been made what it is by a host of particular conditions of life.’)
Assange’s only ‘crime’ was to expose a crime. To make available the evidence of US brutalities in Iraq. He could only do so because Chelsea Manning supplied him with the explosive ‘Collateral Murder’ video along with other vital information. She has since regained her freedom, while Assange still rots in Belmarsh. An even-handed Crown Prosecution Service would not have pursued him in the first place. Back in 2013 the Swedes were keen to drop the case. But the CPS, led by Starmer, pleaded with them to keep it open. He and his staffers flew to the US where they conspired with the Obama administration – though the documents related to these trips have been either hidden or destroyed. Like hardened criminals, Starmer and his chums did not want any details leaked to the public. That this fellow is now the so-called ‘Leader of the Opposition’ – applauded by the establishment for having gotten rid of Corbyn’s cohort, reinstated the Blairite old guard and supporting the Israeli genocide – is hardly surprising. His training to become the next acceptable Prime Minister began with the framing of Assange.
Another appalling and vindictive decision was to keep Assange locked up in a maximum security facility, with prolonged periods of solitary confinement amounting to torture. The official explanation was that he had jumped bail, which might explain the refusal to release him; but an open prison, such as are used to keep financial criminals, could surely have sufficed. The real reason was that the intelligence agencies wanted him punished and humiliated. As a result the WikiLeaks journalist is so ill that he has not been able to attend his two most recent court hearings. Are they hoping he will die before the final appeal?
Five years ago, Assange wrote to a friend from his prison cell:
I am unbroken, albeit literally surrounded by murderers, but the days when I could read and speak and organise to defend myself, my ideals and my people are over! Everyone else must take my place. I am defenceless and am counting on you and others of good character to save my life . . . Truth, ultimately is all we have.
Truth alone is never enough, especially in this vile world of Western double standards. The British judicial system has a gruesome record when it comes to dealing with ‘enemies of the state’. That’s because it was created to be an enemy of the people.
Tariq Ali
Writer, journalist and film-maker Tariq Ali was born in Lahore in 1943. He owned his own independent television production company, Bandung, which produced programmes for Channel 4 in the UK during the 1980s. He is a regular broadcaster on BBC Radio and contributes articles and journalism to magazines and newspapers including The Guardian and the London Review of Books. He is editorial director of London publishers Verso and is on the board of the New Left Review, for whom he is also an editor. He writes fiction and non-fiction and his non-fiction includes 1968: Marching in the Streets (1998), a social history of the 1960s; Conversations with Edward Said (2005); Rough Music: Blair, Bombs, Baghdad, London, Terror (2005); and Speaking of Empire and Resistance (2005), which takes the form of a series of conversations with the author.
Small Victory in the Assange Case: Permission to Appeal Extradition
In this video, acTVism Munich provide an update on the extradition case of WikiLeaks founder Julian Assange from London, England. During a two-hour permission to appeal hearing on Monday May 20 at the Royal Courts of Justice, Judges Victoria Sharp and Jeremy Johnson listened to arguments presentated by both the Crown Prosecution Service and the defense. The judges also took into consideration both parties written submissions. Shortly after the hearing concluded, The High Court issued its decision in favor of Mr. Assange, thus permitting him to appeal the extradition order on two technical grounds.
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