In granting Julian Assange only the most limited appeal rights, the UK High Court has deliberately closed its eyes to the press freedom issues at stake and shown a grotesque indifference to Assange’s basic human rights.
By Chip Gibbons
March 31, 2024
Source: Jacobin
Julian Assange, 2014. CancillerÃa del Ecuador, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons
On March 26, 2022, the UK High Court issued a decision about whether journalist Julian Assange could appeal his extradition to the United States. The United States is seeking to put the WikiLeaks founder and Australian journalist on trial for exposing US war crimes and abuses of power. After a nearly five-year legal process, during which a UK judge blocked Assange’s extradition only for a higher court to reverse, the UK High Court in February held two days of hearings on whether Assange had the right to appeal his extradition on a myriad of grounds, including press freedom and free expression concerns. Had the court rejected Assange’s right to appeal, it would have foreclosed any further options for the journalist to fight his extradition before the UK judiciary.
During two days of hearings in February, the British judges presiding over the case seemed to express concern about the possibility that the United States could argue Assange lacked First Amendment rights as a foreign national and the United States’ lack of assurances that it would not seek the death penalty against him. As a result, unsurprisingly, they granted Assange the right to appeal based on these issues.
While the UK High Court has halted Assange’s extradition for now, there is grave cause for alarm. Assange’s lawyers sought to appeal the extradition on nine separate grounds. The UK High Court granted limited appeal rights on three very narrow grounds. In doing so, it dismissed the bulk of Assange’s serious free expression arguments.
It is these concerns that have led press freedom and human rights groups, mainstream newspapers, and even the United Nations special rapporteur on freedom of expression to oppose Assange’s prosecution. In spite of the global outcry about how this case imperils press freedom rights, the UK High Court seemed unable or unwilling to recognize the grave press freedom issues at stake.
On top of that, the court has allowed the United States to potentially sidestep an appeal altogether if it offers assurances that it will not seek the death penalty against Assange or deny him First Amendment rights based on his nationality. This would be the second time in this convoluted legal process that the United States has been allowed to rescue its defective extradition request by granting assurances.
The worst-case scenario for Assange has not yet come true. But ultimately the court’s ruling is a grim one for press freedom.
Security and Speech
Two of the grounds of appeal granted to Assange center on concerns that Assange could be denied First Amendment rights because he is a foreign national. Such a situation would both see Assange subjected to prejudice based on his nationality and deprived of any free expression rights. This fear was not concocted out of thin air. It is based on the statements the lead US prosecutor voluntarily submitted to the UK judiciary.
Throughout the extradition proceeding, US Attorney Gordon Kromberg, the lead prosecutor in the case, has provided the court with a number of sworn declarations. Kromberg is a notorious figure. He has been accused of politically motivated prosecutions and bias against Muslims. In addition to leading the Assange prosecution, he also prosecuted drone whistleblower Daniel Hale. I was present in court for Hale’s sentencing, and Kromberg’s animosity for the courageous whistleblower was clear: at one point, Kromberg compared Hale to a heroin dealer.
The goal of Kromberg’s declarations is to show that Assange’s case is not political, and that Assange would be treated fairly in a US court. To illustrate this point, in a June 2020 declaration, Kromberg argued that if Assange were to be extradited to the United States, he would have the opportunity to challenge the indictment before “independent federal judges.” Kromberg preemptively listed out the types of challenges Assange and his defense team may make. They could argue, according to Kromberg, that Assange was the victim of selective prosecution, that his conduct was protected by the First Amendment, and that the Espionage Act is unconstitutionally vague.
As the lead prosecutor in this and other Espionage Act cases, Kromberg wanted to make clear that “the United States has arguments against these potential challenges to the superseding indictment, and does not believe that they would have any merit; otherwise, it would not have proceeded with the charges.” One such defense? Kromberg wrote, “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”
The intent of Kromberg’s declaration was to show how Assange would receive fair treatment in the United States, thus paving the way for his extradition. By stating the US government might attempt to deprive him of fundamental human rights protections on the basis that he wasn’t a US citizen, the veteran national security prosecutor achieved the opposite result.
The UK Court granted Assange two separate potential points of appeal based on Kromberg’s blunder. First, Assange can appeal on the grounds that he would be subjected to prejudicial treatment as a foreign national. Second, if the First Amendment may not apply to Assange, Assange can appeal the extradition on the basis that it violates the Article 10 of the European Convention on Human Rights guarantee of free expression.
When it comes to Article 10’s right to free expression, Assange’s defense proffered a much wider, more robust range of arguments. They argued that Assange exposed war crimes and faces prosecution for doing so. Under European human rights law, they also argued, Chelsea Manning is a whistleblower, and those who expose state criminality deserve protections.
Assange was only granted the right to appeal based on Article 10 in relation to Kromberg’s comments. When it comes to the broad issue of whether prosecuting a journalist for reporting on war crimes revealed by a whistleblower is a flagrant violation of free expression rights, the UK High Court denied Assange’s right to appeal. In doing so, it displayed a shocking contempt for journalism.
The court argued that the European Court of Human Rights rulings “do not support the proposition advanced by the applicant that whistle-blowers or journalists have an immunity from prosecution in respect of criminal conduct in the course of journalistic activities.” This statement is, of course, at face value, true. Yet saying a journalist cannot commit crimes is different than criminalizing journalism itself.
The UK High Court seems to find little about the Assange prosecution troubling from a free expression perspective. Assange faces eighteen felony counts. Seventeen of the counts were brought under the Espionage Act and concern information given to WikiLeaks by whistleblower Manning about war crimes and abuses of power. Press freedom and human rights groups have been universal in their rejection of the Espionage Act charges.
Yet according to the UK High Court, only three of the charges brought against Assange “directly concern freedom of expression.” The remaining fifteen allegations “are of what may be described as ordinary criminal offences.” Of the charges where the court found a free expression nexus — publishing the Iraq and Afghanistan significant activity reports and the State Department cables — the Court argued that since these documents contained the names of individuals who shared information with the US government, there was no strong public interest in publishing them.
The UK High Court accepted, based on declarations from Kromberg, that in prosecuting Assange for three of the most consequential and groundbreaking publications about US foreign policy in history — the Afghan War Diary, the Iraq War Logs, and Cablegate — the United States is really pursuing a narrow interest in protecting the safety of foreigners who share information with the United States.
This analysis is glaringly wrong for a number of reasons. These publications, which major newspapers around the world participated in, absolutely were in the public interest. There is no evidence from anyone, including the US military, that any harm was done to anyone as a result of these publications, which were clearly in the public interest.
And Assange and WikiLeaks were far from reckless. Multiple media partners testified during the initial extradition hearing about WikiLeaks’s stringent redaction and larger information security policies. John Goetz, an investigative journalist who represented Der Spiegel in their media partnership with WikiLeaks, explained that while working on the Afghan War Diary, Assange agreed to vet documents for their potential to cause harm to individuals. WikiLeaks delayed the release of fifteen thousand pages of documents as part of a harm minimization process. Goetz described the security measures taken as the most stringent he ever encountered as a journalist.
When it came to the Iraq War Logs, WikiLeaks took even more stringent precautions to redact the names of informants. John Sloboda of the Iraq Body Count testified during the original extradition hearing how his organization developed a computer program for WikiLeaks to redact informants’ names in the four hundred thousand pages of documents. Wikileaks were so insistent on redactions, it annoyed their partners in the mainstream media, who were upset it was slowing down publications. Another WikiLeaks media partner, Italian investigative journalist Stefania Maurizi, also testified that the precautions were the strictest she had ever encountered as a journalist, noting that not even her colleagues working on stories about the Italian mafia had ever adopted such strict security protocols.
By point of historical comparison, the copies of the Pentagon Papers given by Daniel Ellsberg to the media did contain unredacted names of intelligence sources and even a CIA officer. Ellsberg believed — correctly — that the public interest in releasing the Pentagon Papers outweighed these concerns.
When a breakdown in security occurred, it was not WikiLeaks but their media partners who caused it. With the State Department documents, WikiLeaks continued its policy of strict redactions to protect informants and tight information security. A Guardian reporter published the password to the encrypted files as a chapter title in his book. This set off a series of convoluted events whereby individuals online were able to access the entire document set. Assange and WikiLeaks notified the State Department, but its officials showed no interest in engaging with him.
Only after other websites published the complete, unredacted State Department cables did WikiLeaks follow suit. None of these publishers have been indicted under the Espionage Act, even though the editor of Cryptome, the first site to publish the unredacted cables, has taken the unusual step of asking the government to indict him. If the government was concerned solely with informants’ names, it would have pursued those who first published them.
The court found that because the US First Amendment so closely resembles Article 10 of the European Convention of Human Rights that its existence and Assange’s ability to rely on it means Assange’s extradition doesn’t violate Article 10. This, of course, depends on the United States not arguing Assange has no First Amendment rights.
On other political expression grounds, the High Court also denied Assange the right to appeal on the basis that he was persecuted for his political opinions or that he was being extradited for a political offense. The US-UK Extradition treaty bars extradition for political offenses, but a 2003 UK extradition law omits the language. According to the High Court that means judges cannot weigh the issue. By this logic, a judge must order an extradition that clearly contravenes the language of the treaty.
Attempted Murder
The other issue that most alarmed the judges during February’s hearings was the lack of death penalty assurances. None of the charges against Assange carry the death penalty. Although it is not impossible that the United States could pursue new death penalty charges, it is a very remote possibility. During February’s hearing, Assange’s defense outlined several scenarios under which the United States could pursue death penalty charges. When British prosecutors, who under UK extradition law represent the United States in court during extradition proceedings, were asked about this, they asserted the defense’s theories were correct. They further stated that under such a circumstance, the UK government would be powerless to stop the United States.
UK law forbids the government from extraditing someone if they might face the death penalty. The law here is clear-cut. As a result, it is unsurprising that the High Court granted Assange the right to appeal on the death penalty.
While the Court showed concern about the death penalty, it was shockingly indifferent to the US government’s extrajudicial plots on Assange’s life. The High Court expressly prohibited Assange from raising fresh evidence about CIA plots to assassinate or kidnap him during a potential appeal. During the original extradition hearing, the court heard from multiple witnesses from Spanish security contractor UC Global. The witnesses detailed how the company spied on Assange and plotted to kidnap or poison him. In their belief, these actions were taken at the behest of the CIA. These allegations are the subject of a criminal investigation in Spain.
Since the original hearing, Yahoo! News reported on the existence of CIA plots against Assange, including how the CIA considered (but ruled out) assassinating Assange. Whereas the hearing testimony had come from UC Global employees, the Yahoo! News report was based on insiders within the US government.
Assange’s defense has correctly asserted that this is further proof of the assassination plot against him. The UK High Court doesn’t reject this; it just doesn’t care. Their reasoning for denying fresh evidence is precisely because this “fresh evidence is similar to the evidence that was before the judge.” The judges admit they find the evidence presented credible, and that it “is of the utmost seriousness.”
If the plot to assassinate Assange was “connected to his extradition,” it would be a barrier to his extradition. Yet the High Court agreed that it wasn’t an issue, on the most absurd reasoning. “Extradition would result in him being lawfully in the custody of the United States authorities,” the Court wrote, “and the reasons (if they can be called that) for rendition or kidnap or assassination then fall away.” Thus it is okay to extradite Assange to the country that plotted to murder him.
And the judges do not want to hear anything more about the plots against him.
Empty Assurances
Although Assange has been granted leave to appeal on these extremely narrow grounds, an appeal might not happen. The High Court has granted leave to appeal only if the United States does not offer additional assurances. If the United States can guarantee that Assange “is permitted to rely on the First Amendment,” that the case against Assange is not prejudiced at trial (including sentencing) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen, and that the death penalty will not be imposed, then there will be no appeal, as long as the court finds the assurances satisfactory (Assange’s lawyers will have the right to challenge the assurances).
Most of the assurances are fairly straightforward. Given that the United States is not seeking the death penalty against Assange and has given similar assurances not to seek the death penalty against Edward Snowden in the past, it seems likely it will comply.
The most complicated assurance to parse is what it means for Assange to be able to “rely on the First Amendment.” In a criminal trial, the First Amendment would come into play in a number of ways. The defense can challenge a statute as either being unconstitutional in and of itself, or argue that although a statute itself is constitutional, its application in a specific case is unconstitutional. Often in criminal trials, the defense will mount both arguments: the statute is unconstitutional and should be struck down in its entirety, but even if it is constitutional, in this case it is being applied in an unconstitutional manner. In the US legal system, such questions are considered questions of law for a judge, not a jury, to decide.
Additionally, even if a statute or specific charge isn’t dismissed, the defense could argue that if the government wishes to convict Assange for pure speech, it must prove a high degree of intent. Such a requirement would be reflected in any instructions the judge gave the jury on what the government must prove beyond a reasonable doubt to convict Assange.
Unless a US trial takes place, we do not know what Assange’s lawyers will or will not argue. However, given the fact that Assange and his legal team have always stressed the press freedom and free expression issues with his prosecution, it doesn’t require clairvoyance or even a bold prediction to suggest that they will probably fight the prosecution on the basis of the First Amendment.
Assange is the first publisher indicted under the Espionage Act. But in the past, government insiders who acted as whistleblowers or journalists’ sources have been indicted. Citing the First Amendment, they have moved to have their charges dismissed outright or argued that the government must prove the defendant had a “a specific intent or evil purpose.” In all of these cases, courts have rejected these arguments, absurdly finding there are no First Amendment issues with prosecuting government employees who aided in news gathering.
As a publisher, not a whistleblower, Assange’s case is different. But the question arises: Would the UK High Court believe the aforementioned defendants were able to “rely” on the First Amendment? The government did not challenge whether the defendants had First Amendment rights, but instead argued the First Amendment did not protect their whistleblowing. They were able to raise First Amendment arguments, but judges rejected them.
In my reading of the UK High Court’s decision, it only requires a US court to take into account the First Amendment, not rule that it protects Assange’s clear journalistic activity. When denying the bulk of Assange’s free expression arguments, the court ruled the judges were making their findings on the assumption that, contrary to Kromberg’s declaration, Assange would have the same rights as a US citizen. Only when dealing with the potential that Assange would be granted no protections as a foreign national did the court find a problem. In his declaration, Kromberg mentioned other potential arguments that the government would raise in response to Assange’s potential First Amendment claims. Not only did the UK High Court not object to them, the judges mimicked them in their own dismal finding that the charges against Assange didn’t pose a threat to his free expression rights.
A cynical interpretation is that the UK High Court was ready and willing to rubber-stamp the persecution of a journalist for exposing war crimes. The unnecessary comments of Kromberg that the government may argue Assange lacked First Amendment rights as a foreign national and UK prosecutors’ bumbling replies to questions about the death penalty made it impossible for them to do so. Now, with the request for assurances, its judges are instructing United States and UK prosecutors on what they must say in order to make the extradition succeed.
Global Stakes
Any day Assange is granted another chance to fight for his life, his personal freedom, and the rights of press freedom and free expression is ultimately a good day. But the UK High Court’s decision, while not the worst scenario, is deeply disturbing. In granting Assange only the most limited appeal rights, they deliberately closed their eyes to the press freedom issues at stake and showed a grotesque indifference to Assange’s basic human rights. The invitation for the United States to grant assurances to prevent an appeal also is troubling.
There are dire human stakes to Assange’s case. But his case is ultimately bigger than just one person. Global press freedom rights are at stake. For those who do not wish to live in a world where journalists can be whisked across borders so that the governments whose crimes they exposed can put them on trial, the situation could not be more urgent.
UK Court Gives Biden Chance to Dodge Assange Appeal by “Assuring” His Rights
Julian Assange, 2014. CancillerÃa del Ecuador, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons
On March 26, 2022, the UK High Court issued a decision about whether journalist Julian Assange could appeal his extradition to the United States. The United States is seeking to put the WikiLeaks founder and Australian journalist on trial for exposing US war crimes and abuses of power. After a nearly five-year legal process, during which a UK judge blocked Assange’s extradition only for a higher court to reverse, the UK High Court in February held two days of hearings on whether Assange had the right to appeal his extradition on a myriad of grounds, including press freedom and free expression concerns. Had the court rejected Assange’s right to appeal, it would have foreclosed any further options for the journalist to fight his extradition before the UK judiciary.
During two days of hearings in February, the British judges presiding over the case seemed to express concern about the possibility that the United States could argue Assange lacked First Amendment rights as a foreign national and the United States’ lack of assurances that it would not seek the death penalty against him. As a result, unsurprisingly, they granted Assange the right to appeal based on these issues.
While the UK High Court has halted Assange’s extradition for now, there is grave cause for alarm. Assange’s lawyers sought to appeal the extradition on nine separate grounds. The UK High Court granted limited appeal rights on three very narrow grounds. In doing so, it dismissed the bulk of Assange’s serious free expression arguments.
It is these concerns that have led press freedom and human rights groups, mainstream newspapers, and even the United Nations special rapporteur on freedom of expression to oppose Assange’s prosecution. In spite of the global outcry about how this case imperils press freedom rights, the UK High Court seemed unable or unwilling to recognize the grave press freedom issues at stake.
On top of that, the court has allowed the United States to potentially sidestep an appeal altogether if it offers assurances that it will not seek the death penalty against Assange or deny him First Amendment rights based on his nationality. This would be the second time in this convoluted legal process that the United States has been allowed to rescue its defective extradition request by granting assurances.
The worst-case scenario for Assange has not yet come true. But ultimately the court’s ruling is a grim one for press freedom.
Security and Speech
Two of the grounds of appeal granted to Assange center on concerns that Assange could be denied First Amendment rights because he is a foreign national. Such a situation would both see Assange subjected to prejudice based on his nationality and deprived of any free expression rights. This fear was not concocted out of thin air. It is based on the statements the lead US prosecutor voluntarily submitted to the UK judiciary.
Throughout the extradition proceeding, US Attorney Gordon Kromberg, the lead prosecutor in the case, has provided the court with a number of sworn declarations. Kromberg is a notorious figure. He has been accused of politically motivated prosecutions and bias against Muslims. In addition to leading the Assange prosecution, he also prosecuted drone whistleblower Daniel Hale. I was present in court for Hale’s sentencing, and Kromberg’s animosity for the courageous whistleblower was clear: at one point, Kromberg compared Hale to a heroin dealer.
The goal of Kromberg’s declarations is to show that Assange’s case is not political, and that Assange would be treated fairly in a US court. To illustrate this point, in a June 2020 declaration, Kromberg argued that if Assange were to be extradited to the United States, he would have the opportunity to challenge the indictment before “independent federal judges.” Kromberg preemptively listed out the types of challenges Assange and his defense team may make. They could argue, according to Kromberg, that Assange was the victim of selective prosecution, that his conduct was protected by the First Amendment, and that the Espionage Act is unconstitutionally vague.
As the lead prosecutor in this and other Espionage Act cases, Kromberg wanted to make clear that “the United States has arguments against these potential challenges to the superseding indictment, and does not believe that they would have any merit; otherwise, it would not have proceeded with the charges.” One such defense? Kromberg wrote, “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”
The intent of Kromberg’s declaration was to show how Assange would receive fair treatment in the United States, thus paving the way for his extradition. By stating the US government might attempt to deprive him of fundamental human rights protections on the basis that he wasn’t a US citizen, the veteran national security prosecutor achieved the opposite result.
The UK Court granted Assange two separate potential points of appeal based on Kromberg’s blunder. First, Assange can appeal on the grounds that he would be subjected to prejudicial treatment as a foreign national. Second, if the First Amendment may not apply to Assange, Assange can appeal the extradition on the basis that it violates the Article 10 of the European Convention on Human Rights guarantee of free expression.
When it comes to Article 10’s right to free expression, Assange’s defense proffered a much wider, more robust range of arguments. They argued that Assange exposed war crimes and faces prosecution for doing so. Under European human rights law, they also argued, Chelsea Manning is a whistleblower, and those who expose state criminality deserve protections.
Assange was only granted the right to appeal based on Article 10 in relation to Kromberg’s comments. When it comes to the broad issue of whether prosecuting a journalist for reporting on war crimes revealed by a whistleblower is a flagrant violation of free expression rights, the UK High Court denied Assange’s right to appeal. In doing so, it displayed a shocking contempt for journalism.
The court argued that the European Court of Human Rights rulings “do not support the proposition advanced by the applicant that whistle-blowers or journalists have an immunity from prosecution in respect of criminal conduct in the course of journalistic activities.” This statement is, of course, at face value, true. Yet saying a journalist cannot commit crimes is different than criminalizing journalism itself.
The UK High Court seems to find little about the Assange prosecution troubling from a free expression perspective. Assange faces eighteen felony counts. Seventeen of the counts were brought under the Espionage Act and concern information given to WikiLeaks by whistleblower Manning about war crimes and abuses of power. Press freedom and human rights groups have been universal in their rejection of the Espionage Act charges.
Yet according to the UK High Court, only three of the charges brought against Assange “directly concern freedom of expression.” The remaining fifteen allegations “are of what may be described as ordinary criminal offences.” Of the charges where the court found a free expression nexus — publishing the Iraq and Afghanistan significant activity reports and the State Department cables — the Court argued that since these documents contained the names of individuals who shared information with the US government, there was no strong public interest in publishing them.
The UK High Court accepted, based on declarations from Kromberg, that in prosecuting Assange for three of the most consequential and groundbreaking publications about US foreign policy in history — the Afghan War Diary, the Iraq War Logs, and Cablegate — the United States is really pursuing a narrow interest in protecting the safety of foreigners who share information with the United States.
This analysis is glaringly wrong for a number of reasons. These publications, which major newspapers around the world participated in, absolutely were in the public interest. There is no evidence from anyone, including the US military, that any harm was done to anyone as a result of these publications, which were clearly in the public interest.
And Assange and WikiLeaks were far from reckless. Multiple media partners testified during the initial extradition hearing about WikiLeaks’s stringent redaction and larger information security policies. John Goetz, an investigative journalist who represented Der Spiegel in their media partnership with WikiLeaks, explained that while working on the Afghan War Diary, Assange agreed to vet documents for their potential to cause harm to individuals. WikiLeaks delayed the release of fifteen thousand pages of documents as part of a harm minimization process. Goetz described the security measures taken as the most stringent he ever encountered as a journalist.
When it came to the Iraq War Logs, WikiLeaks took even more stringent precautions to redact the names of informants. John Sloboda of the Iraq Body Count testified during the original extradition hearing how his organization developed a computer program for WikiLeaks to redact informants’ names in the four hundred thousand pages of documents. Wikileaks were so insistent on redactions, it annoyed their partners in the mainstream media, who were upset it was slowing down publications. Another WikiLeaks media partner, Italian investigative journalist Stefania Maurizi, also testified that the precautions were the strictest she had ever encountered as a journalist, noting that not even her colleagues working on stories about the Italian mafia had ever adopted such strict security protocols.
By point of historical comparison, the copies of the Pentagon Papers given by Daniel Ellsberg to the media did contain unredacted names of intelligence sources and even a CIA officer. Ellsberg believed — correctly — that the public interest in releasing the Pentagon Papers outweighed these concerns.
When a breakdown in security occurred, it was not WikiLeaks but their media partners who caused it. With the State Department documents, WikiLeaks continued its policy of strict redactions to protect informants and tight information security. A Guardian reporter published the password to the encrypted files as a chapter title in his book. This set off a series of convoluted events whereby individuals online were able to access the entire document set. Assange and WikiLeaks notified the State Department, but its officials showed no interest in engaging with him.
Only after other websites published the complete, unredacted State Department cables did WikiLeaks follow suit. None of these publishers have been indicted under the Espionage Act, even though the editor of Cryptome, the first site to publish the unredacted cables, has taken the unusual step of asking the government to indict him. If the government was concerned solely with informants’ names, it would have pursued those who first published them.
The court found that because the US First Amendment so closely resembles Article 10 of the European Convention of Human Rights that its existence and Assange’s ability to rely on it means Assange’s extradition doesn’t violate Article 10. This, of course, depends on the United States not arguing Assange has no First Amendment rights.
On other political expression grounds, the High Court also denied Assange the right to appeal on the basis that he was persecuted for his political opinions or that he was being extradited for a political offense. The US-UK Extradition treaty bars extradition for political offenses, but a 2003 UK extradition law omits the language. According to the High Court that means judges cannot weigh the issue. By this logic, a judge must order an extradition that clearly contravenes the language of the treaty.
Attempted Murder
The other issue that most alarmed the judges during February’s hearings was the lack of death penalty assurances. None of the charges against Assange carry the death penalty. Although it is not impossible that the United States could pursue new death penalty charges, it is a very remote possibility. During February’s hearing, Assange’s defense outlined several scenarios under which the United States could pursue death penalty charges. When British prosecutors, who under UK extradition law represent the United States in court during extradition proceedings, were asked about this, they asserted the defense’s theories were correct. They further stated that under such a circumstance, the UK government would be powerless to stop the United States.
UK law forbids the government from extraditing someone if they might face the death penalty. The law here is clear-cut. As a result, it is unsurprising that the High Court granted Assange the right to appeal on the death penalty.
While the Court showed concern about the death penalty, it was shockingly indifferent to the US government’s extrajudicial plots on Assange’s life. The High Court expressly prohibited Assange from raising fresh evidence about CIA plots to assassinate or kidnap him during a potential appeal. During the original extradition hearing, the court heard from multiple witnesses from Spanish security contractor UC Global. The witnesses detailed how the company spied on Assange and plotted to kidnap or poison him. In their belief, these actions were taken at the behest of the CIA. These allegations are the subject of a criminal investigation in Spain.
Since the original hearing, Yahoo! News reported on the existence of CIA plots against Assange, including how the CIA considered (but ruled out) assassinating Assange. Whereas the hearing testimony had come from UC Global employees, the Yahoo! News report was based on insiders within the US government.
Assange’s defense has correctly asserted that this is further proof of the assassination plot against him. The UK High Court doesn’t reject this; it just doesn’t care. Their reasoning for denying fresh evidence is precisely because this “fresh evidence is similar to the evidence that was before the judge.” The judges admit they find the evidence presented credible, and that it “is of the utmost seriousness.”
If the plot to assassinate Assange was “connected to his extradition,” it would be a barrier to his extradition. Yet the High Court agreed that it wasn’t an issue, on the most absurd reasoning. “Extradition would result in him being lawfully in the custody of the United States authorities,” the Court wrote, “and the reasons (if they can be called that) for rendition or kidnap or assassination then fall away.” Thus it is okay to extradite Assange to the country that plotted to murder him.
And the judges do not want to hear anything more about the plots against him.
Empty Assurances
Although Assange has been granted leave to appeal on these extremely narrow grounds, an appeal might not happen. The High Court has granted leave to appeal only if the United States does not offer additional assurances. If the United States can guarantee that Assange “is permitted to rely on the First Amendment,” that the case against Assange is not prejudiced at trial (including sentencing) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen, and that the death penalty will not be imposed, then there will be no appeal, as long as the court finds the assurances satisfactory (Assange’s lawyers will have the right to challenge the assurances).
Most of the assurances are fairly straightforward. Given that the United States is not seeking the death penalty against Assange and has given similar assurances not to seek the death penalty against Edward Snowden in the past, it seems likely it will comply.
The most complicated assurance to parse is what it means for Assange to be able to “rely on the First Amendment.” In a criminal trial, the First Amendment would come into play in a number of ways. The defense can challenge a statute as either being unconstitutional in and of itself, or argue that although a statute itself is constitutional, its application in a specific case is unconstitutional. Often in criminal trials, the defense will mount both arguments: the statute is unconstitutional and should be struck down in its entirety, but even if it is constitutional, in this case it is being applied in an unconstitutional manner. In the US legal system, such questions are considered questions of law for a judge, not a jury, to decide.
Additionally, even if a statute or specific charge isn’t dismissed, the defense could argue that if the government wishes to convict Assange for pure speech, it must prove a high degree of intent. Such a requirement would be reflected in any instructions the judge gave the jury on what the government must prove beyond a reasonable doubt to convict Assange.
Unless a US trial takes place, we do not know what Assange’s lawyers will or will not argue. However, given the fact that Assange and his legal team have always stressed the press freedom and free expression issues with his prosecution, it doesn’t require clairvoyance or even a bold prediction to suggest that they will probably fight the prosecution on the basis of the First Amendment.
Assange is the first publisher indicted under the Espionage Act. But in the past, government insiders who acted as whistleblowers or journalists’ sources have been indicted. Citing the First Amendment, they have moved to have their charges dismissed outright or argued that the government must prove the defendant had a “a specific intent or evil purpose.” In all of these cases, courts have rejected these arguments, absurdly finding there are no First Amendment issues with prosecuting government employees who aided in news gathering.
As a publisher, not a whistleblower, Assange’s case is different. But the question arises: Would the UK High Court believe the aforementioned defendants were able to “rely” on the First Amendment? The government did not challenge whether the defendants had First Amendment rights, but instead argued the First Amendment did not protect their whistleblowing. They were able to raise First Amendment arguments, but judges rejected them.
In my reading of the UK High Court’s decision, it only requires a US court to take into account the First Amendment, not rule that it protects Assange’s clear journalistic activity. When denying the bulk of Assange’s free expression arguments, the court ruled the judges were making their findings on the assumption that, contrary to Kromberg’s declaration, Assange would have the same rights as a US citizen. Only when dealing with the potential that Assange would be granted no protections as a foreign national did the court find a problem. In his declaration, Kromberg mentioned other potential arguments that the government would raise in response to Assange’s potential First Amendment claims. Not only did the UK High Court not object to them, the judges mimicked them in their own dismal finding that the charges against Assange didn’t pose a threat to his free expression rights.
A cynical interpretation is that the UK High Court was ready and willing to rubber-stamp the persecution of a journalist for exposing war crimes. The unnecessary comments of Kromberg that the government may argue Assange lacked First Amendment rights as a foreign national and UK prosecutors’ bumbling replies to questions about the death penalty made it impossible for them to do so. Now, with the request for assurances, its judges are instructing United States and UK prosecutors on what they must say in order to make the extradition succeed.
Global Stakes
Any day Assange is granted another chance to fight for his life, his personal freedom, and the rights of press freedom and free expression is ultimately a good day. But the UK High Court’s decision, while not the worst scenario, is deeply disturbing. In granting Assange only the most limited appeal rights, they deliberately closed their eyes to the press freedom issues at stake and showed a grotesque indifference to Assange’s basic human rights. The invitation for the United States to grant assurances to prevent an appeal also is troubling.
There are dire human stakes to Assange’s case. But his case is ultimately bigger than just one person. Global press freedom rights are at stake. For those who do not wish to live in a world where journalists can be whisked across borders so that the governments whose crimes they exposed can put them on trial, the situation could not be more urgent.
UK Court Gives Biden Chance to Dodge Assange Appeal by “Assuring” His Rights
The WikiLeaks publisher could be extradited if the US gives “satisfactory assurances” of rights and no death penalty.
March 30, 2024
Source: Truthout
Image by Duncan Cumming via Flickr
WikiLeaks publisher Julian Assange is closer than ever to being extradited to the United States for trial on 17 counts under the Espionage Act and one count of conspiracy to commit computer intrusion over WikiLeaks’s 2010-2011 revelation of evidence of U.S. war crimes in Iraq, Afghanistan and Guantánamo Bay. He faces 175 years in prison.
“This is a signal to all of you that if you expose the interests that are driving war they will come after you, they will put you in prison and they will try to kill you,” said Stella Assange, Julian’s wife, of his prosecution.
On March 26, the United Kingdom Divisional Court denied Assange the opportunity to make most of his appellate arguments. But the two-judge panel of Justice Jeremy Johnson and Dame Victoria Sharp left open the possibility that Assange could appeal on three grounds. They found that Assange “has a real prospect of success” on the following issues: If extradited to the U.S., he will be denied the right to freedom of expression, will suffer discrimination because he’s not a U.S. citizen and could be sentenced to death.
Rather than simply allowing Assange to argue the three issues on appeal, however, the panel gave the Biden administration an out. If the U.S. provides the court with “satisfactory assurances” that Assange won’t be denied any of these rights, his extradition to the U.S. can proceed without an appeals hearing.
Stella Assange called the decision “astounding,” adding, “The court’s recognized that Julian has been exposed to flagrant denial of his freedom of expression rights, that he is being discriminated against on the basis of his nationality and that he remains exposed to the death penalty.”
At an earlier stage in this case, the U.S. gave the U.K. High Court “assurances” that Assange would be treated humanely if extradited. That caused the court to reverse the magistrate judge’s denial of extradition (which was based on the likelihood of suicide if Assange is held in harsh U.S. confinement). The High Court accepted those assurances at face value in spite of the U.S.’s history of reneging on similar assurances.
The current ruling, however, requires U.S. assurances to be “satisfactory” and the defense will have an opportunity to challenge them at a hearing.
“Mr. Assange will not, therefore, be extradited immediately,” the panel wrote, implying that if they had denied his appeal outright, the U.K. authorities would put him on a plane to the U.S. forthwith. They gave the U.S. three weeks to come forward with satisfactory assurances.
If the U.S. fails to provide any assurances, Assange will be granted a hearing on the three grounds. If the U.S. does give assurances, a hearing to decide whether they are satisfactory will occur on May 20.
“The Biden administration should not offer assurances. They should drop this shameful case that should never have been brought,” Stella Assange said.
These are the grounds the High Court will review if the U.S. fails to provide “satisfactory assurances”:
1. Extradition Would Violate Freedom of Expression Guaranteed by Article 10 of European Convention on Human Rights
Assange would argue at trial that his actions were protected by the First Amendment to the U.S. Constitution. “He contends that if he is given First Amendment rights, the prosecution will be stopped. The First Amendment is therefore of central importance to his defence,” the panel concluded.
The First Amendment provides “strong protection” to freedom of expression, similar to that provided by Article 10 of the European Convention on Human Rights, the panel noted. Article 10 (1) of the convention says, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Gordon Kromberg, assistant U.S. attorney in the Eastern District of Virginia, where Assange’s trial would be held, said the prosecution might argue at trial that “foreign nationals are not entitled to protections under the First Amendment,” the panel noted. In 2017, then-CIA Director Mike Pompeo said that Assange “has no First Amendment freedoms” because “he is not a U.S. citizen.”
In addition, the U.S. Supreme Court ruled in the 2020 case of Agency for International Development v. Alliance for Open Society International that “it is long settled as a matter of American constitutional law that foreign citizens outside United States territory do not possess rights under the US Constitution.”
The panel wrote that if Assange “is not permitted to rely on the First Amendment, then it is arguable that his extradition would be incompatible with article 10 of the Convention.”
But even if the U.S. Department of Justice prosecutors give “satisfactory assurances” that Assange’s First Amendment rights would be protected, that is no guarantee. Prosecutors are part of the executive branch, which cannot bind the judicial branch due to the constitutional doctrine of separation of powers.
“The ruling reveals that the High Court does not understand the American system of government,” Stephen Rohde, who practiced First Amendment law for almost 50 years and writes extensively about the Assange case, told Truthout. “It only has before it the executive branch of the U.S. government. Whatever ‘satisfactory assurances’ the Department of Justice may give the High Court, they are not binding on the judicial branch.”
Moreover, Rohde said, “The High Court is obligated to uphold Assange’s rights to ‘freedom of expression’ under Article 10 of the European Convention on Human Rights, which protects Assange even if the U.S. courts refuse to do so. The only way to do that is to deny extradition.”
2. The U.K. Extradition Act Forbids Discrimination Based on Nationality
Julian Assange is an Australian citizen who would be tried in the U.S. if the Biden administration’s pursuit of extradition is successful.
Section 81(b) of the U.K. Extradition Act says that extradition is barred for an individual who “might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his … nationality.”
Due to the centrality of the First Amendment to Assange’s defense, the panel noted, “If he is not permitted to rely on the First Amendment because of his status as a foreign national, he will thereby be prejudiced (potentially very greatly prejudiced) by reason of his nationality.”
3. Extradition Is Barred by Inadequate Death Penalty Protection Required by the Extradition Act
Section 94 of the U.K. Extradition Act says, “The Secretary of State must not order a person’s extradition … if he could be, will be or has been sentenced to death for the offence” in the receiving state. That limitation does not apply if a written “assurance” that is “adequate” says “that a sentence of death- (a) will not be imposed, or (b) will not be carried out (if imposed).”
None of the charges that Assange is currently facing carry the death penalty. But if extradited to the U.S., he could be charged with aiding and abetting treason or espionage, both of which are capital offenses.
Ben Watson KC, secretary of state for the Home Department, admitted that:
a.) The facts alleged against [Assange] could sustain a charge of aiding or abetting treason, or espionage.
b.) If [Assange] is extradited, there is nothing to prevent a charge of aiding or abetting treason, or a charge of espionage, from being added to the indictment.
c.) The death penalty is available on conviction for aiding or abetting treason, or espionage.
d.) There are no arrangements in place to prevent the imposition of the death penalty.
e.) The existing assurance does not explicitly prevent the imposition of the death.
The panel noted that when former President Donald Trump was asked about WikiLeaks publishing the leaked documents, he said, “I think it was disgraceful…. I think there should be like a death penalty or something.” If Trump is reelected, he may seek to ensure that his Justice Department adds capital charges to the indictment.
In concluding that Assange could raise this issue on appeal subject to “satisfactory assurances,” the panel cited “the potential, on the facts, for capital charges to be laid; the calls for the imposition of the death penalty by leading politicians and other public figures; the fact that the Treaty does not preclude extradition for death penalty charges, and the fact that the existing assurance does not explicitly cover the death penalty.”
Appeal Grounds Denied by Panel
Remaining grounds for appeal that Assange requested were denied by the panel. They include prosecution for a political offense, prosecution based on political opinion; violation of right to a fair trial; violation of right to life; and violation of right to be free from torture and inhuman or degrading treatment or punishment. In addition, since no publisher has ever been prosecuted under the Espionage Act for publishing government secrets, Assange could not have known it was a crime.
The panel also ruled that Assange could not introduce new evidence adduced after the magistrate judge’s ruling. This includes a Yahoo News report detailing the CIA’s plan to kidnap and kill Assange when he was living under a grant of asylum in the Ecuadorian Embassy in London.
If the U.S. offers “satisfactory assurances” and extradition is ordered, Assange could appeal to the European Court of Human Rights and raise these additional issues as well.
Meanwhile, there is a possibility that instead of filing “assurances,” the Biden administration will opt to avoid the political pitfalls of Assange’s extradition to the U.S. and offer a plea bargain to end the case.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. A prominent scholar and lecturer, her books include Cowboy Republic: Six Ways the Bush Gang Has Defied the Law; and Drones and Targeted Killing: Legal, Moral and Geopolitical Issues She provides commentary for local, regional, national and international media and is co-host of “Law and Disorder” radio.
Image by Duncan Cumming via Flickr
WikiLeaks publisher Julian Assange is closer than ever to being extradited to the United States for trial on 17 counts under the Espionage Act and one count of conspiracy to commit computer intrusion over WikiLeaks’s 2010-2011 revelation of evidence of U.S. war crimes in Iraq, Afghanistan and Guantánamo Bay. He faces 175 years in prison.
“This is a signal to all of you that if you expose the interests that are driving war they will come after you, they will put you in prison and they will try to kill you,” said Stella Assange, Julian’s wife, of his prosecution.
On March 26, the United Kingdom Divisional Court denied Assange the opportunity to make most of his appellate arguments. But the two-judge panel of Justice Jeremy Johnson and Dame Victoria Sharp left open the possibility that Assange could appeal on three grounds. They found that Assange “has a real prospect of success” on the following issues: If extradited to the U.S., he will be denied the right to freedom of expression, will suffer discrimination because he’s not a U.S. citizen and could be sentenced to death.
Rather than simply allowing Assange to argue the three issues on appeal, however, the panel gave the Biden administration an out. If the U.S. provides the court with “satisfactory assurances” that Assange won’t be denied any of these rights, his extradition to the U.S. can proceed without an appeals hearing.
Stella Assange called the decision “astounding,” adding, “The court’s recognized that Julian has been exposed to flagrant denial of his freedom of expression rights, that he is being discriminated against on the basis of his nationality and that he remains exposed to the death penalty.”
At an earlier stage in this case, the U.S. gave the U.K. High Court “assurances” that Assange would be treated humanely if extradited. That caused the court to reverse the magistrate judge’s denial of extradition (which was based on the likelihood of suicide if Assange is held in harsh U.S. confinement). The High Court accepted those assurances at face value in spite of the U.S.’s history of reneging on similar assurances.
The current ruling, however, requires U.S. assurances to be “satisfactory” and the defense will have an opportunity to challenge them at a hearing.
“Mr. Assange will not, therefore, be extradited immediately,” the panel wrote, implying that if they had denied his appeal outright, the U.K. authorities would put him on a plane to the U.S. forthwith. They gave the U.S. three weeks to come forward with satisfactory assurances.
If the U.S. fails to provide any assurances, Assange will be granted a hearing on the three grounds. If the U.S. does give assurances, a hearing to decide whether they are satisfactory will occur on May 20.
“The Biden administration should not offer assurances. They should drop this shameful case that should never have been brought,” Stella Assange said.
These are the grounds the High Court will review if the U.S. fails to provide “satisfactory assurances”:
1. Extradition Would Violate Freedom of Expression Guaranteed by Article 10 of European Convention on Human Rights
Assange would argue at trial that his actions were protected by the First Amendment to the U.S. Constitution. “He contends that if he is given First Amendment rights, the prosecution will be stopped. The First Amendment is therefore of central importance to his defence,” the panel concluded.
The First Amendment provides “strong protection” to freedom of expression, similar to that provided by Article 10 of the European Convention on Human Rights, the panel noted. Article 10 (1) of the convention says, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Gordon Kromberg, assistant U.S. attorney in the Eastern District of Virginia, where Assange’s trial would be held, said the prosecution might argue at trial that “foreign nationals are not entitled to protections under the First Amendment,” the panel noted. In 2017, then-CIA Director Mike Pompeo said that Assange “has no First Amendment freedoms” because “he is not a U.S. citizen.”
In addition, the U.S. Supreme Court ruled in the 2020 case of Agency for International Development v. Alliance for Open Society International that “it is long settled as a matter of American constitutional law that foreign citizens outside United States territory do not possess rights under the US Constitution.”
The panel wrote that if Assange “is not permitted to rely on the First Amendment, then it is arguable that his extradition would be incompatible with article 10 of the Convention.”
But even if the U.S. Department of Justice prosecutors give “satisfactory assurances” that Assange’s First Amendment rights would be protected, that is no guarantee. Prosecutors are part of the executive branch, which cannot bind the judicial branch due to the constitutional doctrine of separation of powers.
“The ruling reveals that the High Court does not understand the American system of government,” Stephen Rohde, who practiced First Amendment law for almost 50 years and writes extensively about the Assange case, told Truthout. “It only has before it the executive branch of the U.S. government. Whatever ‘satisfactory assurances’ the Department of Justice may give the High Court, they are not binding on the judicial branch.”
Moreover, Rohde said, “The High Court is obligated to uphold Assange’s rights to ‘freedom of expression’ under Article 10 of the European Convention on Human Rights, which protects Assange even if the U.S. courts refuse to do so. The only way to do that is to deny extradition.”
2. The U.K. Extradition Act Forbids Discrimination Based on Nationality
Julian Assange is an Australian citizen who would be tried in the U.S. if the Biden administration’s pursuit of extradition is successful.
Section 81(b) of the U.K. Extradition Act says that extradition is barred for an individual who “might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his … nationality.”
Due to the centrality of the First Amendment to Assange’s defense, the panel noted, “If he is not permitted to rely on the First Amendment because of his status as a foreign national, he will thereby be prejudiced (potentially very greatly prejudiced) by reason of his nationality.”
3. Extradition Is Barred by Inadequate Death Penalty Protection Required by the Extradition Act
Section 94 of the U.K. Extradition Act says, “The Secretary of State must not order a person’s extradition … if he could be, will be or has been sentenced to death for the offence” in the receiving state. That limitation does not apply if a written “assurance” that is “adequate” says “that a sentence of death- (a) will not be imposed, or (b) will not be carried out (if imposed).”
None of the charges that Assange is currently facing carry the death penalty. But if extradited to the U.S., he could be charged with aiding and abetting treason or espionage, both of which are capital offenses.
Ben Watson KC, secretary of state for the Home Department, admitted that:
a.) The facts alleged against [Assange] could sustain a charge of aiding or abetting treason, or espionage.
b.) If [Assange] is extradited, there is nothing to prevent a charge of aiding or abetting treason, or a charge of espionage, from being added to the indictment.
c.) The death penalty is available on conviction for aiding or abetting treason, or espionage.
d.) There are no arrangements in place to prevent the imposition of the death penalty.
e.) The existing assurance does not explicitly prevent the imposition of the death.
The panel noted that when former President Donald Trump was asked about WikiLeaks publishing the leaked documents, he said, “I think it was disgraceful…. I think there should be like a death penalty or something.” If Trump is reelected, he may seek to ensure that his Justice Department adds capital charges to the indictment.
In concluding that Assange could raise this issue on appeal subject to “satisfactory assurances,” the panel cited “the potential, on the facts, for capital charges to be laid; the calls for the imposition of the death penalty by leading politicians and other public figures; the fact that the Treaty does not preclude extradition for death penalty charges, and the fact that the existing assurance does not explicitly cover the death penalty.”
Appeal Grounds Denied by Panel
Remaining grounds for appeal that Assange requested were denied by the panel. They include prosecution for a political offense, prosecution based on political opinion; violation of right to a fair trial; violation of right to life; and violation of right to be free from torture and inhuman or degrading treatment or punishment. In addition, since no publisher has ever been prosecuted under the Espionage Act for publishing government secrets, Assange could not have known it was a crime.
The panel also ruled that Assange could not introduce new evidence adduced after the magistrate judge’s ruling. This includes a Yahoo News report detailing the CIA’s plan to kidnap and kill Assange when he was living under a grant of asylum in the Ecuadorian Embassy in London.
If the U.S. offers “satisfactory assurances” and extradition is ordered, Assange could appeal to the European Court of Human Rights and raise these additional issues as well.
Meanwhile, there is a possibility that instead of filing “assurances,” the Biden administration will opt to avoid the political pitfalls of Assange’s extradition to the U.S. and offer a plea bargain to end the case.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. A prominent scholar and lecturer, her books include Cowboy Republic: Six Ways the Bush Gang Has Defied the Law; and Drones and Targeted Killing: Legal, Moral and Geopolitical Issues She provides commentary for local, regional, national and international media and is co-host of “Law and Disorder” radio.
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