Assange’s appeal application
Tim Dawson, the IFJ’s deputy general secretary, reports on the WikiLeaks founder’s appeal against extradition to the United States.
Julian Assange’s plea for leave to appeal his extradition to the United States provided cause for both hope and concern. Heard over two days in London’s Royal Courts of Justice, on 20 and 21 February 2024, it could be the last time his case is considered by a European court.
Assange is fighting extradition to face 17 changes under the Espionage Act, and one of computer hacking. If convicted, he could be sentenced to 175 years in prison, albeit with some qualified commitments that he will not face the severest solitary confinement.
Assange has been held in Belmarsh prison on the outskirts of London awaiting the outcome of these proceedings for the past five years. His extradition hearings started exactly four years ago. There has been nearly six weeks of court sittings since then, and Assange has been present for almost every hour that his fate was under consideration. Four years ago, his engagement in the detail of the arguments was evident from his frequent interventions.
This time, however, ill health prevented him from appearing, even by video link. How serious is his condition is unknown. News that he recently broke a rib during a coughing fit suggests significant unwellness. His wife Stella’s faltering speech to the large group of supporters who gathered outside the court on the first day telegraphed the effects of unimaginable pressure.
Given the clinical assessments that have been heard before in court, it is hard to feel anything other than concern – a point well made by IFJ president Dominique Pradalié earlier this week.
Perhaps news of these proceedings themselves will provide a fillip?
Their purpose was to determine whether the bulk of the original arguments made against extradition, that were rejected by Judge Baraitser in the original hearing, merit reconsideration. Much of the case presented in court was a synopsis of that laid out in the original hearings. Assange’s legal team had not been optimistic when they learned that the case would be in the hands of Judges Victor Johnson and Dame Victoria Sharp. Some complained of an establishment stitch up.
It was Judge Johnson’s questioning, however, that swung the mood music.
The morning of the second day of the hearings was given over to barristers acting for the United States to make their case for immediate extradition. Over two and a half hours Clair Dobbin KC presented the arguments. Dobbin is a ferocious court-room performer, but on this occasion appeared to unravel – just a little.
She devoted much energy to arguing that Assange is not a ‘respectable’ journalist, because he had published the Iraq and Afghan War logs unreacted, unlike, say, the New York Times.
At this, Judge Johnson intervened. “But (Assange) was not the first to publish this material and the others have not been prosecuted,” he said.
This point forms a significant element of Assange’s case that he was being singled out for punishment. Although the classified material was originally leaked to WikiLeaks, a bizarre series of cock ups followed. It was nabbed by a rival leaks platform, Cryptome, which published the logs in full as WikiLeaks worked desperately to redact names from them. Cryptome’s publisher, an American who lives in New York City, has not been the subject of legal proceedings.
Dobbin’s retort was quick: “Cryptome couldn’t have published if Assange had not first obtained the leak.” From that moment on, however, her footings appeared less certain.
A little later she made the case that Assange would enjoy the protection of the First Amendment of the US constitution – the one that guarantees the right to free speech. Whether or not this offers protection to those who, like Assange, are not US citizens has been an issue of contention.
Judge Johnson intervened again. “Do we have any evidence that a foreign national is entitled to the same First Amendment rights as a US citizen,” he asked? After a yawning silence Dobbin conceded that: “I don’t think there was anything.”
A little later, in response to further questioning from the judge, Dobbin accepted that had Assange’s actions been directed at British classified material, then he would be liable to prosecution under the Official Secrets Act. This admission means that Assange is far more likely to be due protection under the European Convention on Human Rights – which in turn calls into question the Home Secretary’s decision to allow the extradition.
How much one should read into Judge Johnson’s inquiries is hard to know – but they suggest, if nothing else, that he is approaching the case with an open mind.
Much of the first day’s hearings were consumed with a dispute over the 2003 Extradition Treaty between the UK and the US. This contains a seemingly unambiguous clause that rules out extradition for “political offences”. In earlier hearings, the US has successfully argued that this apparent guarantee is meaningless, because it was not adopted into UK law, by Parliament. “Only Parliament can grant people rights,” has been the repeated assertion of James Lewis KC for the US.
Assange’s team came at this question from a slightly new angle. Edward Fitzgerald KC argued that such a protection was so long-standing, that it was akin to an ancient right. “For centuries, every extradition treaty this country has signed has included this provision,” he insisted. He said that it was preposterous that such a protection could be removed because various pieces of domestic legislation had been silent on the issue.
The closing statement on Assange’s behalf from Mark Summer KC provided a robust restatement of the concerns this case raises. Assange had revealed “state crimes”, the US is planning “state retribution” and finally this: “You can’t ignore what we all now know that (Trump) was plotting to kill (Mr Assange). This application is being treated as though it was issued in good faith while all the while the US was plotting to kill him.”
The judges retired and indicated that their decision will be at least a couple of weeks. In the meantime, Assange remains in jail and is, in the words of his lead counsel “ailing”. Much the best solution would be for the US to agree some kind a plea deal, as its diplomatic representatives have already indicated might be possible. Perhaps the prospect of the public laundering of so much dirty washing will sharpen minds in Washington’s Department of Justice?