UK Appeal Hearing: Assange & The 'Political Offense' Exception

Editor’s Note: The following was published as part of a “Countdown To Day X” series highlighting key aspects of WikiLeaks founder Julian Assange’s request to appeal his extradition to the United States.

The legal team for WikiLeaks founder Julian Assange contends that District Court Judge Vanessa Baraitser erred by failing to recognize that it was an “abuse of process” for the United States government to seek Assange’s extradition for political offenses. They hope the British High Court of Justice will reconsider this aspect of the case.

Individuals accused of treason, sedition, or espionage have historically been protected from extradition because those offenses involve acts directed at a particular government. Such offenses are viewed in international law as “pure political offenses” and not “ordinary crimes.”

Seventeen of the 18 charges against Assange allege that he violated the U.S. Espionage Act. The eighteenth charge accuses him of conspiracy to commit a computer intrusion.

Assange’s defense previously stated [PDF], “The indictment itself is framed to allege conduct whose objective was ‘to obtain receive and disclose national defense information’ and the repeated refrain is that the [intent or knowledge of wrongdoing] of Julian Assange was that ‘he had reason to believe that the information was to be used to the injury of the United States or the advantage of any foreign nation.’”

“The indictment further refers to the ‘shared philosophy of Julian Assange and [Chelsea] Manning’ and their ‘mission’ to disclose information to the public,” his defense added. “This necessarily is conduct directed against the existing apparatus of the state for political purposes. In this sense too, the allegations are of a ‘pure political offense.’"

But the Crown Prosecution Service (on behalf of the U.S. government) took the position that there is no political offense exception that may protect Assange from extradition. While there is an exception may be part of the extradition treaty between the U.S. and U.K., prosecutors emphasized that the exception was omitted when Britain’s Parliament passed the Extradition Act in 2003.

Baraitser sided with prosecutors. “The defense has not established that the 2003 U.K.-U.S. treaty confers rights on Mr. Assange which are enforceable in this court.” 

“[T]he nature of an extradition treaty,” is that it is “an agreement between governments which reflects their relationship for the purposes of extradition,” Baraitser asserted. “It is made between sovereign states on the proviso that it is not governed by the domestic law of either state.”

As Baraitser reasoned, “Parliament clearly took the decision to remove the political offenses bar, which had previously been available to those facing extradition.” But the district judge also noted that the “bar to extradition” for requests “made for the purpose of prosecuting the requested person on the basis of their political opinions” was kept in the law.

The law around political offenses was raised during a week-long hearing in February 2020. Edward Fitzgerald, an attorney for Assange, argued there could be no extradition request without a treaty. 

Fitzgerald raised the example of the extradition case against MI5 agent David Shayler. He was prosecuted under the U.K.’s Official Secrets Act of 1989 after he passed top secret documents to The Mail On Sunday in 1997. Shayler’s disclosures included “the names of agents who had been put in fear of their lives by his actions.”

A French Court of Appeals rejected extradition in 1998 because it was covered by the exception for political offenses.

But if there is no prohibition for purely political offenses, then Assange’s defense maintains that his conduct also falls into another category with exceptions: “relative political offenses,” or crimes committed by individuals with ideological motivations. 

“The conduct alleged against Mr Assange and indeed the motives expressly imputed to him, self-evidently confirm that his alleged offenses qualify as ‘relative’ political offenses because the alleged conduct was clearly intended to ‘effect a change in government policy,’ according to his defense. 

Of course, if the British High Court of Justice does not believe that pure political offenses or relevant political offenses are part of the extradition law that the U.K. must follow, then the court could still overturn the decision to extradite Assange by recognizing that he has been targeted for his “political opinions and political actions.”

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There was a glitch yesterday and free newsletter subscribers did not receive the story from The Dissenter on the CIA invoking "state secrets" to block a lawsuit by Americans who visited Assange. Here's that report (if you missed it).

Also, a big thanks to new donors and paid subscribers of The Dissenter. For further reading, here's where you may purchase a copy of my book, "Guilty of Journalism: The Political Case Against Julian Assange."