UK High Court Finally Hears Assange's Request For An Appeal

The United States government's prosecution of Julian Assange represents an attempt to punish Assange and WikiLeaks for exposing the criminality of the U.S. government on a “massive and unprecedented scale,” lawyers for the WikiLeaks publisher told two senior judges at the British High Court of Justice.

Crimes exposed by the WikiLeaks publications that are central to this case include “torture,” “[extraordinary] rendition,” and “drone strikes” that killed scores of civilians.

Assange is seeking permission to appeal District Judge Vanessa Baraitser’s extradition decision, which was issued in January 2021. Barristers Mark Summers KC and Edward Fitzgerald KC set out seven grounds for challenging the ruling.

Due to the limited time available, Assange’s defense lawyers focused on specific aspects of each grounds which they believed merited particular focus, with more detailed arguments provided in written submissions.

Assange’s defense argued the following:

1. the U.S.-U.K. extradition treaty clearly prohibits extradition for political offenses
2. the offenses Assange is prosecuted with, namely espionage, fall into the category of “pure” or “self-evident” political offenses;
3. it was an “abuse of process” for the U.S. to seek the extradition of Assange for political offenses;
4. extraditing Assange in violation of the extradition treaty “would result in detention which is arbitrary” and in violation of Article 5 of the European Convention on Human Rights (ECHR);
5. extradition would represent a “flagrant denial” of his right to freedom of speech under  Article 10 of the ECHR, including the possibility that he will be denied protections under the First Amendment of the US constitution
6. allowing Assange to be prosecuted under the U.S. Espionage Act, when no other journalist or publisher ever has been, violates his Article 7 right not to be prosecuted for acts which did not constitute offenses at the time of his actions
7. Assange would not receive a fair trial in the U.S.

Defense lawyers maintained that Baraitser had improperly interpreted the law and ignored key information that was brought to her attention.They also sought permission to introduce fresh evidence as part of their appeal. 

In particular, the defense noted that Yahoo News had reported allegations that plans to kidnap or assassinate Assange were considered by high-ranking officials at the CIA and in President Donald Trump’s administration.

As Fitzgerald recalled, the decision to target Assange by “extrajudicial” means was reportedly driven by WikiLeaks publishing the Vault 7 materials in March 2017. The files exposed the CIA’s cyberwarfare and hacking programs, and one month later, CIA Director Mike Pompeo labeled WikiLeaks a “hostile non-state intelligence service.”

His attorneys also raised the fact that Assange could face the death penalty, something which is prohibited by law in the United Kingdom. Without assurances from the U.S. government that the death penalty would be off the table, his extradition should not be permitted.

Baraitser actually rejected extradition on the basis that there was a “substantial risk” of suicide if Assange was subjected to U.S. jail or prison conditions. In particular, solitary confinement would be considerably abusive given the fact that he is on the autism spectrum. However, she rejected all of Assange’s other arguments against extradition. 

The US-UK Extradition Treaty Should Bar Extradition

When the High Court previously decided that the award-winning Australian journalist could be extradited, the court did so after receiving “diplomatic assurances” from the U.S. government that he would be treated in a manner that would prevent suicide.

Assange’s attorneys immediately sought permission to appeal the many arguments that Baraitser had overlooked. In their view, by failing to consider the prohibition of extradition in relation to political offenses, Baraitser ignored an “age-old” prohibition, which has been included in “virtually every” U.K. extradition treaty. 

It is one of the most fundamental exceptions recognized in international law, and it is included in treaties with “156 out of 158 countries” that the U.K. has treaties with, Fitzgerald explained.

There is a “massive body of case law” decided by U.K. courts “as to what constitutes a political offense,” Fitzgerald added, but Baraitser did not consider any of this because a 2003 extradition law was silent on the matter of political offenses.

The district judge interpreted the statute's silence on political offenses as meaning that U.K. Parliament intended to remove the political offenses exception contained within the U.S.-U.K. treaty. But Fitzgerald insisted that it was “a big step to say” that this protection, which has existed in Anglo-American law for generations, “has simply been removed by silence.”

It is unacceptable, Fitzgerald insisted, that the U.S. government should be able to seek Assange’s extradition by way of an international treaty while simultaneously arguing that the political offense exception within that treaty does not have any force of law.

The choice by the U.S. government to seek Assange’s extradition not only violated his rights under the treaty but by extension represented an abuse of process and violated his rights not to be subjected to detention outside of the law, Fitzgerald concluded.

Criminalizing Ordinary Journalistic Practices

Prosecuting Assange for publishing leaked national security information would violate his rights to free speech. Such activity “was (and is) legal and commonplace because it is conduct protected by universally recognized and entrenched principles of free speech,” Assange’s lawyers declared.

According to defense submissions, the courts always make a distinction between the obligations of journalists on the one hand and their sources on the other—a point which Baraitser did not pay due deference.

Assange has faced a “legally unprecedented” prosecution, which “seeks to criminalize the application of ordinary journalistic practices of obtaining and publishing” true classified information that was in the public interest. 

His attorneys recalled how the publications led the U.S. to cease drone strikes in Pakistan. The publications led the European Court of Human Rights to rule that Khaled el-Masri was kidnapped and tortured by the CIA. The publications led to U.S. military amending their “Rules of Engagement in Iraq.”

Summers told the court that the publications even accelerated the end of the U.S. war in Iraq.

Baraitser emphasized in her decision that the UK Official Secrets Act also criminalizes publishing classified information without authorization. But as Assange’s lawyers stated in their submissions, “Whatever the potential scope of the UK’s [Official Secrets Act] on its face, it has [like the Espionage Act] never been deployed to prosecute much less convict the act of obtaining or publishing (as opposed to leaking) classified information.”

“The core reason for that [is because it would be] fundamentally inconsistent with (and a flagrant denial of) press freedoms. As in the U.S., instances of obtaining and publication of classified information by the UK press are legion but never prosecuted. In this jurisdiction, this prosecution would be (and extradition here facilitates) a flagrant violation [of Assange’s right to freedom of speech].

Defense lawyers outlined jurisprudence from the European Court of Human Rights that sets out clear criteria for the protection of whistleblowers. Summers contended that U.S. Army whistleblower Chelsea Manning, who leaked the documents that Assange published, clearly satisfies this criteria.

Mr Justice Johnson asked Summers whether case law from the European Court of Human Rights provided “an absolute rule” that granted whistleblowers protection regardless of the circumstances. Summers said that there was a criteria that had to be satisfied. A balancing test would be applied. “If it lands in favor of the whistleblower,” they are protected.

Considering how Manning would be protected as a whistleblower, it was Summers’ view that the European Court of Human Rights could not go on to deny Assange protection for publishing the material. 

Assange’s legal team additionally pointed to the real risk that Assange would be denied any First Amendment protections.

Both Pompeo and Gordon Kromberg, a lead prosecutor on the case, asserted that Assange may not be entitled to any rights under the First Amendment, and there were no assurances from the U.S. government that Assange would be afforded constitutional protections.

Crossing A 'New Legal Frontier'

Lawyers for Assange pointed out for the High Court that the U.S. Espionage Act has never before been used to prosecute journalists or publishers.

As a result, the U.S .government is now extending the application of a World War I-era espionage law in a manner, which was “entirely unforeseeable.” That violates Assange’s rights under Article 7 of the European Convention on Human Rights.

“Publishing leaked national security information was (and is) legal and commonplace because it is conduct protected by universally recognized and entrenched principles of free speech,” the defense asserted in their submissions. “The disclosure and publication of state-held information plays a vital role in a democratic society because it enables civil society to control the actions of the government to which it has entrusted the protection of its interests.” 

During the September 2020 extradition hearing, Baraitser “heard unchallenged expert evidence concerning the ‘routinized’ practice in the US of obtaining and publishing classified information, with no prosecution for the act of obtaining or publishing (as opposed to the act of leaking) state secrets ever having occurred previously,” Assange’s defense recalled. “According to the agreed evidence before [Judge Baraitser], the prosecution of Mr Assange as publisher ‘crosses a new legal frontier’ and ‘breaks all legal precedents’.”

Baraitser also heard “unchallenged” expert evidence that “publishers were expressly excluded” from the Espionage Act’s “intended ambit.” 

“The evidence before [Baraitser] was, accordingly, that, in 2010-2011, the relevant time under consideration, it was ‘completely unforeseeable’ that such an indictment could or would be issued against a publisher for obtaining, receiving, or publishing leaked classified information.”

Baraitser failed in her duty to fully weigh all the evidence that Assange’s right to freedom of expression would be violated. 

The High Court judges asked Summer whether it was the case that publishers were not prosecuted for publishing documents, which contained the names of sources, assets and others. Summer replied “yes” and cited the case of Pentagon Papers whistleblower Daniel Ellsberg, who was prosecuted under the Espionage Act. 

While Ellsberg was prosecuted, the New York Times, which published his leaks, was not. 

Summer also cited the example of Cryptome, which was the first to publish the unredacted diplomatic cables before WikiLeaks. No one associated with the site has faced prosecution despite being based in the United States.

Today’s hearing was entirely focused on the arguments by the defense. Tomorrow’s hearing will focus on the U.S. government’s response to the request for an appeal.

If the High Court accepts some or all of the appeal grounds as being at least “arguable” they will set a future date for Assange’s appeal to be heard. But if the High Court judges reject the defense arguments, Assange will have exhausted all of his domestic avenues of appeal.

Assange’s last option will be to file an urgent application to the European Court of Human, which is in Strasbourg, France.

“For the first time in three years, today in court we heard substantive arguments about the wider implications of the Assange case, not only his worrying state of mental health as was considered in previous appeals,” declared Rebecca Vincent, international campaigns director for Reporters Without Borders (RSF).

"Assange’s legal defense made powerful arguments about the political nature of the actions Assange has been charged with, the unprecedented use of the Espionage Act to target journalistic activity, the alarming planning by CIA officials to assassinate Assange, and the protections the European Court of Human Rights would apply to this case — which are among the reasons RSF also defends this case.”

Vincent continued, “We remain concerned by Assange’s inability to appear in court today despite having been granted rare permission to do so. The wrought-iron cage where he would have been held sat empty, while deliberations about his future took place in his absence.”

“During our last visit to him in Belmarsh prison on January 16, he was also unwell and in pain, having broken a rib from excessive coughing. The fact that he is now not well enough to attend court or even follow proceedings online again highlights the risks to his physical and mental health that exist in his current detention conditions, which would be exacerbated if extradited. He should be immediately released,” Vincent concluded.