US Government Rejects Australia’s Call To End Assange Case, Submits 'Assurances' For Extradition

Faced with a deadline set by the British High Court of Justice, the United States Embassy in London submitted “assurances” to potentially avoid an appeal in the case against WikiLeaks founder Julian Assange. 

The assurances come days after the Wall Street Journal reported that the Australia government asked the U.S. to offer Assange, an Australian citizen, a “felony plea deal” that would allow him to return home.

Instead of ending the case, the U.S. State Department provided a diplomatic note to the Crown Prosecution Service (CPS) that contained assurances related to issues raised by Assange’s legal team and upheld by the High Court. The issues involve the First Amendment and the risk of the death penalty.

“Assange will not be prejudiced by reason of nationality with respect to which defenses he may seek to raise at trial and at sentencing,” the U.S. Embassy in London claimed. “Specifically, if extradited, Assange will have the ability to 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.”

The U.S. embassy added, “A decision as to the applicability of the First Amendment is exclusively within the purview of the U.S. Courts.”

Notably, the assurance did not specifically state whether the U.S. government believes that First Amendment rights under the U.S. Constitution extend to foreign nationals.

“A sentence of death will neither be sought nor imposed on Assange,” the U.S. embassy stated. “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.” 

Except the death penalty assurance did not address the concern that Assange may be charged with “aiding or abetting treason” or a more severe charge of “espionage” that could lead to the death penalty. 

A hearing on the assurances will be held on May 20. If the High Court is satisfied by the assurances, including the reasoning for why the First Amendment does not extend to Assange, then Assange will be denied an appeal against extradition. All options for fighting extradition in the United Kingdom’s legal system will be exhausted. 

In a statement, Stella Assange declared, “The United States has issued a non-assurance in relation to the First Amendment and a standard assurance in relation to the death penalty. It makes no undertaking to withdraw the prosecution's previous assertion that Julian has no First Amendment rights because he is not a U.S citizen.”

“Instead, the U.S. has limited itself to blatant weasel words claiming that Julian can ‘seek to raise’ the First Amendment if extradited.”

Assange, who recently entered a fifth year of detention in London’s Belmarsh maximum security prison, faces 17 Espionage Act charges and a charge of conspiracy to commit computer intrusion. Each of the offenses that he is accused of committing pertain to standard newsgathering activities. 

Last month, the High Court granted Assange permission to appeal [PDF] extradition to the U.S. on the grounds that extradition may violate his right to freedom of expression. The court also accepted that he may face prejudice due to the fact that he is a non-U.S. citizen, and that the prosecution may expose him to the death penalty, which is barred under extradition law.

However, the High Court stayed the decision and urged the U.S. government to offer assurances by April 16. 

The High Court accepted that Assange wished to argue at trial that if he was granted First Amendment rights, then the prosecution would be stopped.

“The First Amendment is therefore of central importance to his defense to the extradition charge,” the High Court stated. “Further, if he is convicted, he may wish to invoke the First Amendment on the question of sentence. 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.”

It was Assistant U.S. Attorney Gordon Kromberg, a lead prosecutor on the case, who suggested that the U.S. government could argue at trial that Assange was not protected by the First Amendment. 

“[Kromberg] made a formal sworn declaration on behalf of the respondent and in support of the extradition request,” the High Court added. “He put himself forward as able to provide authoritative assistance as to the application of the First Amendment."

“It can fairly be assumed that he would not have said that the prosecution ‘could argue that foreign nationals are not entitled to protections under the First Amendment’ unless that was a tenable argument that the prosecution was entitled to deploy with a real prospect of success.”

The High Court concluded, “If such an argument were to succeed it would (at least arguably) cause the applicant prejudice on the grounds of his non-US citizenship (and hence, on the grounds of his nationality).”

By upholding this issue, the High Court granted Assange a limited appeal that his right to freedom of expression would be violated if put on trial. But the judges refused to recognize that Assange had engaged in journalism when he published U.S. government documents.

It is debatable whether the U.S. government’s assurance satisfied the main concern, which the High Court raised in relation to Assange and the First Amendment. Prosecutors could still deploy an argument at trial that Assange was not protected by the First Amendment.

Certainly, Assange's legal team still believes Assange should be permitted an appeal on both grounds.

In 2021, the High Court ruled in favor of the U.S. government after they appealed a district judge’s decision that found extradition would be oppressive to Assange’s mental health given the widespread inhuman treatment documented in U.S. jails and prisons. (That ruling came on International Human Rights Day.)

The U.S. State Department salvaged the extradition case by offering "diplomatic assurances" on how Assange would be treated in U.S. custody and reminded the U.K. government that the U.S. and the U.K. have a “long history of cooperation” on “extradition matters.” That was enough to alleviate the High Court's concerns, even though there were loopholes in their promises.

"No matter what assurances the U.S. has provided in the final stages of extradition proceedings against Julian Assange, the grounds of his appeal deserve proper consideration by the U.K. High Court," posted Reporters Without Borders, an international press freedom organization that has backed Assange.

“The diplomatic note does nothing to relieve our family's extreme distress about his future—his grim expectation of spending the rest of his life in isolation in US prison for publishing award-winning journalism,” Stella Assange declared.

President Joe Biden’s administration “must drop this dangerous prosecution before it is too late.”