This is a synopsis of day 2. Read the full play-by-play here and our hearing highlight. Find all extradition coverage here.

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February 21, 2024 — Wikileaks founder Julian Assange could face the death penalty for a prosecution based on ‘state retaliation ordered from the very top’, the High Court heard today. 

Assange is accused by the US government of conspiring with army intelligence analyst Chelsea Manning to leak classified military documents online between January and May 2010. 

The Australian is seeking permission to appeal a 2021 decision by a UK court to approve his extradition to the US, where he faces charges under the country’s 1917 Espionage Act. 

The 52-year-old had initially won his fight against extradition on the grounds he was likely to kill himself if held under harsh US prison conditions. 

But in December 2021 judges found the US authorities had given sufficient assurances to the UK that Assange would be treated humanely in an American prison, and overturned the decision. 

Assange appealed against that ruling, but last June High Court judges upheld the decision to approve the US extradition order, which was signed by then UK Home Secretary Priti Patel in June 2022. 

If he is refused permission to bring a further appeal, Assange is likely to be extradited in the coming weeks to face trial for 18 charges, 17 of which fall under the Espionage Act. The charges include conspiracy to receive, obtain, and disclose classified diplomatic and military documents. 

Assange’s lawyers say he faces up to 175 years in jail if convicted, but the US government claimed the sentence would probably be between four and six years. He has spent the last five years at Belmarsh maximum security prison in southeast London. 

The charges against Assange relate to the 2010 release by WikiLeaks of 500,000 secret files detailing aspects of military campaigns in Afghanistan and Iraq and secret cables about Guantanamo Bay. 

This included the notorious ‘Collateral Murder’ video, which showed the July 2007 killing by an American Apache helicopter crew of eleven civilians, including Reuters journalists Namir Noor-Eldeen, 22, and Saeed Chmagh, 40. 

The video, recorded by the helicopter gunsight, showed the helicopter crew firing into a group of Iraqi civilian men in Baghdad after being given permission from a commanding officer, killing 11 men and seriously wounding two children. 

Joel Smith, representing the US, disputed the claim from Assange’s legal team that the sentence Assange would face in the US would be ‘disproportionate’ and a breach of his human rights. 

He dismissed the 175-year prison sentence Assange’s barristers said he would face if extradited as ‘calculated by simply totting up the maximum sentence for every single offense.’ 

Mr Smith added that Assange’s barristers had said he would face a sentence of 30-40 years. 

He said: ‘Other cases involving unauthorized disclosures of classified information to the media have led to significantly lower sentences.’ 

He gave three examples where defendants were given sentences of 42, 48, and 63 months, despite the ‘maximum exposure’ in these cases running to as many as 130 years. 

The maximum sentence given for the same offenses Assange is facing under the Espionage Act was 63 months. 

He added that sentencing would follow guidelines, and would reflect consideration of aggravating and mitigation factors. 

Mr Smith said the alleged offences were ‘extremely serious’ and that if the sentence was a lengthy one ‘that would reflect the fact his conduct had been aggravated.’ 

He added: ‘Looked at through an American lens the offense is grave. 

‘Looked at through a UK lens the offence is grave. And entirely unprecedented.’ 

He gave a list of Assange’s alleged offending, including ‘the accusation of encouraging others to circumvent legal safeguards on information to provide information to WikiLeaks for dissemination. 

‘The continuing pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public. 

‘The recruitment of Manning and other hackers, the encouragement of Manning who was subject to the American equivalent of the Official Secrets Act, assisting her to crack a password. 

‘The obvious point of naming sources, who were put in danger.’ 

He added: ‘That’s a sweep of offending. It’s beyond the scope of anything that any of the criminal courts in this country have had to grapple with.’ 

Mr Smith said that given ‘such grave and unprecedented criminality’ it could not be said that a lengthy sentence would be disproportionate. 

Responding to the US case, Edward Fitzgerald, KC, repeated that Assange was being prosecuted on political grounds and that it was not legal to extradite him on this basis. 

He said the absence of any mention of the political offense exception in the 2003 Extradition Act did not amount to disapplying it from individual treaties that include it. 

He said: ‘The act is silent. You can’t read into that act a deliberate omission. You cannot say the act disapplies a provision that’s in every treaty we sign with other countries. 

‘You can’t say the silence means it expressly disapplies its appearance in a treaty.’ 

He said the political offenses exception was included in almost every treaty the UK had signed, and that US, UN, and Interpol treaties always include this provision. 

‘In what sense can it be properly said this [exception] is out of date? It’s not out of date.’ 

He also said that as a non-US citizen, Assange risked being denied rights available to a US citizen. 

He said: ‘Mr [Mike] Pompeo said Assange wouldn’t have these rights because he’s a foreigner, and that’s evidence he might be prejudiced in the USA.’ 

This included, he said, US constitutional rights, including the First Amendment right which guarantees freedom of the press, which US citizens are entitled to. 

He continued: ‘So there is a real risk, said to be 15 percent, he may well be prejudiced by that approach and put in a position where he’s discriminated against because of his status and loses his right that US citizens would have.’ 

Mark Summers, KC, another member of Assange’s legal team said there had been no reference to the fact the material he published exposed war crimes. 

The barrister said this was ‘the exposure of a state-level crime’. 

He said the barristers for the US authorities were dodging the issue when they accused Assange of questioning the probity of US prosecutor Gordon Kromberg when they alleged the extradition was politically motivated. 

He said: ‘We don’t suggest that Mr Kromberg is a lying individual or that he’s personally not carrying out his prosecutorial duties in good faith. 

‘We say that the prosecution and extradition is a decision taken way above his head. You can’t focus on the sheep and ignore the shepherd. 

‘What happened is state retaliation ordered from the very top.’ 

Mr Summers said this was reflected in the fact Assange had been denounced at senior government level, and then-president Trump was drawing up plans to assassinate him. 

He said: ‘It was submitted to you that the US government has acted at all times in good faith in bringing this prosecution. 

‘We don’t understand how that can be advanced with a straight face in the face of evidence the president was planning on kidnapping and killing him.’ 

He also reiterated that Assange had gone to ‘extraordinary’ lengths in the year prior to publication to redact names from the documents and that he could not be held responsible for their eventual publication. 

The barrister said the eventual publication of the names by third parties who gained access to the encrypted files was ‘Unintended, unforeseen and unwanted. 

‘At best Mr Assange could be alleged to have been reckless in the provision of the key to Mr Lee. It would be an absurd allegation to make but that’s the highest anyone could place it.’ 

He added that there was ‘no proof at all that any harm actually eventuated’ to any of the people named in the leaked documents. 

Mr Summers also returned to what he described as the ‘horrendous punishment’ awaiting Assange were he to be extradited to the US. 

He said Assange would be imprisoned for the rest of his natural life, a punishment, he said, ‘that would shock the conscience of every journalist around the world.’ 

He said the courts in the UK should have carried out a balancing exercise on Assange’s actions to determine the public interest in the disclosures. 

He noted that the Strasbourg court deemed ‘exposure of state-level crimes as the very highest level of public interest.’ 

‘The crimes being discussed here were real and ongoing and were happening then to real people. And the disclosures had the capacity and capability of stopping that happening, and they did. 

‘Drone killings in Pakistan came to an end, the war in Iraq came to an end’. 

He said that in a balancing exercise on whether the disclosures were in the public interest ‘colossal, ongoing, real criminal wrongdoing outweighs the risk of some harm to some of the criminals performing or facilitating the criminality.’ 

Judge Dame Victoria Sharp challenged him on whether all the people named in the leaked documents were criminals. 

Mr Summers replied that ‘their names are in there because they have engaged in the criminality that’s been exposed. 

‘The fact is there’s context to these names. They are the names of people who have facilitated America doing what the disclosures reveal them to have been doing.’ 

He added that even if they were innocent, the fact the disclosures protected people against practices like rendition and war crimes would outweigh the potential harm to them. 

Mr Summers said there was no guarantee the US would not subject Assange to the death penalty in the event of his extradition. 

He said: ‘We don’t understand why there is no usual death penalty assurance in this case.’ 

‘The consequences of it are that discharge must follow if they continue to decline to give it.’ 

The judges have reserved their decision.

Read the full report from day 2 of Julian Assange’s final bid to appeal his extradition here. Find all extradition coverage here.

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February 21, 2024 — In order to avoid the pesky press freedom issues that rights groups and media outlets everywhere are warning its Assange prosecution poses, the U.S. government has to claim all kinds of extraordinary falsehoods that fall apart under the mildest scrutiny.

Representing the U.S. today, CPS barrister Clair Dobbin had to argue that Julian Assange is not a journalist, that Chelsea Manning is not a whistleblower, and that the indictment of Assange is a narrowly focused punishment of the release of sources’ names rather than a wholesale assault on the freedom of the press.

Anything but a journalist 

The U.S. is desperate to claim that Julian Assange is not a journalist. The prosecution of Assange has garnered global attention for many reasons, including that major media outlets around the world have condemned the charges as landmark threats to the First Amendment, so the U.S. needs to fix that image. The tactic they’ve chosen is to try to separate Julian Assange from other journalists. To keep mainstream journalists happy, but also to keep them from paying too much attention to the Assange case because it might threaten their jobs, the U.S. goes to great lengths to suggest Assange is anything but a journalist — a hacker, a spy, an activist, whatever it may be. 

“The district judge rejected outright that [Assange] was to be treated as a journalist or akin to a publisher,” Dobbin declared.

“He solicited the bulk disclosure of classified information and was party to Ms. Manning’s theft of classified information,” Dobbin said, “and then indiscriminately and knowingly published to the world who acted as sources of information to the United States. It is these key facts that distinguish [Assange] from the New York Times and other media organizations; it is these facts that distinguish him.”

Julian Assange has a press card. He has many press cards — from the International Federation of Journalists, the European Federation of Journalists, and the Australian Media and Entertainment Arts Alliance. He has written and edited books and articles, he’s hosted an interview television show, and he’s published carefully redacted databases in close partnership with other media outlets around the world to break news in those outlets’ local regions. 

He’s also won scores of journalism prizes, including the Walkley Award, the most prestigious award in Australian journalism and frequently referred to as the Australian equivalent of the Pulitzer Prize.

But even this misses a bigger point. The First Amendment isn’t just for journalists. Meaning it isn’t just for whomever this or that judge determines is a journalist either. The First Amendment protects types of activity, not types of people. It protects the freedom of the press, which includes newsgathering, reporting, and publishing alike. 

Press freedom experts have warned time and again that the charges against Assange present a direct threat to this journalistic work. The New York Times, which hasn’t always been Assange’s most ardent defender, said the indictment “aims at the heart of the First Amendment.”

Mainstream reporters have said the indictment terrifies them. Pulitzer Prize-winning journalist Barton Gellman said:

I am very much worried that the precedent that the present US administration is trying to set with Assange is dangerous, and quite new in the American legal tradition. Assange is charged with asking for information, with receiving information, and with publishing information. And I don’t mind saying that those are exactly the things that I do. And there has never been a prosecution for espionage based entirely on publication. If that’s allowed to stand, there’s absolutely no reason why it couldn’t be used against the Washington Post or the New York Times or CNN.

Dobbin again tried to separate Assange from other journalists by focusing on his alleged agreement with source Chelsea Manning to uncover more abuses, publish more documents, and allegedly conceal her identity. “Entering into this agreement is what takes Assange well outside the activities of a responsible journalist.”

But other journalists do this kind of thing all the time. Journalism professor Mark Feldstein testified in 2020:  

Feldstein confirmed that soliciting information is “standard journalistic behavior.” When teaching journalism, Feldstein talks about asking sources for evidence, actively seeking information, working with them to find documents that are newsworthy, and directing them as to what to find out. “It’s all routine,” he said.

Also routine are efforts to conceal sources’ identities. “Trying to protect your source is a journalistic obligation” Feldstein said, adding, “We use all kinds of techniques to protect them, including payphones, anonymity, encryption, removing fingerprints from documents, reporters do this all the time.”

As Gellman told the Committee to Protect Journalists, “If asking questions and protecting a source are cast as circumstantial evidence of guilt, we’ll be crossing a dangerous line.”

Chelsea Manning’s motives

Dobbin said it was “unrealistic to submit that” Chelsea Manning “gave any thought to specific disclosures she wanted to raise.” This couldn’t be further from the truth. Though the Espionage Act charges against her afforded no public interest defense during the merits stage of her court martial, Manning made a point to submit a personal statement to the court, in which she expounded at length on her crisis of conscience, her ultimate decision to make certain documents public, her desire for change and her careful selection of which databases would give the public the best window into the war on terror without putting her fellow soldiers at risk.

On her decision to release the Collateral Murder video, Manning said, 

I hoped that the public would be as alarmed as me about the conduct of the aerial weapons team crew members. I wanted the American public to know that not everyone in Iraq and Afghanistan are targets that needed to be neutralized, but rather people who were struggling to live in the pressure cooker environment of what we call asymmetric warfare. After the release I was encouraged by the response in the media and general public, who observed the aerial weapons team video. As I hoped, others were just as troubled – if not more troubled that me by what they saw.

The State Department diplomatic cables were the only set of documents that Manning worried, initially, had the potential to cause damage. “Of the documents released, the cables were the only one I was not absolutely certain couldn’t harm the United States,” she said at first. She kept reading.

The more I read the cables, the more I came to the conclusion that this was the type of information that should become public. I once read and used a quote on open diplomacy written after the First World War and how the world would be a better place if states would avoid making secret pacts and deals with and against each other.

I thought these cables were a prime example of a need for a more open diplomacy.

She knew exactly which cables had which sensitivity levels, and she knew that it would be safe to release them. She acknowledged that “exposing this information might make some within the Department of State and other government entities unhappy,” but she knew that it wouldn’t cause actual harm.

Given all of the Department of State cables that I read, the fact that most of the cables were unclassified, and that all the cables have a SIPDIS caption, I believed that the public release of these cables would not damage the United States, however, I did believe that the cables might be embarrassing, since they represented very honest opinions and statements behind the backs of other nations and organizations.

Manning’s motive could hardly be clearer. But the government has to portray this desire to stop war crimes as a random act of anarchy — anything to take our eyes off of what was actually in those documents. 

Will the High Court see through it?

Every major media outlet, press freedom group, and civil liberties organization can see the obvious: Assange is a journalist, Manning was a whistleblower, and the charges against Assange are dangerous. So far though, British courts have been willingly led astray, taking U.S. prosecutors at their word and plugging their ears to the world’s laments. 

District Judge Vanessa Baraitser’s 2021 ruling, though it narrowly blocked extradition for the time being on health grounds, otherwise took every U.S. argument at face value and ignored the testimony of experts. Since then, even more evidence has come in revealing U.S. intentions. Eight months after Baraitser’s ruling, more than 30 former U.S. intelligence and national security officials confirmed to Yahoo News that the CIA had drawn up plans to kidnap and kill Julian Assange.

The story also revealed that the DOJ hurried a legal case against Assange just to get out ahead of a rogue CIA.

Some National Security Council officials worried that the CIA’s proposals to kidnap Assange would not only be illegal but also might jeopardize the prosecution of the WikiLeaks founder. Concerned the CIA’s plans would derail a potential criminal case, the Justice Department expedited the drafting of charges against Assange to ensure that they were in place if he were brought to the United States.

Three years have passed since Baraitser’s ruling. Assange’s health, which prevented him from even attending this week’s proceedings by video link, has deteriorated greatly. The indictment has already had a chilling effect, as journalists worry they could face charges and prospective whistleblowers with even fewer places to turn with their evidence of abuse.

The British High Court has a chance now to take another look at the facts in front of them, and to take an honest look at what they’ve been hearing from the prosecution and whether it passes the smell test. 

This award-winning publisher, who painstakingly redacted names, worked with local outlets to ensure accuracy, and published evidence of war crimes…is just a reckless hacker?

This intelligence analyst in the U.S. Army, who combed over databases to select the documents most important for the public interest, and knew that doing so would put herself at great personal risk…gave no thought to what she released? 

Does that sound right?

This is a blog post of our live tweets. See our report from day one as well as our hearing highlight. Find all extradition coverage here.

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February 21, 2024 — Today is the second and final day in publisher Julian Assange’s final UK bid to appeal his extradition. Yesterday, the defense explained to the 2-judge panel why the High Court should reassess the District Judge’s ruling. The defense argued that the judge had failed to adequately assess whether Assange has been charged with a “political” offense and whether extradition should be barred on those grounds.

Another principle against extradition is “unforeseeable prosecution”; you cannot be prosecuted for a crime that you couldn’t be expected to know was a crime. Because the U.S. had never prosecuted a journalist for publishing truthful information in the public interest before, how could Assange have known that his journalism would be against the law?

Assange Final UK Appeal Request: Hearing Day 1

Today we hear the U.S. case in response, arguing against Assange’s right to appeal his extradition order.

Judge Sharpe opened this morning by acknowledging audio and microphone issues: “We are aware there were technical issues that affected the ability for those in court to listen. This is extremely regrettable and is being investigated. If there are issues today that affect members of the press or in court or on a remote link, please do let us know so they can be investigated without delay.”

Claire Dobbin is the British prosecutor arguing on behalf of the United States. She said, “A refrain from yesterday is that much of the defense case was unanswered [by the district judge]. But the affidavit submitted by the U.S. addressed every aspect of the defense; his prosecution is based on the rule of law and evidence.”

“The charges might be unprecedented but what he did was also unprecedented.”

Dobbin: He solicited the bulk disclosure of classified information and was party to Ms. Manning’s theft of classified information, and then indiscriminately and knowingly published to the world who acted as sources of information to the United States.

Dobbin: It is these key facts that distinguish the appellant from the New York Times and other media organizations; it is these facts that distinguish him – not his political opinions. 

Judge Sharp interrupts, says we’re going to have to pause the proceedings to ensure that the people in court 3 can hear. (Journalists and observers complained of audio issues again.)

Court resumes. Dobbin again for the U.S.: ‘The district judge rejected outright that the appellant was to be treated as a journalist or akin to a publisher, and she did so considering at length the evidence marshaled on behalf of the appellant about the value of some of the disclosures.’

Dobbin rejects the suggestion that this case is about punishing Assange for his political opinions. Says that the U.S. admin changed during this case but nonetheless, it remains on foot because the prosecutor in charge of the prosecution insists it is based on evidence, not politics.

Prosecution claims Assange isn’t a journalist, Manning isn’t a whistleblower

Guide to Testimony in Julian Assange’s Extradition Hearing

Dobbin, trying to refocus judges after the defense case yesterday, notes the second superseding indictment expands the allegations against him to encompass the additional allegations of hacking 

Assange published information that he knew was stolen classified information, Dobbin said. These documents disclosed to the world the names of human sources who provided information to the US, many of whom lived in war zones and authoritarian countries. 

The effect of disclosure of unredacted names created “a grave and imminent risk” that people would suffer physical harm or arbitrary detention, she said. Damaged the work of security & intelligence services, & damaged the capability of U.S. forces, thereby endangering the interest of the U.S.

Dobbin spent much of the morning attempting to paint Assange as recklessly endangering sources, repeating over and over the hypothetical harm that they have never been able to prove when actually asked in court. 

The prosecution elides some basic facts about how the unredacted cables came about, WikiLeaks’ redaction process, and efforts to protect sources.

Assange’s Call to the State Department

• Assange’s Call to the State Department, in 2011, warning that others were going to release the unredacted cables so they should protect their sources
• Testimony from the initial extradition hearing: WikiLeaks’ Redaction Process and the Unredacted Cables 
• Nicky Hager: Assange’s redactions protected informants
• Mark Feldstein: “national security is often used as a shield to hide” embarrassing or bad actions“
• Christian Grothoff – WikiLeaks did not publish unredacted cables first
• Cryptome published unredacted cables first 
• Jakob Augstein – Assange “feared for the safety of informants”

Dobbin instead returns to the U.S.’s arguments from the initial extradition hearing, and attempts to portray Chelsea Manning as a nefarious hacker with Assange’s help, rather than a conscientious whistleblower.

Dobbin: The Department of Justice and presidents of both parties have long viewed the outing of intelligence sources as outside the scope of the First Amendment.

Dobbin trying to paint a picture of a narrow, restrained indictment that only deals with unredacted names.

Dobbin, returning to the alleged attempt to crack a password, says: ‘Entering into this agreement is what takes Assange well outside the activities of a responsible journalist.’

Dobbin: The material he published attracts no public interest whatsoever; his publication, as alleged, of the unredacted material wasn’t inexorable, it didn’t have to happen and that is what he is being prosecuted for. 

Judge Johnson stops Dobbin before she moves on, and notes, ‘By the time he had published them – they had already been published by others.’

Dobbin: The allegation is that he was responsible for having material in the hands of others in the first place, and the district judge makes the point that he is free to litigate in the U.S. 

Dobbin, not answering the question, said, “This court must proceed on the basis that these are the allegations against him.” The U.S. is blaming Assange for the actions of David Leigh & Luke Harding at the Guardian.

Dobbin moves on to arguments over the Extradition Treaty vs Act. Says the 2003 Act entirely reformed extradition legislation in this jurisdiction; it expressly removed the political offense exception, provides no provision for it. 

Dobbin: If a statute is clear, then it applies regardless of the terms of any treaty.

Dobbin spending a long time on case law to insist the Treaty should be ignored in favor of the Act.

Judge Johnson warns she’s running low on time. 

Dobbin arguing against the defense case that Assange is targeted for his political views or actions. Says the case “Does not permit a simplistic analysis – ‘my acts were political, therefore I am being sought for prosecution on account of my political opinion’.” 

Dobbin effectively says that U.S. and UK governments/courts should just trust each other: ‘The starting position must be that the fundamental assumption of good faith with states where the UK has long relationships on extradition – US as one of the most longstanding partners of the UK.’ 

Dobbin again refers to Trump saying he loved WikiLeaks at one point, undermining the allegation that pressure was brought on prosecutors. (That was in 2016; in 2010 he said Assange should get the death penalty and in 2019 he indicted him) 

Dobbin says the Yahoo News article on the CIA’s plans to kidnap/kill Assange is not “fresh evidence” because there was evidence before the judge about plots and plans at the embassy already and she rejected them.

Dobbin: ‘What was the nexus between the surveillance plans of the appellant and this extradition request? The appellant only comes before the UK courts upon Ecuador having rescinded diplomatic protection. He was only arrested upon the UK being invited into the embassy in order to do so and only comes before this court because of lawful proceedings instituted after. He is subject to these proceedings because of due process and ordinary process.

Dobbin, having it both ways with CIA spying: In any event [even if the CIA did spy], says nothing about the motivation for prosecution – even if there was a concern [i.e., spying] for the appellant in the Embassy, this does not detract from the objective basis for this prosecution.”

Of the Yahoo story, Dobbin said, ‘It’s not witness statement evidence or anything like that and in many respects, I am hesitant to address it.’

Dobbin notes “Article 10, which I am conscious is the key aspect of the application for permission.” (Article 10 of the ECHR)

On the defense point that Assange couldn’t foresee an unprecedented prosecution, Dobbin says, ‘Even if you were to take this at face value that it’s ordinary journalistic activity to solicit this information’, should reject the revelation of the classified names of sources 

Dobbin focusing on the expanded computer intrusion charge in 2nd superseding indictment, effectively saying they needed that newer indictment to get away from the journalism issues of the case 

Dobbin trying to paint Julian as different from a normal journalist: ‘It’s his complicity…going beyond receipt – it’s the encouragement and incitement to steal the material that puts the appellant at one end of the spectrum of gravity’ 

Once again, Feldstein in 2020: “Trying to protect your source is a journalistic obligation. We use all kinds of techniques to protect them, including payphones, anonymity, encryption, removing fingerprints from documents, reporters do this all the time.”

Pulitzer Prize-winning journalist Barton Gellman, who led the Washington Post‘s reporting on the Snowden documents, has long said that the Assange prosecution criminalizes activity that he engages in regularly:

“Assange is charged with asking for information, with receiving information, and with publishing information. And I don’t mind saying that those are exactly the things that I do.” 

Gellman told CPJ, “If asking questions and protecting a source are cast as circumstantial evidence of guilt, we’ll be crossing a dangerous line.”

Dobbin claims that Chelsea Manning wasn’t a whistleblower because she responded to solicitation and just gave bulk datasets. Says it’s “unrealistic to submit that she gave any thought to specific disclosures she wanted to raise.” 

That couldn’t be more wrong. Chelsea Manning has always been clear about her motives. In 2013, she said: “I hoped that the public would be as alarmed as me about the conduct of the aerial weapons team crew members.”

U.S. Espionage Act and UK Official Secrets Act

A key point of law in extradition cases: The prosecution needs to prove dual criminality, meaning that the allegations against Assange in the US would constitute crimes in the UK. 

Dobbin: ‘This could be charged as conspiracy and aiding and abetting and under section 5 of the Official Secrets Act, which can apply to publishers; but the burden of proof is higher – must prove it was damaging and the person publishing had cause to believe it was damaging’ 

Judge Johnson queries her: If in this country, a journalist had information of very serious wrongdoing by an intelligence agency and incited an employee to provide that information, and it was provided and published carefully, would a prosecution be compatible with Article 10? 

Dobbin: I’m not sure that it would give way to a straightforward answer…. There is no public interest defense and it’s not incompatible with Article 10 

Dobbin effectively says that regardless of the public interest in such a case, if it was damaging then it would be prosecuted. 

Dobbin: It is true the US authorities are careful about prosecuting when First Amendment rights are implicated this much…. Free speech is highly prized in America, which is why the US has gone a long way to distinguish the appellant’s prosecution from other media. 

Dobbin: Those media outlets who went through the redaction processes have not been prosecuted.

[Note: this elides the fact that U.S.-based website Cryptome published the unredacted cables (even before WikiLeaks) and has never been asked to take them down or been prosecuted.] 

Dobbin lengthily defends the district judge’s handling of issues with Article 7 of the ECHR (which says you can’t be charged with crimes that weren’t crimes at the time they were committed). 

The discussion moves to whether Assange would be afforded First Amendment protections If sent to be tried in the United States. Judge notes that US Attorney Kromberg said he wouldn’t, which could conflict with Section 81b of the UK Extradition Act:

Dobbin: ‘We are not in any position to assess whether this is established [that it would conflict] as a matter of case law; it refers to a possible argument rather than a foundation that reaches the threshold in 81b.’ 

Judge Johnson: Do we have any evidence that a foreign national is entitled to the same First Amendment rights as a U.S. citizen?

Dobbin: I don’t think so, there was a lot of case law referred to but I don’t think there was case law on that point. 

Barrister Joel Smith arguing for the US on sentencing enhancements in a potential U.S. trial.

“The evidence is that the applicant will be entitled to a fair and public hearing, within a reasonable time, before an independent and impartial tribunal” 

Smith: Another matter, wasn’t developed orally but in writing, that is the possibility of aggravating evidence being placed before the court that the applicant would never have seen.

Seems to suggest we can’t decide sentencing issues now with the possibility of more evidence.

Moving on to Section 103 of the UK Extradition Act, which says, “If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.”

Discussion on this matter deals with the creation of the 2003 Extradition Act, and contemporaneous discussion of the ‘political offense’ exemption in the US/UK Treaty 

The prosecution argues, ”There is no free-ranging discretion for the Secretary of State to refuse extradition” if they determine it to be a political offense 

Judge: The US/UK treaty says you cannot extradite for political offenses. Hypothetically, if the Sec. of State finds it’s in violation of Article 4, they’re still required to certify it as valid?

Barrister acting on behalf of the Secretary of State for the Home Department: Yes 

Prosecution now turns to the death penalty. Yesterday, the defense pointed out that more charges could be added that carry the death penalty, & that Chelsea Manning was charged with “aiding the enemy,” a death penalty offense (even though the US didn’t seek the death penalty for her) 

Prosecution: Assange is not charged with treason or any such charge. Manning, who was, received a determinate sentence and nothing in her case suggests that the applicant here faces the genuine risk of the death penalty. 

Judge Johnson: If the appellant is extradited, is there anything to prevent the charge of aiding and abetting treason from being charged?

Counsel: No

Judge: So if there is nothing to prevent it, do you accept that the sentence could be the death penalty?

Counsel: Yes 

Judge Johnson: could there be any assurance to protect against that?

Counsel: Why should the prosecutors give an assurance when there is no real prospect it would happen? We say there must be a threshold reached otherwise in any case people could raise this in any technical case 

SSHD barrister cont’d: … Here the evidence suggests a 30-40 year sentence. It would be difficult to offer assurances to prevent the death penalty from being imposed. But that still doesn’t mean the Secretary of State was wrong in refusing to prevent extradition. 

Edward Fitzgerald QC for the defense, pushing back against the prosecution’s attempt to just focus on the 2003 Extradition Act. “There is powerful abuse jurisprudence that also allows us to look at this Treaty point,” he says. 

Discussion continues over the 2003 Act’s omission of the Treaty’s political offense exemption: ‘They claim that the omission of the political offense was deliberate; it’s simply not the way an important issue like this can be determined – there can be all sorts of reasons’ 

Fitzgerald quotes the language used: “‘Extradition will not be allowed of people being prosecuted…accounted for by their race or political opinions.’ It’s the textbook definition of a relative political offense. He is saying there will be a pardon for a relative political offense” 

Fitzgerald says it’s “ludicrous” to suggest the UK just stopped caring about political offenses when they made the 2003 Act because the UK “continues to implement this specific safeguard over and over again in treaties” with other countries. 

Fitzgerald: When we are dealing with the right to life, the court should adopt an anxious scrutiny approach.

It is consistent with Article 5 to consider the Treaty.

We cannot say the courts are powerless to develop the law. 

Mark Summers QC for the defense: “It is a feat for the US counsel to be on her feet for two and a half hours advocating for the prosecution for disclosure of this material without once referring to the fact that the material disclosed war crimes.” 

Summers responds to Dobbin: ‘We don’t suggest that Kromberg is lying or that he is not personally carrying out his duties in good faith.

The decision to prosecute is a decision taken way above his head. What happened is state retaliation ordered from the very top.’ 

Summers on Dobbin’s response to the defense’s 3 points from yesterday:

•  That the prosecution was part of a state-level practice to secure impunity for unlawful conduct – you heard no answer for that
• The US didn’t prosecute until the ICC took interest – no submission on that 
• Condemnation from the President – well the answer was that President Trump praised WikiLeaks, ignoring completely what we now know is that he was plotting to kill Assange 

Summers, to the judges: It was submitted to you that the U.S. has acted in good faith and we don’t understand how that submission can be made with a straight face when there is evidence of plans drawn to kidnap and kill Mr Assange. 

We pointed out the fresh evidence that the charges that were brought were done so to facilitate the secret rendition, Summers said. It was submitted that Mr. Assange is before the court because he has been subject to the due process of the law – doesn’t sound much like it to us 

Summers comes back to Article 7:

“Espionage cannot be used to attack the press for publishing state secrets.”

“There is no suggestion anywhere in any authority that everyday journalistic activity was going to prompt criminal prosecution.” 

On the password hash: If you engage in theft, you as a member of the press could be prosecuted for it, but nothing suggests anything to the effect that also renders publication unlawful or ‘out with the First Amendment’ or renders someone ‘not a journalist’. 

‘All of those authorities say that you could be prosecuted for theft, but it doesn’t say — and no authority has ever said — that that takes out outside the scope of protection for publication.” 

Discussion between Judge Sharp and Summers over which charges the defense is arguing engage Article 10 — Summers says the Manning-related charges, i.e. all except the non-Manning parts of count 2 (computer intrusion) 

Summers: ‘If at the end of this process, count 2 is left standing, shorn of the Manning allegations, as it were, what will happen is an Article 8 submission’ because Assange has already served a sentence as long as that charge (5 years) 

Defense: Can I ask why [the prosecutor] had such difficulty in answering [the judge’s] question when pressed on the implications of this decision for the press? 

Summers: There must be proportionality in relation to the publications – all of the cases talk about the duty of the court to engage with the public interest of the publication itself 

Summers: The US submission completely ignores the extraordinary efforts by WikiLeaks to redact – with partners – followed a year later by one of the media partners, not Assage, deliberately publishing in his book, the key to the encrypted internet file where the names existed. 

That was followed by Mr Assange scrambling around to try to protect the names of those published, including calling the State Dept to put in place urgent and immediate measures to protect people named.

Then the fact that others published the material. 

Summers, envisioning a case before the ECHR: This is how the harm would happen; unintended, unforeseen, unwanted – at worst, he could be reckless in giving the key to Mr Leigh; the Strasbourg court would recognize that there is no proof at all that any harm actually eventuated. 

Says the court would accept there was damage [in giving the keys to Leigh], but that would be weighed against the other side of the scales, which is what Assange faces for publishing: 30-40 years (in the words of the prosecutor) 

The Manning sentence (35 years) should be seen as a floor, not a ceiling, for what Assange would face. 

That is a sentence that shocks the conscience of every journalist around the world 

The vast public interest in the exposure and prevention of harm on a titanic scale – rendition, torture, murders, black sites, drone strikes, war crimes. Strasbourg regards the disclosure of state-level crimes as a matter of immense public interest. 

All of the European cases protected by Article 10 involved state officials. 

Crimes disclosed here were real, ongoing, and happening to people and the disclosure had the capacity of stopping that happening. Drone killings in Pakistan came to an end, and the war in Iraq came to an end. 

Summers: the district judge failed to even undertake that analysis, and said this isn’t about journalism. 

The role of the court on appeal is significant: there is no evaluative conclusion for the court to pay deference to; the restrictions on review of such decisions have no application here. You must assess it de novo. Mr Assange is entitled to a court that will make that assessment 

That’s the close of the defense submission in court.

Judge Sharp: We will reserve our decision, pending written submission from the parties. 

The U.S. has until 4:30pm tomorrow for a submission on Manning’s sentence. The defense has until March 4 to submit its speaking note though it’s requested asap.

Court is adjourned.

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BREAKING: @kennardmatt outlining the events from within the court today#FreeAssangeNOW pic.twitter.com/ICKivpXJgF

— Free Assange – #FreeAssange (@FreeAssangeNews) February 21, 2024

This is a synopsis of day 1. Read the full play-by-play here and our hearing highlight: ‘U.S. silencing Assange for threatening its immunity.’ Find all extradition coverage here.

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February 20, 2024 — Julian Assange’s barrister told the High Court, ‘It’s difficult to conceive of a disclosure of greater public interest’ than the information the Wikileaks founder is accused of unlawfully disclosing.

Assange is accused by the US government of conspiring with army intelligence analyst Chelsea Manning to leak classified military documents online between January and May 2010.

The Australian is seeking permission to appeal a 2021 decision by a UK court to approve his extradition to the US, where he faces charges under the country’s 1917 Espionage Act. The 52-year-old had initially won his fight against extradition on the grounds he was likely to kill himself if held under harsh US prison conditions.

But in December 2021 judges found the US authorities had given sufficient assurances to the UK that Assange would be treated humanely in an American prison, and overturned the decision. Assange appealed against that ruling, but last June High Court judges upheld the decision to approve the US extradition order, which was signed by then-UK Home Secretary Priti Patel in June 2022.

If he is refused permission to bring a further appeal, Assange is likely to be extradited in the coming weeks to face trial for 18 charges, 17 of which fall under the Espionage Act. The charges include conspiracy to receive, obtain and disclose classified diplomatic and military documents. Assange’s lawyers say he faces up to 175 years in jail if convicted.

Mark Summers KC, representing Assange, told the court that the material published on WikiLeaks exposed ‘state-level criminality’ by the US. This included, he said, exposing practices like extraordinary rendition, torture, and war crimes. ‘Exposure of criminality is obviously in the public interest,’ Mr Summers said. He told the court that Chelsea Manning had been acting as a whistle-blower when she passed the documents to Assange, and that the underlying leak was therefore ‘specially protected’ under Article 10 of the European Convention on Human Rights (ECHR).

Article 10 protects an individual’s right to freedom of expression. Mr Summers said the publisher of that material should be afforded similar protection, and that Assange, as a member of the public who was simply handed the material by Manning, should not face prosecution.

He said: ‘The court is clear that there can be cases of exposing criminality where the interest and need for the public to know the content of the disclosure is such as to outweigh the duty of confidentiality for Article 10 purposes.’

‘The sheer weight of the public interest means the disclosure in this case eclipses all else. It eclipses secrecy, and eclipses the high risk of harm to those doing this.’

He added: ‘It’s difficult to conceive of a disclosure of greater public interest than that which occurred in this case. ‘That public interest would eclipse all else, and in Mr Assange’s case all the more easily than for Ms Manning because of course Mr Assange is not under the duty of secrecy.

‘He never signed the Official Secrets Act, or American equivalent, and Strasbourg clearly recognizes the difference between those who are and are not under secrecy.’

Mr Summers said that in her original January 2021 decision the judge had ‘failed to undertake the Article 10 balance. She didn’t, and it’s a glaring legal error.’ He conceded that the leaks did result in three individuals being named, but described ‘the extraordinary steps that were taken to redact, and the unforeseeable escape from that net that occurred.’

He added that not only did the disclosures not result in any actual harm to any of the individuals named, but by contributing to the ending of the Iraq war they had a positive impact overall.

Mr Summers also told the court that a prosecution on the basis of publication of state secrets was unprecedented. He said there were numerous examples of state secrets being published in the US, including disclosures that included the names of individuals, but that publishing these had never before resulted in prosecution in the US.

‘There is a practice in the US of national security journalism. ‘It is concerned on occasions with the publishing of names, and it’s never been met with prosecution before so far as publishers were concerned.’

He added that this was also the case even where the disclosure resulted in ‘actual violence’ to people named within it. The barrister said as a result ‘if somebody had asked in 2010 if this was going to result in an espionage prosecution, the answer is there has been no prior prosecution for any publishing of state secrets, on that or any other ground.’

He said Assange faces ‘an allegation of engaging in criminality in order to extract state secrets. That’s happened plenty of times before. It’s never attracted prosecution’.

As a result, he said it would have been ‘wholly unforeseeable’ that Assange might have been opening himself up to prosecution under the Espionage Act when he published the material on Wikileaks in 2010.

This meant, he said, that the prosecution was a ‘flagrant violation’ of Article 7 of the ECHR, which stipulates that ‘no one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed.’

Mr Summers told the court: ‘On the state of the evidence the judge had as to American law, American prosecutorial practice and American non-prosecutorial practice, there was a flagrant violation of Article 7 before her. It was her duty to engage with it and she didn’t’ In summary, he said that ‘above all Strasbourg will record Mr Assange was exercising Article 10 rights of the Council of Europe area, where these alleged offences occurred, carrying out journalistic work of the highest importance.’

‘The court will have regard to the sheer magnitude of the sanction he faces for doing that. He now faces the sentence of imprisonment that will last the rest of his natural life.

‘The court will have regard to the sheer chilling effect that that the kind of treatment will have on others. ‘Had the District Judge engaged with that at all we would respectfully submit that the result would have been different.’

He added: ‘For the avoidance of doubt, we also say that the penalty in this case is so off the scale that of itself it engages Article 3 as a grossly disproportionate sentence.’ Article 3 of the ECHR states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Mr Summer told the court this includes disproportionately long prison sentences.

The hearing continues on Wednesday.

Read the full report from day 1 of Julian Assange’s final bid to appeal his extradition here. Find all extradition coverage here.

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February 20, 2024 — The prosecution of Julian Assange should be seen within the context of the United States’ efforts to prevent its own war crimes from being investigated and prosecuted. It’s an extraordinary effort to silence a critic for taking evidence of the crimes of war out of the SCIFs and into the ICC. 

Mark Summers QC, arguing for the defense, pulled no punches in describing the importance of the documents WikiLeaks revealed. “These were the most important revelations of criminal U.S. state behavior in history,” he said, referring to the Afghan and Iraq War Logs, the State Department Cables, and the Guantanamo Bay Detainee Assessment Briefs published in 2010 for which Assange is now being tried. 

The Collateral Murder video, documenting U.S. Apache helicopter fighters gunning down reporters and children in Iraq, is “the most important revelation since Abu Ghraib.”

“The cables Assange published disclosed extrajudicial assassinations, rendition, torture, dark prisons, and drone killings,” Summers said. The Guantanamo Bay files, showing the treatment of detainees, were described to the court as a “colossal criminal act.” On the Afghan and Iraq documents, the evidence showed allegations of “extraordinary seriousness.”

“What was being disclosed by the publications,” Summers said, “was criminality which permeates, was tolerated by and was facilitated by the American government.”

But Summers’ key point was not merely that these documents have been used to inform the public, though they have certainly done that, about the nature and detail of the horrors of these wars the United States worked to keep secret. Just as importantly, Summers argued, these documents have been used in other courtrooms, in foreign courts where they’ve been used to establish that war crimes have been committed and to find evidence of rendition and torture. 

Recall Assange’s initial extradition hearing, in which we heard testimony about the extensive and unprecedented usefulness of WikiLeaks’ releases in finally bringing justice in courts around the world.

Human rights attorney Clive Stafford-Smith testified in September 2020:

Clive Stafford Smith, a U.S.-U.K. dual national and the founder of Reprieve, which defends prisoners detained by the U.S. at Guantánamo Bay and others in secretive detention localities around the world, testified about the importance of WikiLeaks material in their litigation. He first discussed the utility of WikiLeaks disclosures in litigation in Pakistan relating to drone strikes and the “sea change” in attitudes towards US drone strikes in Pakistan.

Regarding rendition, assassinations, torture exposed in WikiLeaks documents, Stafford-Smith said, “Speaking as a U.S. citizen, it is incredibly important that it stopped … I feel that my country’s reputation was undermined and criminal offenses were taking place.”

“The litigation in Pakistan would have been very, very difficult and different” if it weren’t for WikiLeaks disclosures.

John Goetz testified about using the documents to confirm CIA torture:

Giving an example of the types of stories that WikiLeaks releases assisted with, Goetz explained had been investigating the story of Khalid el-Masri, a German citizen who was kidnapped by the CIA in Macedonia, extraordinarily rendered to a black site in Afghanistan where he was detained and tortured in 2004. This wasn’t known at the time, so Goetz searched the documents for el-Masri’s name, saw that he had been brought to Afghanistan, and found the CIA kidnappers “who’d forced el-Masri onto a military plane, sodomized him and sent him” to Afghanistan.

Goetz tracked down the CIA agents responsible in the United States, interviewed them, and reported the story. Following that broadcast, a Munich state prosecutor issued an arrest warrant for the 13 CIA agents. But, Goetz said, “It turns out the arrest warrant was never actually issued to the United States.” When he saw the State Department cables, he discovered that the U.S. had pressured the German prosecutor to issue the warrant in a jurisdiction where the perpetrators didn’t live, threatening “repercussions” otherwise.

There are many more examples from the initial extradition proceedings:

• John Sloboda: WikiLeaks’ Iraq War Logs exposed 15,000 civilian casualties
• Khaled el-Masri, kidnapped and tortured by the CIA
• Reuters journalist Dean Yates: Assange told us what US wouldn’t 
• Patrick Cockburn: WikiLeaks showed the realities of war
• Ian Cobain: Only leaked docs confirm what governments cover up
• Andy Worthington on the value of the Guantanamo Bay prison detainee leaks 

Summers also said that the disclosures brought about the “cessation of some of the practices that they revealed,” potentially referring to the 2011 revelation that after WikiLeaks cables in 2010 documented war crimes by U.S. soldiers in Iraq, the Iraqi government refused to grant the U.S. military immunity going forward, leading the U.S. troops to ultimately withdraw from Iraq entirely.  

Because the U.S. refuses to operate without impunity. Look no further than its actions at the International Criminal Court (ICC), the first time the court looked into crimes committed by the U.S. in Afghanistan. International human rights lawyer Susan Akram wrote in September 2020, 

Claiming the ICC’s investigation into alleged war crimes by U.S. forces in Afghanistan poses a national security threat, President Donald Trump issued an executive order on June 11 effectively criminalizing anyone who works at the ICC. Its lawyers, judges, human rights researchers and staff could now have their U.S. bank accounts frozen, U.S. visas revoked and travel to the U.S. denied.

The following October, the new chief prosecutor at the ICC “deprioritized” the investigation of U.S. offenses in the conflict, deciding to instead focus only on crimes committed by the Taliban and the Islamic State.

Summers referenced these actions specifically. “The UK and the U.S. have taken very different paths since the end of the conflicts in Afghanistan and Iraq,” he said. “The UK has engaged in a public inquiry. The U.S. has taken another path. It has insulated officials from the ICC, it has conferred immunity from prosecution within the U.S., and it has classified such evidence as it exists under state secrecy laws.” 

The documents that Assange and WikiLeaks made public provide evidence for potentially hundreds of criminal actions like those investigated by the ICC.

“The fact that the U.S. had been seeking to impose global impunity should be a red flag for the motives for the prosecution of the person who disclosed those very crimes,” Summers said. This is a paradigmatic example of state retaliation for the exercising of political opinion. 

The U.S. considered going even beyond prosecution. As Yahoo News reported in September 2021, more than half a year after the district judge’s January 2021 ruling — meaning this is new evidence since then, all the more reason to grant an appeal for judges to properly assess it in context — the CIA drew up plans to kidnap and even kill Julian Assange while he was under political asylum in the Ecuadorian Embassy in London.

Against the background of obstructing anyone investigating these disclosures, the ICC investigation, and U.S. efforts to obstruct it, Summers said, “the evidence now shows that the U.S. developed a plan to either kill or rendition Mr. Assange to the USA.”

“There was a plan to kidnap and poison Mr. Assange from within the embassy. There were red flags everywhere.”

This is a blog post of our live tweets. See our synopsis of the day, ‘Julian Assange revealed US criminality in the public interest, High Court is told‘ and our hearing highlight. Find all extradition coverage here.

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February 20, 2024, — Julian Assange’s two-day hearing at the UK High Court begins today, as a two-judge panel will listen to arguments as to whether Assange should be allowed to appeal his extradition on the grounds that his prosecution is politicized and unprecedented and would prevent a fair trial. 

Foreign journalists barred from UK proceedings

AD Executive Director Nathan Fuller, who has been accredited to cover each previous portion of the hearing, was denied remote access. He will provide coverage here based on updates from our team on the ground:

For this hearing, potentially Julian Assange’s last in the United Kingdom, the Courts have denied access to all reporters outside of England and Wales, despite the fact that this case has implications for journalists in every country around the world.

We weren’t sure if Julian would be appearing in court today. His barrister Edward Fitzgerald confirms he will neither attend in court nor watch by videolink, as he is too ill.

Defense: politicized prosecution is barred by the Extradition Treaty

Fitzgerald outlines the chief arguments he’ll make in this 2-day hearing

Fitzgerald: Assange faces real risk of grossly “disproportionate penalty” if sent to the United States, with total potential imprisonment at 175 years. The Extradition Treaty would allow the US to amend or add charges which could expose Julian Assange to the death penalty.

We are back to some of the very first arguments made in this extradition hearing back in February 2020, about extradition and political offenses. The US/UK Treaty (PDF) bars political offenses. The 2003 Extradition Act does not do so explicitly. 

Fitzgerald has been reviewing cases where the Treaty (as opposed to the Act) has been applied to give “justiciable rights” in the past 

Fitzgerald has been explaining that the U.S. use of the Espionage Act is a classic “political” offense, and so should be barred under the Treaty. All of the charges allege he “obtained, received and disclosed national defense information”, making this a clearly political case. 

Fitzgerald has been taking the court through case law in extradition cases between the UK and various other countries, all finding that variations on accusations of espionage have all been deemed “pure political offenses” 

In any event, Fitzgerald says, the charges are clearly at least “relative political offenses” because of the “political motivation” attributed to Assange, seen in the phrases “non-state hostile intelligence service”, “waging cyber war against the United States”, etc. 

Fitzgerald notes that the District Judge accepted that Assange had “relevant political opinions” as testified to the court by defense witnesses Prof. Rogers, Noam Chomsky, and Daniel Ellsberg, with Rogers testifying that Assange did in fact induce a change in government policy 

The crucial question is whether to rely on the Treaty, which bars extradition for political offenses, or the Act, which doesn’t. Fitzgerald notes the Act does not explicitly allow them either; it’s simply silent on the question. Reviews case law on conflicts between Treaty & Act. 

Assange being punished for exposing war crimes

Mark Summers now arguing for the defense. Journalists and observers in the overflow room complain of extremely poor audio quality and occasional interruptions to the video feed. 

Summers reviews the accepted evidence. The cables Assange published disclosed extrajudicial assassinations, rendition, torture, dark prisons, and drone killings. 

These cables have been relied upon by foreign courts to establish war crimes for government officials and have been relied upon by Strasbourg to find evidence of rendition and torture. 

Summers: The evidence before the judge is that the disclosures brought about the cessation of some of the practices that they revealed. 

Collateral Murder, which was described to the judge in unchallenged evidence, is “the most important revelation since Abu Ghraib”, and sparked international outrage 

The Guantanamo Bay files show the treatment of detainees, described to the court as a “colossal criminal act” 

On the Afghan and Iraq documents, the evidence showed allegations of “extraordinary seriousness” and Mr Assange was invited to address the UN about this. 

“These were the most important revelations of criminal U.S. state behavior in history” – unchallenged evidence before the court. 

Summers: The district judge acknowledges none of this evidence in her judgment. 

There is an extensive case law on exposing state criminality, which qualifies as a political act where that criminality is endemic, is directed from the highest levels of society and enjoys political protection within that society. 

Summers: The disclosures in this case satisfy every single iteration of the test – what was being disclosed by the publications was criminality which permeates, was tolerated by and facilitated by the American government 

Summers: The district judge did rule out personal or financial motives – she recognized that what was going on here was the intentional exposure of criminality. See page 147 of her judgment (PDF).

That equates in law to opposition to the machinery, authority, or government of the state – see case references. 

Note for example the authorities are not concerned solely with corruption; exposing the complicity of government officials in murder; the case law understands that you can expose the crimes against others – you don’t have to be the victim of the crimes yourself. 

Summers warns that the US is going to argue that this is all prohibited territory – because there is no evidence the crimes were actually committed. He makes four points in response: 

1. Not a reflection of the judge’s decision
2. Doesn’t reflect the law
3. Doesn’t reflect any logic – this was the US’s own material about their own conduct
4. The courts have found these allegations to be true, including European Court 

The evidence before the district judge went one way: Mr Assange is being prosecuted for those exposures, and they are seeking to prosecute him to silence him.

There is a class of cases where state retaliation is straightforward – they use the criminal justice system to prosecute those disclosing. (Cites 5 cases.)

All of them concerned various states where the state retaliated by using the criminal justice machinery to silence them. 

Reviews the case of Yu, a union worker who exposed corruption in the state-run Chinese airplane factory where she worked. She was as a result arrested, forced to admit she organized workers, charged, and detained until she refused to refrain from any future revelations. 

Summers: The Court grappled to whether what she had done had amounted to the expression of a political opinion and, without doubt, found that it had 

Yu showed she had been charged because the police had imputed political opinions.

Yu is reflective of all cases in which the nature of the state retaliation is a prosecution for the disclosures in which it is assumed as axiomatic that that is connected to the disclosures 

Summers: While some cases may be difficult and some require inferential reasoning between exposure and state retaliation on the other, these cases aren’t. This is a paradigmatic example of state retaliation for the exercising of political opinion. 

Summers: Unfortunately the district judge addressed none of this evidence. She only briefly engaged with the compelling circumstantial evidence as to the US motivations lying behind this prosecution, called it “pure conjecture” without addressing or considering evidence 

Summers: the UK and the US have taken very different paths since the end of the conflicts in Afghanistan and Iraq. 

The UK has engaged in a public inquiry.

The US has taken another path: it has insulated officials from the ICC, it has conferred immunity from prosecution within the US, and it has classified such evidence as it exists under state secrecy laws. 

Of course, seeking impunity for torture and war crimes is in violation of customary international law.

The fact that the US had been seeking to impose global impunity should be a red flag for the motives for the prosecution of the person who disclosed those very crimes. 

Summers: the language of US officials that they would take any measures necessary to protect that impunity – is another red flag.

But the district judge didn’t mention any of this. 

CIA targets Assange for attempting to hold US accountable

Nor did she mention the US stance when the ICC opened the formal investigation, which prompted a string of attacks on states who might cooperate with the ICC; including threats by the US national security advisor to prosecute anyone who cooperated with the ICC’s investigation. 

Summers: 6 years went by (since WikiLeaks’ disclosures) without prosecution. The judge did not consider what specifically triggered the government into action after those years of non-prosecution 

The judge knew US officials denounced Mr Assange as a ‘political actor.’

Memorably, they include the director of the CIA describing WikiLeaks as a non-state hostile intelligence agency; saying Assange had made common cause with dictators, and accused him of taking down America.

The judge did acknowledge that the CIA had been hostile to Mr Assange but dismissed it on the grounds that the CIA doesn’t speak for the administration. Of course, the director of the CIA is a member of the executive. 

In fairness to the judge – when she dismissed the suggestion of a hostile non-state intelligence agency – she like everyone else, had no idea it was a phrase with legal significance; no one in the defense team had any reason to suggest that the term had legal significance 

Yahoo News revealed later that it did have legal significance. 

She went on to conclude there was no presidential animosity (she had ignored Trump’s 2010 “death penalty” comment) – that conclusion is almost laughable now that we know from the evidence that President Trump had sought detailed options on how to kill Mr Assange in 2017. 

Against the background of obstructing anyone investigating these disclosures, the ICC investigation and obstructing it, the evidence now shows that the US developed a plan to either kill or rendition Mr Assange to the USA 

Summers: There was a plan to kidnap and poison Mr Assange from within the embassy.

There were red flags everywhere. 

The judge thought there was nothing fishy about the timing of the extradition request. Whether she was wrong or not on the evidence she had, new evidence (the Yahoo News story) shows that prosecution was commenced to provide a framework for the proposed kidnap and rendition of Mr Assange 

Unprecedented prosecution of a publisher

Summers moves on now to Article 7 of the ECHR.

The thrust of this argument is that Assange could not have been reasonably expected to know that he could be prosecuted for publishing in the public interest because no one has been prosecuted for publishing in the public interest before. 

Assange Indictment Poses Unprecedented Threat to Journalism

Journalists had never before been prosecuted under the Espionage Act.  Entirely unpredictable that a member of the press would be prosecuted contrary to longstanding practice. Judge’s analysis of entirely flawed because, contrary to authority, she passed the issue over to the US. 

This was wrong for 2 reasons:

1. It was her duty to decide whether Article 7 was violated;

2. And even if she could abrogate that to the US, she had to be satisfied that the Fifth Amendment operates in the same way as Article 7 – and it does not. 

Summers: Law must be foreseeable and it must protect against arbitrary prosecutions 

Summers: National security leaks to the media are routine in Washington – this was the unchallenged evidence the judge had.

The publishing of those national security leaks is equally routine. There are reporters in Washington who only report on national security matters. 

Leakers and whistleblowers have been prosecuted – see the case of Morrison, for example, just as here journalists have been prosecuted. But there has never been a prosecution for the obtaining or publishing of state secrets. 

Summers: According to the evidence of a witness that had been agreed, this prosecution crosses “a new legal frontier” – and this was the tenor of all of the evidence that the judge heard. 

Witnesses told the judge that even when the act was amended in 1950, nothing in the Espionage Act infringes upon freedom of the press. 

There had in fact never been a prosecution of anyone from outside of the government for obtaining and publishing state secrets 

Judge: Was there evidence of the publication of large names of human sources?

Summers: Yes, there is an individual called Mr Hay who had done precisely that. It is one of the cases relied upon by the US in their grounds of opposition. 

That case concerned the revocation of his passport.

That was the limit of state action taken against him. 

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Court is back in session. Summers still arguing for the defense. Says he’s been asked for examples of where anyone had been prosecuted for revealing the names of individuals. 

Summers notes the New York Times published the Pentagon Papers, and the judge in this case actually heard from the whistleblower in that case, and he told her that that publication had included names and he had taken the decision not to redact those names. 

Summers: [Ellsberg] was prosecuted because he was a state agent; the Times were never prosecuted 

Summers: In the 6 years of inactivity (non-prosecution of Assange) 2010-2017, many outlets published this very set of publications & materials. In particular, Cryptome published this material in the US and it’s still there, and they’ve never been prosecuted or asked to remove. 

There is a statute that addresses the deliberate disclosure of US intelligence sources and it is deliberately restricted to state officials; you cannot be prosecuted under it as a non-state official. 

There has never been a prosecution of someone for revealing names — cites one case, says and in that case, there was evidence of violence against those whose names were exposed. 

The primary point there is no American case which has sought to prosecute publishers who publish state secrets.

The Times case was a civil action where the Supreme Court held that they could not be restrained from publishing state secrets – even stolen state secrets 

Summers: In the district judge’s view, this was a matter to be determined by the American courts under the 5th Amendment. We disagree. It was her duty to determine if Article 7 was engaged, and if so, not to extradite. 

Summers says that since the district judge’s decision in this case in 2021, there have been other cases with clear guidance from this court about decisions such as this.

The notion of “leave it all to the requesting state” was rejected in these cases. 

Article 10: Freedom of Expression

Moving on to Article 10 of the ECHR

Judge Sharp asks: Are you saying that Article 10 applies to all acts in the indictment?

Summers: Yes – I will take them each in turn

Article 10 protects freedom of expression. Case law has established some national security exceptions. Some back and forth, with judge first asking about how Article 10 applies to Chelsea Manning as the whistleblower.

Summers says whistleblowers like her do get Article 10 protection 

The judge asks if the defense argues that Article 10 applies to Manning here only when balanced against the state’s legitimate security interest or that Article 10 covers any publication at all.

Summers says there’s a balance at play, and if appropriate, the whistleblower is protected.

Discussion moves to a whistleblower’s choices for disclosure, ‘official’ or ‘internal’ channels contrasted with ‘alternative’ ones. 

The expectation of the court is that the whistleblower will use internal channels that are realistically available to them. But the court recognizes that there are circumstances where “direct external reporting” is justified 

Summers: Ms Manning was exposing apex-level crimes which were condoned by the US military, and only direct reporting would work 

Satisfying the other criteria for Article 10 protection, that the information be true: Ms. Manning revealed her information unedited and it was authentic – and was true and not only believed it to be true but has been verified to be true by courts around the world 

Third, on motive: Manning was acting in good conscience. No one has ever suggested anything other than good conscience. 

Exposing crimes is in the public interest

As to whether the information is truly in the public interest: the information in question documented abuse of office, illegal conduct, or wrongdoing – all obvious issues of public interest. Exposure of state criminality is squarely at the highest level of public interest disclosures 

The court at this stage will balance the interest in your [the whistleblower’s] disclosure against the duty you have violated. 

It’s a balance between the importance of the disclosure & the obligation to protect secrets, like with Manning, and the court is clear that there can be cases where the interest and need for the public to know the content of the disclosure outweighs the duty of confidentiality. 

The court talks about a democratic system where the government needs to be subjected to public scrutiny. 

Summers: As far as Manning was concerned, the public interest in her disclosures outweighed the obligation.

Judge: You argue that with regard to the names of sources?

Summers: Yes and I will get there. 

The evidence in this case is that no harm has actually been proved to have occurred – there is no allegation that anyone named has actually come to harm. This is an important matter so far as this balance is concerned for Strasbourg. 

The sheer weight and monument of the disclosures in this case, it eclipses the duty of secrecy and the hypothetical risk of harm to those who were doing all of this. 

The Importance of WikiLeaks’ releases

Showing how important these documents are: Pakistan High Court relied on this information, and the ICC is utilizing these disclosures to investigate war crimes. 

Summers says the defense believes the court would strike this balance in favor of Ms Manning in a whistleblower context if the question was legally before them. 

So the question follows if Article 10 protects the disclosure of Manning to Mr Assange, despite her obligations of secrecy and risk of harm, how can Article 10 prohibit Assange from receiving and publishing that material to the public? 

What would the European Court of Human Rights think?

If it was ever seriously ventilated, the ECtHR would look at special protections for whistleblowers, but then also for publishers.

It would recognize the constitutional watchdog role of the free press; the right of the public to receive and the press to impart information. 

It would recognize the importance of accountability for government action in secrecy.

It would recognize the scope of public interest and ensure proper functioning of political democracy.

Exposures in this case, in addition to risking harm to those undertaking all of this criminal activity, brought about the end of drone killings in Pakistan; & brought change to the rules of engagement in Iraq to prevent the kind of machine gun killing we saw in Collateral Murder. 

The [ECHR] court would understand that these disclosures in the end contributed to the end of the Iraq war. All of that would play into the balance and the outcome would be precisely the same [for Assange] as it had been for Ms Manning. 

It is difficult to conceive of a disclosure of greater public interest than that that took place in this case. That public interest would eclipse all else.

All the more easily for Mr Assange than Ms Manning — because he was not under any duty of secrecy. And Strasbourg clearly recognizes the difference, 

Then there was a back and forth between High Court Judge Sharp and defense lawyer Summers about whether the district judge addressed these issues or not — she addressed Article 10 but not the public interest. 

Judge says the public interest could have been taken into account with these disclosures but without the inclusion of names — basically says WikiLeaks didn’t have to release unredacted names to achieve this public interest. 

Summers: Strasbourg [meaning ECHR] can look at that and consider that it was never intended; there was a huge amount of evidence of how that disclosure happened as a result of the unforeseeable action of one individual journalist at the newspaper that was involved 

Judge Sharpe mentions indiscriminate disclosure which was condemned by the Guardian and others.

Summers says the problem is that the judge never undertook this balancing act which would weigh these issues against each other, including the fact no harm has come from the disclosures. 

What the judge did acknowledge, Summers notes, is that Mr Assange was publishing and seeking to bring about change – and Strasbourg would recognize this as well. 

ECHR would recognize that soliciting leaks (“curious eyes never run dry”) is protected newsgathering activity.

Countless examples of ‘most wanted lists,’ and witnesses said that is normal, unobjectionable newsgathering activity; an inherent part of protected press freedom 

Summers continues, imagining for the court what the European Court of Human Rights would say about aspects of the allegations. Concludes that the only balance in this case is public interest in disclosure against risk of harm if the crimes are disclosed.

End of Article 10 discussion and the end Summers’ submissions. Ed Fitzgerald continues for the defense. 

A fair trial in the United States?

The defense argues for many reasons that Assange can’t get a fair trial in the United States.

US prosecutor Gordon Kromberg said that the government may argue at a trial for Assange in the US that “foreign nationals are not entitled to protections under the First Amendment” 

Fitzgerald notes that it’s not just the prosecutor; Pompeo said it too: he has no First Amendment rights.

It’s a chilling prospect – if you are a foreigner then you don’t have any rights. 

Moved on to a discussion of potential sentencing in the US, including the question of whether ‘enhancement’ could be applied (such as a ‘terrorism enhancement’ like the one given to alleged WikiLeaks Vault 7 source Joshua Schulte, leading to his 40-year prison sentence).

The Trump Administration’s Politicized Prosecution of Julian Assange

The bigger point is that Vault 7 was what led to Mr. Pompeo going off the deep end on 7 March 2017, saying WikiLeaks is a non-state hostile intelligence agency, saying Assange’s arrest is a priority, initiating surveillance through UC Global, & on 21 December they request his provisional arrest. 

This is all a hectic and angry reaction to the publication of Vault 7 for which Mr Schulte received a sentence of 40 years in prison. It is clear, we say, that the publication of Vault 7 was of particular concern to the US authorities. 

Fitzgerald argues that a US court may increase a sentence up to the statutory maximum even in relation to other conduct that is not charged or relied on in the current indictment — for example, Vault 7 publications.

Fitzgerald then returns to the revelations that the CIA considered killing or kidnapping Assange. He stressed the importance of looking at this plot in the context of Pompeo calling Assange and WikiLeaks a “non-state hostile intelligence agency,” and that viewed together there is sufficient evidence to suggest Assange could be targeted in this way.

Finally, Fitzgerald argues that these facts should also be considered in the context of the so-called “assurances” the U.S. has given the courts about what type of conditions Assange could face if extradited, including that he won’t face the death penalty and that he could potentially serve out his sentence in an Australian prison. These “assurances” contain their own caveats that undermine them, and the U.S. has reneged on such promises in the past. 

The U.S. could potentially add charges, related to Vault 7 or otherwise, that could expose Assange to the death penalty. The government “assuring” the court it would never do that is the same one that drew up plans to poison him. 

With that, the court adjourned for the day. Court returns tomorrow at 10:30am GMT.

---

Member of Julian's legal team, @suigenerisjen , outlines today's court proceedings#FreeAssange pic.twitter.com/2wupdYnRyI

— Free Assange – #FreeAssange (@FreeAssangeNews) February 20, 2024

Vince Destefano of @DefenseAssange outside The Royal Courts of Justice pic.twitter.com/gV2YcHHYBp

— Free Assange – #FreeAssange (@FreeAssangeNews) February 20, 2024

February 19, 2024 — Julian Assange returns to court tomorrow and Wednesday, Feb. 20-21, at the Royal Courts of Justice in London, as a two-judge panel on the UK High Court listens to his final plea to appeal his extradition from the United Kingdom to the United States.

The judges’ ruling will not approve or deny Assange’s extradition but rather it will decide whether Assange should be granted a full appeal hearing on these issues at all.

Over the course of the two-day hearing, Assange’s lawyers will present the arguments that they believe are worthy of reevaluation, and the Crown Prosecution Service barristers acting on behalf of the U.S. government will be given time to respond. While previous appeal hearings dealt with Julian’s mental health, his likely prison conditions, and whether extradition would put him at unjust risk of suicide, this appeal will deal much more with the nature of the charges against him and what he would face in the courtroom if sent to the United States. 

The defense team intends to argue that this is a politicized prosecution, that Assange couldn’t receive a fair trial in the U.S., and that the charges against him are unprecedented.

Stella Assange has detailed these arguments in this thread: 

 1. Julian Assange should not be extradited to face prosecution and punishment for his political opinions exposing state criminality. Assange is being prosecuted for exposing US government criminality including war crimes and torture. There is extensive evidence of Assange’s political opinions on the importance of transparency in being able to hold governments accountable to deter future abuses. Extradition for political opinions is not allowed. The new evidence which emerged since the hearing of the C.I.A. plans to kidnap and/or kill Assange further supports this ground.

2. Julian Assange should not be extradited to face prosecution where the criminal law is being extended in an unprecedented and unforeseeable way. This is the first time in US history that a publisher has been prosecuted for obtaining or publishing (as opposed to leaking) US state secrets. The drafters of the Espionage Act did not intend for publishers to fall within its ambit, unchallenged expert evidence showed that receipt and publication of state secrets is routine, and that there was an ‘unbroken practice of non-prosecution’ of publishers. 

The prosecution ‘crosses a new legal frontier’ and ‘breaks all legal precedents’. Extradition would therefore expose Assange to a novel and unforeseeable extension of criminal law. To extradite Assange would be a grave violation of Article 7 ECHR.

3. Julian Assange should not be extradited because his prosecution amounts to a grave violation of his right to free speech. Publishing state secrets can play a vital role in a democratic society and criminal prosecution and conviction for such publications will deter the press from playing this ‘public watchdog’ role. The US indictment against Assange criminalizes essential journalistic practices and imposes a disproportionate sentence (175 years). To extradite Assange would be a grave violation of Article 10 ECHR.

4. Julian Assange should not be extradited given that the US affirms that he may not be granted any First Amendment protections at all. The US said it would argue at trial that Assange would not get First Amendment protection (Free Speech protections) as he is not a US national (he is Australian). In other words, as a defendant he would be prejudiced at a trial as he is not a US citizen.

5. Extradition should be barred because Julian Assange will not receive a fair trial. He cannot mount a public interest defense. In the US system, there is a tradition of coercive plea bargaining via overcharging to secure a conviction. Julian Assange faces 175 years for his journalism. The jury pool will be drawn from people connected to US Government national security agencies and contractors, and therefore likely to be prejudicial to Julian Assange. They will also be sensitive to public comments made by the US President and C.I.A. Director, tainting the presumption of innocence. Evidence obtained through the inhuman and degrading treatment of Chelsea Manning, spying on his lawyers and the illegal removal of Julian Assange’s legal files from the Ecuadorean Embassy mean there is no prospect for a fair trial. To extradite him would be a grave violation of Article 6 ECHR.

6. The US-UK Treaty prohibits extradition for political offenses meaning Mr Assange’s extradition would violate the treaty, international law and amounts to an abuse of process (including Article 5 ECHR). The offenses with which Assange is charged are all formally “pure political offenses” and therefore are extradition-barred under article 4(1) of the US-UK Extradition Treaty. It is an abuse of process for the US to make an extradition request which is prohibited under the terms of the Treaty.

7. Renewed application to admit fresh evidence about US plans to kidnap/render/assassinate Mr Assange in 2017 – relevant to his Article 2 and 3 ECHR rights. The C.I.A. planned to kidnap and assassinate Assange. This indicates that he will be subject to inhuman and degrading treatment if extradited to the US. To extradite Assange would mean delivering him right into the hands of the very people who plotted to assassinate him.

8. The Extradition Treaty would allow the US to amend or add charges which could expose Julian Assange to the death penalty. Under the same facts alleged in the extradition request, Julian Assange can be recharged under provisions of the Espionage Act which carry the death penalty. It is noteworthy that Chelsea Manning was charged with ‘aiding the enemy’, which carries the death penalty and US government officials have publicly labelled the allegations against Assange as treason and called for the death penalty.”

Check back here for continued coverage of Julian Assange’s extradition proceedings. 

January 24, 2022 — In an extremely brief court hearing in London this morning, the UK’s High Court announced that it has certified a point of law for Julian Assange to be able to apply to appeal to the Supreme Court. The High Court ruled not to allow the appeal itself but to certify the question of what stage in the extradition hearing process ‘assurances’ can or should be introduced. Assange is now allowed to apply to appeal on that specific point to the UK Supreme Court.

• Explanatory Background Note: High Court Decision in USA v Julian Assange Extradition Proceedings

Statement from @StellaMoris1 today outside the High Courts after Julian Assange won his application to appeal to the UK Supreme Court#FreeAssangeNOW #DropTheCharges pic.twitter.com/l0ypaU9CDB

— Free Assange – #FreeAssange (@FreeAssangeNews) January 24, 2022

• See Assange’s full application for Supreme Court appeal certification here

In January 2021, District Judge Vanessa Baraitser ruled that it would be oppressive to extradite Assange on the grounds that it would drive him to suicide. The U.S. government appealed that decision, in part on the grounds that it should have been allowed to offer the district court “assurances” regarding Assange’s prospective treatment in the United States during the extradition hearing rather than afterward on appeal. The High Court overturned the lower court’s ruling, partially on the point that the judge should have informed the U.S. that it was “minded” to rule in Assange’s favor and allowed the U.S. government to offer assurances.

Today was a partial victory but punishment by process – Statement by @khrafnsson outside Royal Courts in London#FreeAssangeNOW #DropTheCharges pic.twitter.com/gZSFOhYkCy

— Free Assange – #FreeAssange (@FreeAssangeNews) January 24, 2022

Assange will now appeal this point to the Supreme Court, which must first decide whether to allow an appeal hearing before setting a date. 

Journalists attempting to cover today’s legal proceedings remotely were provided with a video link just minutes before court was in session. However, they were never actually able to see what transpired in court, viewing only a blank screen instead. Those of us reporting on today’s developments had to rely on public tweets from those physically in attendance in London. 

The legal question of accepting assurances post substantive hearing was argued in the High Court

Judges had ruled in USA's favour & echoed their refusal on these grounds but accepted that the matter is questionable in the SC

The real issue is that these assurances are worthless pic.twitter.com/BK75wsBE4r

— Stefan Simanowitz (@StefSimanowitz) January 24, 2022

January 21, 2022 — The UK High Court will deliver its decision on Monday, January 24th, at 10:45am London time as to whether to permit Julian Assange to appeal the U.S. extradition decision to the UK Supreme Court on points of law of general public importance. Julian Assange’s fiancée Stella Moris will be there to give a statement.

The judgment will either:

1. Certify that the point(s) of law raised by Julian Assange are of general public importance–thus giving him permission to lodge an application with the UK Supreme Court; or
2. Deny such certification, in which case the extradition order will pass to UK Home Secretary Priti Patel to authorize or deny Mr. Assange’s extradition.

The judgment will be read out at 10:45am London time at:

Royal Courts of Justice
The Strand
WC2A 2LL

Background:

• Evening Standard | Julian Assange’s lawyers begin process for Supreme Court Appeal
• Assange Defense | Stella Moris statement on Julian Assange’s Supreme Court appeal
• Daily Mail | Julian Assange’s fiancee says she wants to wed the Wikileaks founder behind bars this year as he spends his 1,000th day in jail

December 23, 2021 — This morning at 11:05 Julian Assange filed an application for leave to appeal to the Supreme Court the High Court’s ruling that he can be extradited to the US on three grounds.

The High Court’s ruling in USA v Assange raises three points of law of general public importance that have an impact on the procedural and human rights safeguards of a wide range of other types of cases.

On December 10th, the High Court upheld the Magistrates’ Court’s assessment, based on the evidence before her, that there was a real risk that, should Julian Assange be extradited to the United States, he would be subjected to near total isolation, including under the regimes of SAMs (Special Administrative Measures) and/or ADX, (administrative maximum prison) and that such isolation would cause his mental condition to deteriorate to such a degree that there was a high risk of suicide. These findings led the lower court to block the extradition under s. 91 of the Extradition Act, which bans “oppressive” extraditions.

However, the High Court overturned the lower court’s decision to block the extradition, based solely on the fact that after the US lost the extradition case on January 4th 2021, the US State Department sent a letter to the UK Foreign Office containing conditional assurances in relation to Julian Assange’s placement under SAMs and ADX. The assurances letter explicitly states in points one and four that “the United States retains the power” to “impose SAMs” on Mr. Assange and to “designate Mr. Assange to ADX” should he say or do anything since January 4, 2021 that would cause the US government to determine, in its subjective assessment, that Julian Assange should be placed under SAMs conditions and/or in ADX Florence. These conditional assurances alone were considered sufficient by the High Court to overturn the lower court’s decision.

Under English law, in order for the application to have a chance to be considered by the Supreme Court, first the same High Court judges who ordered Julian Assange’s extradition must certify that at least one of the Supreme Court appeal grounds is a point of law of general public importance (s.114 of the 2003 Extradition Act).

Julian Assange’s application for leave to appeal to the Supreme Court is therefore currently under consideration by the High Court judges. It is not known how long it will take for the decision to come down, but it is not expected before the third week of January.

For background, see Julian Assange’s filing opposing the US extradition in the High Court.

— Stella Moris

December 10, 2021 — Britain’s High Court ruled to approve the United States’ appeal of the District Judge’s decision not to extradite WikiLeaks publisher Julian Assange, sending the case back down to the Magistrate’s level for his extradition to be ordered. Assange’s fiancee Stella Moris called the decision “dangerous and misguided” and a “grave miscarriage of justice.”

Lord Justice Holroyde summarized the ruling and explained that the High Court had denied three of the U.S. government’s five lines of appeal argument which dealt with District Judge Vanessa Barrister’s handling of evidence in assessing Julian Assange’s suicide risk upon the order of his extradition. The High Court granted the U.S. government’s two other grounds for appeal dealing with the so-called ‘assurances’ the U.S. purports to provide regarding the treatment Assange would receive in prison. 

The U.S. had argued to the High Court that Judge Baraitser should have notified them during the extradition hearing that she was “minded” to rule against extradition on grounds of oppressive conditions so that it could provide assurances before she delivered her final verdict. 

Assange’s defense argued in response, per the High Court’s summary, “The offer of assurances comes too late. They do not remove the real risk of detention subject to SAMs and/or in ADX, or the real risk of detention in ADSEG and at Alexandria Detention Centre. In any event, even if the assurances are admitted the appeal should not be allowed but the case remitted to the judge with a direction to decide the relevant question again.”

The High Court sided with the U.S. on this question, and found that the assurances the U.S. gave were responsive to Baraitser’s specific concerns regarding Assange’s prospective treatment. “It follows that we are satisfied that, if the assurances had been before the judge, she would have answered the relevant question differently,” they write. 

In ruling to allow the U.S. government’s appeal, the High Court sends the case back down to the Westminster Magistrates’ Court with a direction for the district judge to then send the case to the Secretary of State to approve the extradition.

Responding to the ruling, Stella Moris said, “We will appeal this decision at the earliest possible moment.”

On 4 January 2021, a UK judge ruled that extraditing Julian Assange to the United States would be oppressive, would lead to his death and must be stopped. Mr. Assange faces a 175-year sentence.

Two days before leaving office the Trump Administration appealed this decision, and appeal arguments were heard by the UK’s High Court on 27-28 October 2021. The High Court is due to rule on the U.S. appeal imminently. See Julian Assange’s full response to the U.S. appeal effort here.

The U.S. purports to give “assurances” about the treatment Julian Assange would face in a U.S. prison, in its attempt to overturn the district judge’s opinion.  These “assurances” specifically allow the U.S. to inflict extreme isolation on Mr. Assange, explicitly asserting that the U.S. government can still impose the very prison conditions that the magistrate found would kill him. Amnesty International says these so-called assurances “leave Mr. Assange at risk of ill-treatment” are “inherently unreliable” and “should be rejected.”

The U.S. prosecution is entirely related to documents Julian Assange published in 2010 revealing war crimes and major human rights abuses. Mr. Assange faces a 175-year sentence if extradited.

The decision to prosecute Julian Assange has been universally condemned by all major free speech, human rights and media organizations as an unprecedented threat to the public’s right to know.

The ACLU and 24 other groups recently reiterated their opposition to Julian Assange’s prosecution as a “grave threat to journalists and freedom of the press” which the government should “drop immediately” following the extraordinary revelation that the CIA deployed a multipronged physical and informational operation against WikiLeaks which included plans to assassinate or kidnap Mr. Assange. Discussions over kidnapping or killing Mr. Assange occurred “at the highest levels” of the U.S. administration.

Julian Assange is being held as an unconvicted remand inmate at the high-security Belmarsh prison, where he has been since April 2019. Prior to this he spent seven years in effective detention in London’s Ecuadorian Embassy, having been granted political asylum. Mr. Assange has been in detention in one form or another since 2010. Mr. Assange’s fiancée Stella Moris, and their two young children who are British live in the UK. Mr. Assange is an Australian national who has worked in the UK for many years.

Reporters Without Borders and the UK National Union of Journalists say: “Our government must ensure the UK is a safe place for journalists and publishers to work. Whilst Julian Assange remains in prison facing extradition, it is not.”

Appeal hearing concludes as defense dismantles U.S. arguments

On the second day of Julian Assange’s extradition appeal hearing, the defense laid out its arguments to uphold the District Judge’s ruling which barred Assange’s ruling on medical grounds. Yesterday, the prosecution attempted to undermine a renowned psychiatrist, admitted its prison assurances are “conditional,” and tried to downplay how harsh Assange’s US conditions would be.

Before the proceedings began, Assange’s fiancée Stella Moris clarified some misreporting about Julian’s condition. “Reports that Assange didn’t attend court in person due to medication are incorrect,” she wrote. “He asked to appear in person. The request was rejected. The medication interfering with his ability to follow has nothing to do with the fact he wasn’t permitted to attend court.”

Edward Fitzgerald, Barrister for the defense, addressed grounds 1, 3, and 4 of the U.S. appeal, all dealing with evidence surrounding Assange’s mental health and whether his psychiatric condition and prospective treatment are so oppressive so as to render an extradition unjust. In the afternoon, Mark Summers QC addressed grounds 2 and 5, comprising the U.S.’s claims of assurances that Assange wouldn’t be placed in the most severe and isolating conditions in a U.S. prison. 

• Assange Defense Appeal Arguments

Fitzgerald argued that in her January 4, 2021 ruling, District Judge Vanessa Baraitser carefully weighed defense and prosecution testimony and evidence, applied the appropriate test based on relevant case law (Turner v. USA), and reasonably found overwhelming evidence supporting the finding that ordering his extradition would put him at grave risk of suicide. She found that Assange is severely depressed, that a “single-minded determination” resulting from his Asperger’s Syndrome would reduce his capacity to resist suicide, and that these factors combined with the prospect of an all-but-guaranteed oppressive prison regime and life sentence in the United States put him at grave risk of suicide should his extradition be ordered. 

To highlight just how justified Assange’s fears have been, Fitzgerald also reminded the court of the recent Yahoo News revelations, based on conversations with more than 30 former government officials, that the CIA under the Trump Administration made serious plans to kidnap and even assassinate Julian Assange while he was in the Ecuadorian Embassy in London. 

Because the prosecution spent such a considerable portion of yesterday’s proceedings homing in on the fact that Dr Michael Kopelman, the psychiatrist who evaluated Assange over the course of many in-person interviews, initially omitted the fact that Julian was in a relationship with Stella Moris, Fitzgerald again explained how misleading it is to call this deceptive. Kopelman made the court aware of this fact well before the September 2020 extradition case, the judge addressed this in her ruling, and she explicitly said that she “did not accept that Professor Kopelman failed in his duty to the court.”

• Defense chronology surrounding Assange’s family and Dr Kopelman
• Declaration of Assange attorney Gareth Peirce on Prof Kopelman

Fitzgerald also countered the prosecution’s off-hand comment from yesterday suggesting Dr. Sondra Crosby’s testimony should be ignored because she “is just a GP and a friend of Assange’s.” He explained that Dr. Crosby is an expert on physical and psychological impact of torture who took an interest in the case due to its severe and unusual nature. 

Finally, the prosecution said that Dr. Kopelman was the only doctor to find Assange is on the autism spectrum. The judge’s ruling directly contradicts that. Dr. Quinton Deeley, a consultant developmental neuropsychiatrist at the National Autism Unit at Bethlem Royal Hospital, “found that he met the diagnostic criteria for an autism spectrum disorder albeit that his was ‘a high functioning autistic case’ and Asperger’s syndrome disorder,” the judge wrote.

Assurances are inadequate and unreliable

After the lunch break, Summers argued for the defense that the prosecution’s “assurances” regarding the prison conditions Assange would face in a U.S. prison pre- and post-trial cannot be trusted, and are inadequate even if they could be. 

The defense argues that the U.S. assurances regarding prison conditions:

• are late, having been given after the District Judge ruling (after the evidentiary stage)
• address only 2 of the 7 bases for the finding of a substantial risk of suicide
• don’t even adequately address the limited issues they purport to address
• can’t be considered in good faith when considering the U.S. vindictiveness, particularly the CIA’s vituperative plans

The prosecution has argued that the judge should have notified them ahead of time that she was “minded” to find Assange’s suicide risk to be too high, so that they could have provided these assurances during the evidentiary stage. But as Summers points out for the defense, Special Administrative Measures (SAMs), solitary confinement, and ADX Florence were continuously points of discussion throughout the extradition hearing. The U.S. could have taken them off the table at any time. The judge addressed this very point in her ruling, noting that “[US attorney and witness] Mr. Kromberg acknowledged that their imposition is possible.”

• Testimony from Sept. 2020: Declaration of Maureen Baird, U.S. Prison Warden

But even taking the assurances at their word, “The newly proffered and conditional assurances do not in fact remove the real risk of detention on SAMs or on ADX. They certainly do not remove the very real risk of detention in administrative segregation.”

The assurance that Assange wouldn’t be subject to SAMs actually “does not prevent the imposition of SAMs at all. It expressly reserves to the USA the power to impose SAMs on Mr Assange ‘in the event that, after entry of this assurance, he was to commit any future act that met the test for the imposition of a SAM.”

By focusing so narrowly on SAMs and the ADX Florence, the prosecution is attempting to skirt the fact that U.S. prisoners not in those conditions face isolation in many other ways. “The assurances attempt to address one notorious prison regime and one notorious prison,” the defense argues, “and say nothing about any of the other severely isolating prison regimes or other notorious prisons in the USA about which the DJ heard copious evidence.”

The prosecution would later attempt to counter this point by suggesting the U.S. Bureau of Prisons doesn’t practice solitary confinement. Administrative Segregation (AdSeg) can’t be considered solitary confinement, Lewis said, because Assange would be allowed to visit with his lawyers. But anyone with any familiarity with U.S. prison conditions sees past these euphemistic disguises. The National Immigrant Justice Center, a U.S.-based human rights organization, writes, 

“The hole, AdSeg, protective custody, SMU, SHU—are all terms used to refer to solitary confinement, a form of incarceration where a prisoner is locked up for 23 hours a day with little or no human contact. Prisons often hide behind these rhetorical labels to avoid scrutiny under legal sanctions that prohibit indefinite placement in solitary confinement and require due process for those who are sentenced.”

The defense also notes that the ADX assurance “bizarrely promises not to detain at ADX ‘pre-trial’ – something which could never happen (ADX is a post-conviction establishment)” and “does not in fact prevent post-conviction detention at ADX.”

“The evidence is overwhelming that regardless of SAMs, and regardless of the ADX, if extradited, Julian Assange is surely headed for extreme isolation, pre- & post-trial,” Summers said. Even if acquitted, after pre-trial solitary confinement and a lengthy trial, Assange could be re-arrested and could face isolation all over again. 

The prosecution has pointed to shorter sentences of Jeffrey Sterling (3.5 years), Daniel Hale (3.75 years), and Reality Winner (5.25 years) as evidence Assange might not get decades in jail. But the obvious corollary should be Chelsea Manning’s sentence, as she leaked the very documents Assange is charged with publishing and Assange is alleged to have conspired with her. Chelsea was sentenced to 35 years, which would amount to a life (or death) sentence for Julian.

This is particularly relevant to the US assurance that Assange could be transferred to an Australian prison. This assurance elides the fact that Assange’s U.S. case would very likely cycle through many appeals and span many years. “On the evidence,” the defense argues, “Mr Assange will most likely be dead before [this assurance] can have any purchase, if it ever could.”

But the U.S. cannot be trusted to keep the assurance about transferring Assange to an Australian prison even if it did have purchase. Summers cited the case of David Mendoza Herrarte, where a Spanish court was given assurances that Mendoza could serve his prison sentence in Spain if he were extradited to face trial in the United States first. In that case, the U.S. promised to send him to Spain, but when it came time to approve the prison transfer, the DOJ denied it. The Spanish court believed that the U.S. government was giving the assurance, but the U.S. then said that the prosecutor had only assured that Mendoza could apply for a transfer, and the DOJ reserved the right to deny it. 

Assurance cannot be trusted, Summers said, when it is caveated, it is conditional, and it is insufficient.” Furthermore, assurances cannot be trusted from the same government that made serious plans to render, kidnap, and even discussed killing Julian Assange.

The appeal proceedings then adjourned, at 4:30pm London time, with the judges closing that both parties have “given [them] much to think about.” No timeline was given for a decision, but we expect it to take weeks if not months. We’ll report back here as we learn more. 

• Guide to extradition testimony
• Our live-tweets from today’s hearing
• Overview of USA v. Julian Assange

• Prosecution claims Assange won’t face isolation in U.S. prison
• U.S. attempts to undermine renowned psychiatrist’s testimony
• Defense responds; judge preferred Kopelman

Assange too unwell to view proceedings remotely

Julian Assange’s extradition appeal hearing, which will turn in part on determinations about his health and risk of suicide, commenced with the news that Julian was too ill to even follow the proceedings by remote videolink from Belmarsh prison. Julian did enter the viewing box about midway through the morning’s session, but he appeared thin and unwell, and he could be seen leaving the room about an hour later.

Assange’s extradition was denied in January of this year when District Judge Vanessa Baraitser ruled that ordering his extradition would put him at such high risk of suicide so as to be “oppressive.” The U.S. is appealing that ruling to the UK’s High Court on the grounds that, it argues, the judge misapplied evidence as to Assange’s mental health, and the U.S. government can assure the court that Assange wouldn’t be held under the worst and most isolating conditions if sentenced to a U.S. prison.

Prosecution claims Assange won’t face isolation in U.S. prison

As the appealing party, the U.S. government argued first, led by James Lewis QC. Lewis broke up up its objections to each aspect of the judge’s finding — whether Assange’s mental health condition puts him at high risk of suicide, his personal capacity to resist that impulse, how prospective treatment affects that risk level. He began with the so-called “assurances” that Assange wouldn’t be placed in ADX Florence, the U.S.’s highest-security prison designed specifically to isolate its inmates, and that he wouldn’t be subject to Special Administrative Measures (SAMs), which are applied, often in national security cases, to even further restrict an inmate’s communication with the outside world. The U.S. worked to restrict all of the defense’s objections regarding prison conditions to ADX Florence and SAMs, attempting to narrow its burden of proof by arguing that if ADX Florence and SAMs were removed from the equation, Judge Baraitser would have ruled to extradite Assange.

Amnesty International has warned that assurances Assange wouldn’t be placed in ADX Florence and that SAMs wouldn’t be imposed are “inherently unreliable,” as they contain the crucial caveat that the U.S. can change its mind whenever it chooses, if it determines that Assange has done something to warrant isolation or SAMs. Lewis admitted that these assurances are indeed “conditional,” but he said that they must be, “otherwise it would give him a blank check to do whatever he’d like.”

Lewis argued against the defense’s contention that Assange would likely face solitary confinement in pre-trial detention by claiming that Assange would be allowed to visit with his lawyers whenever he would like. (Note that even in detention in the UK, Assange has gone for stretches of several months without being able to communicate with his legal team.) He also floated the possibility that Assange might not be convicted at all, despite the fact that more than 90% of U.S. federal cases result in guilty verdicts, and Assange would be tried in the U.S.’s harshest district, EDVA (a district that CIA whistleblower John Kiriakou, who has been convicted under the same Espionage Act of which Assange faces 17 counts, refers to as the “Espionage court”). 

U.S. attempts to undermine renowned psychiatrist’s testimony

The prosecution then moved to Assange’s mental health and the testimony of Professor Kopelman, the psychiatrist who examined and interviewed Assange and determined he would be at high risk of suicide if his extradition were ordered. The U.S. contends that the defense conflates criteria for breaching Article 3 of the European Convention on Human Rights, which says, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment,” and those for breaching Section 91 of the UK Extradition Act, which prevent extradition if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.”

As it did in the evidentiary stage in September 2020, the U.S. attempted to elevate the opinion of its own psychiatrist, Dr. Nigel Blackwood. over that of Dr Kopelman. Dr. Blackwood “accepted there was some risk of a suicide attempt linked to extradition but this did not reach a ‘substantial risk’ threshold.” In October 2020, Declassified UK reported that Dr Blackwood “works for an academic institute that is funded by the UK Ministry of Defence and linked to the US Department of Defence.”

The U.S. spent considerable time in the afternoon session repeating its arguments from the evidentiary stage of the proceedings back in September 2020. Lewis reiterated the U.S.’s feeling that Dr. Kopelman misled the court in his first psychiatric report by omitting his awareness that Julian was in a relationship with Stella Moris. In her ruling, Judge Baraitser addressed the issue head-on: 

“I did not accept that Professor Kopelman failed in his duty to the court when he did not disclose Ms. Morris’s relationship with Mr. Assange…. Professor Kopelman’s decision to conceal their relationship was misleading and inappropriate in the context of his obligations to the court, but an understandable human response to Ms. Morris’s predicament. He explained that her relationship with Mr. Assange was not yet in the public domain and that she was very concerned about her privacy. After their relationship became public, he had disclosed it in his August 2020 report. In fact, the court had become aware of the true position in April 2020, before it had read the medical evidence or heard evidence on this issue.”

The prosecution attempted to persuade the High Court that if it doesn’t find this renders Kopelman’s testimony inadmissible, it should at least find that it holds much less weight than Baraitser did. The U.S. argument boils down to this question of weight, rather than contestations of fact: which witnesses and statistics and pieces of evidence should be considered more seriously than others. Lewis complained that the judge didn’t adequately explain her reasoning for preferring Kopelman’s testimony. 

Defense responds; judge preferred Kopelman

But as Edward Fitzgerald pointed out when responding to the prosecution in the final half hour of today’s session, the judge can’t explain in detail her reasoning for weighing every bit of evidence more than others, and in fact she was quite clear about how she reached her conclusion. “I preferred the expert opinions of Professor Kopelman and Dr. Deeley to those of Dr. Blackwood,” Baraitser wrote. “[Dr. Blackwood’s] summary of the notes was significantly less detailed than the summary provided by Professor Kopelman and he did not appear to have access to all relevant notes.” For example, Dr. Blackwood didn’t even know why Julian was in the healthcare ward at Belmarsh, that ”Mr. Assange was finding it hard to control his thoughts of self-harm and suicide.”

The prosecution argued that the present tense in the phrase barring extradition on the grounds that “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him” means that only a defendant’s present mental health conditions should be considered, as opposed to how future prospective prison conditions might impact the risk of suicide. But Fitzgerald responded that Dr. Kopelman addressed this as well, finding that the mere ordering of Assange’s extradition would trigger this grave risk, so this was considered an imminent issue rather than a hypothetical.

Court adjourned after Fitzgerald’s point-by-point response to the arguments the U.S. made in court today. Tomorrow, the defense will have the majority of the day to argue its own response to the full government submission. We’ll return at the same time tomorrow. 

• Overview of USA v. Julian Assange
• Preview of appeal arguments
• Guide to extradition testimony
• All previous extradition coverage
• Video statements outside the courtroom
• Our live-tweets from the appeal hearing here