Hearing Coverage

Assange Final UK Appeal Request: Hearing Day 1

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.

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

Courtroom sketch by Matt Ó Branáin

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. 

Related reading: testimony on press freedom

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. 

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. 

Related reading: testimony on WikiLeaks releases in bringing justice and accountability around the world

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).

Related reading: US government officials’ bias against 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.

AD organizing director Vinnie DeStefano speaks outside the courtroom in London