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.
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?
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
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, 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.