March 26, 2024 — The UK High Court has issued a judgment that could grant Julian Assange limited permission to appeal his extradition to the United States but first gives the U.S. government an opportunity to give “assurances” to potentially avoid an appeal.
The court found that Assange has a “real prospect of success” on 3 of the 9 grounds of appeal:
- Ground iv) that Extradition is incompatible with article 10 of the European Convention on Human Rights (freedom of expression); “If (as might be the case) Mr Assange is not permitted to rely on the First Amendment then it is arguable that his extradition would be incompatible with article 10 of the Convention.”
- Ground v) If extradited, Mr Assange might be prejudiced at his trial by reason of his nationality, as “foreign nationals are not entitled to protections under the First Amendment”.
- Ground ix) Extradition is barred by inadequate specialty/death penalty protection: “The Secretary of State agrees that, if he is extradited, Mr Assange could be charged with offences that carry the death penalty and that there is nothing then to prevent the death penalty from being imposed.”
The ruling gives the U.S. three weeks to provide assurances that would address these grounds. If the U.S. declines to do so, the court will grant Assange right to appeal on those grounds. If, as is expected, assurances are given, there will be a hearing on May 20, 2024, to decide if the assurances are sufficient and to give a final ruling on permission to appeal.
Julian’s wife Stella Assange spoke outside the court following the announcement:
The court’s decision to avoid extradition for now was welcomed by press freedom organizations and journalistic unions, which reiterated their calls for the U.S. to drop the charges.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said:
‘The UK High Court’s ruling presents the U.S. government with another opportunity to do what it should have done long ago—drop the Espionage Act charges. Prosecuting Assange for the publication of classified information would have profound implications for press freedom, because publishing classified information is what journalists and news organizations often need to do in order to expose wrongdoing by government. It’s long past time for the U.S. Justice Department to abandon the Espionage Act charges and resolve this case.”
Michelle Stanistreet, NUJ general secretary said:
“A temporary reprieve is clearly preferable to an extradition that would have taken place in the coming days. However, the conditionality around the grounds of appeal, which are contingent on the examination of US government assurances that he will not face the death penalty and has the right to free speech, mean the risks to Assange and press freedom remain stark.
“Assange’s prosecution by the US is for activities that are daily work for investigative journalists – finding sources with evidence of criminality and helping them to get their stories out into the world. If Assange is prosecuted, free expression the world over will be damaged.”
Whistleblower and source protection group WHISPeR urged the British court not to trust U.S. assurances:
We regret that the Court declined to properly consider the political nature of this prosecution under what is a textbook case of a political crime, and continues to take a blinkered approach on the remaining questions it has left open for the May 20th hearing. We again strongly urge the High Court to apply the greatest possible skepticism of U.S. assurances. The U.S. government has certainly not earned a presumption of credibility on these issues.
As attorneys who have represented several defendants under Espionage charges in media leak cases, we can speak to these issues from direct experience. Our clients have been denied both the right to present a First Amendment defense and the supposedly humane prison conditions promised by the Department of Justice.
The U.S. government simply cannot make any meaningful assurance that any defendant can rely on First Amendment protections under an Espionage Act prosecution, much less a foreign citizen. The legal question is at best unresolved by U.S. courts, and the precedent is ominous. The Pentagon Papers case, the fullest test of the Espionage Act against the First Amendment to date, resulted in a Supreme Court opinion that pointedly left open the possibility that the U.S. government could punish the publication of government documents. Any assurance that Assange would be allowed to mount a meaningful First Amendment defense would be diametrically opposed to the U.S. Justice Department’s own position in previous media leak cases: that the Espionage Act does not allow a jury to even consider a First Amendment defense. In Thomas Drake’s case, the government sought to ban the use of words like “whistleblowing” in front of a jury. In prosecuting Daniel Hale, the government argued that his appeals to the First Amendment were merely “academic musings,” and “interesting thought exercises, but irrelevant to the case at hand”.
Trevor Timm, executive director of Freedom of the Press Foundation (FPF), said:
“We are glad Julian Assange is not getting extradited today. But this legal battle is far from over, and the threat to journalists and the news media from the Espionage Act charges against Assange remains. Assange’s conviction in American courts would create a dangerous precedent that the U.S. government can and will use against reporters of all stripes who expose its wrongdoing or embarrass it. The Biden administration should take the opportunity to drop this dangerous case once and for all.”
Jodie Ginsberg, CEO of the Committee to Protect Journalists, said,
“We are glad that the extradition of WikiLeaks founder Julian Assange to the United States will be delayed. His prosecution in the U.S. under the Espionage Act would have disastrous implications for press freedom. It is time that the U.S. Justice Department put an end to all these court proceedings and dropped its dogged pursuit of the WikiLeaks founder.”
PEN International and English PEN cosigned a statement,
Journalists and publishers sometimes risk their lives to uncover truths that powerful entities seek to conceal. By recognising that the UK and the US have not provided sufficient assurances, the High Court has proven that the concerns and fears expressed by Assange, his family and his legal team are well-founded.
Yet the court rejected some of Assange’s arguments, including that his extradition was political. We remain deeply concerned by the fact that the US was granted more time to make diplomatic assurances – despite Assange facing the risk of serious human rights violations if extradited to the US – and of the dangerous prospect of Assange’s extradition going ahead.
Once again, we urge the US authorities to drop all charges against Assange and withdraw their extradition request. We further call on the UK authorities to refrain from extraditing Assange, to release him from Belmarsh prison immediately, and to ensure he is reunited with his family.
We stand unwaveringly alongside Assange and fellow publishers and journalists around the world who courageously defend truth and justice in the face of adversity.
Simon Crowther, Legal Adviser at Amnesty International, said:
“The High Court’s decision today leaves in limbo Julian Assange and all defenders of press freedom — but the fight continues. The US lawyers now have a second opportunity to make diplomatic assurances which the court will consider in May. Instead of allowing this protracted legal process to continue, the US should drop all charges against Assange.
“The UK remains intent on extraditing Assange despite the grave risk that he will be subjected to torture or ill-treatment in the US. While the US has allegedly assured the UK that it will not violate Assange’s rights, we know from past cases that such ‘guarantees’ are deeply flawed — and the diplomatic assurances so far in the Assange case are riddled with loopholes.
“Unfortunately the court rejected some of Assange’s arguments, notably that the extradition was political. The court paused proceedings on the other grounds so that the US can make diplomatic assurances which it will then reconsider.“The US must stop its politically motivated prosecution of Assange, which puts Assange and media freedom at risk worldwide. In trying to imprison him, the US is sending an unambiguous warning to publishers and journalists everywhere that they too could be targeted and that it is not safe for them to receive and publish classified material — even if doing so is in the public interest.”
Chip Gibbons, Defending Rights & Dissent Policy Director, said:
We are glad Assange will have another opportunity, however narrow, to appeal his extradition. We share the UK Court’s concern over comments from US prosecutors that Assange may be denied First Amendment protections on the basis of his nationality. This is the press freedom case of the 21st century and a verdict against Assange will have an impact on press freedom broadly. The idea of putting him on trial for newsgathering and then saying he can’t rely on the First Amendment is an unacceptable prospect.
We are nonetheless disturbed that the UK courts have failed to recognize this is a case about press freedom and political expression, as well as granting the US government yet another chance to amend its flawed, defective extradition request.
Assange’s persecution for his journalistic activities is not only an affront to our First Amendment, it is a clear violation of international human rights law. It constitutes an attempt to extradite an individual for a purely political offense, something that should be impermissible. The extradition should be rejected on these bases, yet Assange has been refused an appeal on these grounds.
The ball is, yet again, in the Biden Administration’s court. They should uphold the First Amendment by dropping the charges. As the party driving the extradition hearings, they can at the very least walk away from the lengthy legal processes in the UK, ending this once and for all.
We are at a critical stage in the Assange case and we will be escalating our calls for the Biden Administration to uphold the First Amendment and defend global press freedom by dropping this Trump-era prosecution of a journalist for journalistic activities.
Karen Percy, media federal president of the leading Australian journalism union Media, Entertainment & Arts Alliance, said,
Julian Assange’s bid to overturn the extradition order is still alive but his legal limbo continues.
We remain concerned that there is still no certainty an appeal against his extradition will proceed, and even if it goes ahead that only a small number of grounds of appeal are possible.
Julian Assange needs more than assurances from the US about how he will be treated. The only clear path to freedom is for the US to drop the charges, end its prosecution and allow him to be released from jail.
Next month will mark five years of detention in Belmarsh Prison, where his health and mental wellbeing has worsened recently.
Media freedom continues to be imperilled the longer this case drags on.
The stories published by WikiLeaks and other outlets more than a decade ago were clearly in the public interest. The ongoing prosecution is politically motivated with the intent of curtailing free speech, criminalising journalism and sending a clear message to future whistleblowers and publishers that they too will be punished if they step out of line.
If the US government can extradite a citizen of another country, from anywhere in the world for publishing factual information it sets a dangerous precedent that will have a profoundly chilling effect on investigative journalism, discouraging journalists and whistleblowers from exposing vital information in the public interest.
We call on the Australian government to keep up the pressure on the US to drop the charges so Julian Assange can resume life as a free man.”