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.
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.